Rati Ram and Others vs State of Uttar Pradesh

Palok Basu, J.—I have heard Sri Balraj Trikha, learned Counsel for the applicants, at sufficient length. I wish, I could have been able to pursuade myself to accept the arguments put with extreme vehemence and sincerity, but for the reasons stated hereinafter, this petition has to be dismissed.

This petition u/s 482 Code of Criminal Procedure by Rati Ram and Ors. v. State of U.P. has been filed on the following facts. In a trial u/s 302/149 and allied sections, the applicants were sentenced to life imprisonment. They came up in appeal to this Court, when it was directed as under:

In the result the appeal is partly allowed, conviction and sentences of life imprisonment to each of the Appellants u/s 302/149 IPC, are altered to that u/s 325/149 IPC, and to a sentence of 5 years R.I. each. Rest of their conviction and sentences are as u/s 147/323/149 IPC, imposed by the trial court are maintained. The Appellants are on bail. They shall be taken into custody forthwith and sent to jail to serve out their sentences as modified by this Court, according to law.

(quoted from paperbook page 7)

The other relevant fact which has been stated in paragraph 11 internal page 17 of the paperbook, is that the accused/Petitioners challenged the order of the High Court, in the Hon''ble Supreme Court by filing a Special Leave Petition, which was refused on 15-12-1987. A further averment has been made, which may be quoted:

The Hon''ble court made an observation while dismissing the SLP of the accused Petitioners to make a prayer for release on probation to the High Court concerned, according to law.

On seeing this averment, I requested Sri Trikha, to produce a copy of the judgment of the Hon''ble Supreme Court. A photostat copy of the judgment has been passed on to this Court, which will form part of the record. The order of the Hon''ble Supreme Court reads as under:

The SLP is dismissed.

In the order, therefore, there is no such observation of the Supreme Court as has been quoted in para 11.

Sri Trikha, then argues that in the meantime, a letter has been allegedly written by Premraj, the informant in the instant case on 12-2-1988, addressed to the applicants, who are in jail. A copy of the said letter has been filed at page 57, as Annexure-1, (without any such marking on the said Annexure) Premraj has, according to the letter, expressed his desire to compound the offences. It is argued by Sri Trikha that the provisions of''Probation of Offenders Act'' 1958, may also be invoked in the instant case. Simultaneously, it has been prayed that the benefit of Section 360/361 of the Code of Criminal Procedure, may also be extended to the applicants, if compounding of the offences is not possible.

Sri Trikha relied upon the decisions reported in 1961 Patna 138 and 1964 Andhra Pradesh 449. In all fairness he also cited a case reported in 1958 Madras 452. While the two former cases contained observations that even though an appeal may have been finally disposed of, yet, for giving some relief on the question of sentence or the type of sentence which may be awardable to an accused in a given case, the Madras case has taken a view contrary to the argument advanced by Sri Trikha, the attention of the court was drawn to the other cases reported in 1928 Oudb 402, 1925 Calcutta 63, 1927 Lahore 139, just as they were referred to in the Andhra Pradesh and Patna Cases.

Lastly, Sri Trikha cited AIR 1965 SC 444. The Hon''ble Supreme Court in the said case held by a majority that benefit of Section 6 of the Probation of Offenders Act 1958, may have been extendable to the accused involved in the said case, since the Act had come into play before the High Court had dismissed the revision. Even though the question of applicability of the said Act was not raised before the High Court but because of the beneficial provisions, the High Court was directed to look into the matter afresh. On the facts of the present case, however, the said authority of the Supreme Court has no application.

Incidentally, I may mention here that in some recent decisions of Hon''ble Supreme Court, the law on the subject has already been laid down which answers adequately the arguments of Mr. Trikha. At once, I have three cases in mind, Sankatha Singh Vs. State of U.P., , Smt. Sooraj Devi Vs. Pyare Lal and Another, , and Naresh and Others Vs. State of Uttar Pradesh, , in which the effect of ''finality'' of judgment passed by trial or appellate court has been fully discussed. In the face of those Supreme Court decisions, the aforesaid rulings cited by Mr. Trikha appear to have lost relevance. In any case, since the instant matter stands decided by the Hon''ble Supreme Court in the aforesaid Special Leave Petition, I have only to consider whether this application u/s 482 Code of Criminal Procedure is maintainable or not.

According to my humble understanding the High Court''s previous order recording conviction and awarding sentence has merged in the order of the Hon''ble Supreme Court. That is to say, the directions contained in the judgment of the High Court quoted above has been upheld by the Hon''ble Supreme Court. Under the circumstances, this Court feels that it is not only inappropriate but may be improper to try to undo what the Hon''ble Supreme Court has already done, by taking recourse to this petition u/s 482 Code of Criminal Procedure. Sri Trikha himself suggested that a speaking order be passed so that if he is advised, he may take this matter, to the Hon''ble Supreme Court, hence this order.

In view of the reasons, stated above, this petition being without any force is dismissed summarily.