Salim Yakub Kara vs The State Of Maharashtra
2017 Latest Caselaw 8828 Bom

                                                                                     3. cri wp 88-17.doc


RMA      
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CRIMINAL APPELLATE JURISDICTION

                              CRIMINAL WRIT PETITION NO. 88 OF 2017


            Salim Yakub Kara                                              .. Petitioner

                                 Versus
            The State of Maharashtra                                      .. Respondent

                                                  ...................
            Appearances
            Mr. D.G. Khamkar Advocate for the Petitioner
            Mrs. G.P. Mulekar APP for the State
                                                   ...................



                              CORAM       : SMT. V.K. TAHILRAMANI &
                                              M.S. KARNIK, JJ.

DATE : NOVEMBER 17, 2017.

ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :

1. Heard both sides.

2. By Judgment & Order dated 7.6.2001 passed by the

learned Special Judge, Greater Mumbai under MCOC Act in

MCOC Special Case No. 3 of 1999, the petitioner - accused

No. 3 was convicted for the offence punishable under Section

120-B of IPC and Section 3(2) r/w S. 2(1)(a) of the MCOC Act,

1999 and sentenced to suffer R.I. for 10 years and to pay fine

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of Rs. 5 Lacs, in default to undergo R.I. for one year. The

petitioner was also convicted for the offence punishable

under Sections 489(B) and 489(C) of IPC r/w S. 120-B of IPC

and sentenced to suffer R.I. for 5 years and to pay fine of Rs.

5000/- in default, to undergo R.I. for six months. Further the

petitioner was convicted for the offence punishable under

Section 3(5) r/w S. 4 of the MCOC Act r/w S. 120-B of IPC and

sentenced to suffer R.I. for 5 years and to pay fine of Rs. 2

Lacs, in default to undergo R.I. for 3 months. The prayer of

the petitioner in the present petition is that the period of

imprisonment of 10 years imposed on him under Section

120-B of IPC & S. 3(2) r/w S. 2(1)(a) of the MCOC Act be

reduced to the period undergone by the petitioner.

3. In order to consider the prayer of the petitioner, it

would be necessary to record a few facts. Against the

Judgment & Order dated 7.6.2001 passed by the learned

Special Judge, Greater Mumbai under MCOC Act in MCOC

Special Case No. 3 of 1999, the petitioner had preferred

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Criminal Appeal No. 518 of 2001 before this Court. By

Judgment & Order dated 20th and 22nd December, 2006,

this Court dismissed the appeal preferred by the petitioner.

Once this Court has dismissed the appeal preferred by the

petitioner, it has become functus officio, hence, it is not

possible for us to consider the prayer of the petitioner.

Section 362 of the Code of Criminal Procedure clearly states

that the Court cannot alter a judgment in criminal matters

after the judgment or final order disposing of the case is

passed and the said order shall not be altered or reviewed

except to correct a clerical or arithmetical error.

4. Mr. Khamkar, the learned counsel for the petitioner

submitted that the appeal was not dismissed on merits but it

was dismissed as the petitioner/appellant was absconding

when the appeal came up for hearing. However, the fact

remains that the appeal has been dismissed by this Court,

hence, the Judgment & Order of the Sessions Court is

confirmed. In view of these circumstances, it is not possible

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for us to grant the prayer made by the petitioner of reducing

the sentence of the petitioner to the period undergone by

him. Rule is discharged.

[ M.S. KARNIK, J ]                    [ SMT. V.K. TAHILRAMANI, J. ]




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