Karnataka High Court
Syed Hussain S/O Mohammed Rasool ... vs The State Of Karnataka on 15 February, 2022
Bench: V Srishananda
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL REVISION PETITION NO.200027/2016
C/W
CRIMINAL REVISION PETITION NO.200030/2016
IN CRI.REV. PETITION NO.200027/2016
BETWEEN:
1. SYED HUSSAIN S/O MOHAMMED RASOOL
AGE: 26 YEARS, OCC: STUDENT,
2. SYED KHASIM S/O MOHAMMED RASOOL
AGE: 30 YEARS, OCC: MECHANIC
3. MOHAMMED RASOOL S/O MOHAMMED
HASSAN AGE: 71 YEARS, OCC: NIL,
ALL H.NO. 12-11-95, ARAB MOHALLA,
RAICHUR.
... PETITIONERS
(BY SRI SACHIN M. MAHAJAN, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH SADAR BAZAR P.S.
RAICHUR REPRESENTED BY THE SPP
2
HON'BLE HIGH COURT OF KARNATAKA
BENCH AT KALABURAGI.
... RESPONDENT
(BY SRI SHARANABASAPPA M. PATIL, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 (1) R/W 401 OF CR.P.C. PRAYING
CALL FOR RECORDS AND SET ASIDE THE JUDGMENT AND
ORDER DATED 09.12.2015 PASSED BY THE HON'BLE
CHIEF JUDICIAL MAGISTRATE AT RAICHUR IN
C.C.NO.385/2010 AND THE JUDGMENT DATED 14.03.2016
PASSED BY THE PRL. SESSIONS JUDGE AT RAICHUR IN
CRL.A.NO.51/2015, BY ALLOWING THE ABOVE PETITION.
IN CRI.REV.PETITION NO.200030/2016
BETWEEN:
SRI SYED SAMEER S/O SYED KHABALULLA
HUSAINI, AGED ABOUT 27 YEARS, OCC: STUDENT
R/O H.NO. 12/11-95/2, ARAB MOHALLA ROAD,
RAICHUR, DIST:RAICHUR.
... PETITIONER
(BY SRI ARUN CHOUDAPURKAR, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH SADAR BAZAR P.S
RAICHUR REPRESENTED BY THE SPP
HON'BLE HIGH COURT OF KARNATAKA
BENCH AT KALABURAGI-585104.
... RESPONDENT
(BY SRI SHARANABASAPPA M. PATIL, HCGP)
3
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 (1) R/W 401 OF CR.P.C. PRAYING
CALL FOR RECORDS AND SET ASIDE THE JUDGMENT AND
ORDER DATED 09.12.2015 PASSED BY THE HON'BLE
CHIEF JUDICIAL MAGISTRATE AT RAICHUR IN
C.C.NO.385/2010 AND THE JUDGMENT DATED 14.03.2016
PASSED BY THE PRL. SESSIONS JUDGE AT RAICHUR IN
CRL.A.NO.51/2015, BY ALLOWING THE ABOVE PETITION.
THESE PETITION COMING ON FOR FINAL HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner No.3 in Criminal Revision No.200027/2016
died on 15.01.2022. Hence, petition against petitioner
No.3 stands abated.
2. Heard the learned counsel Sri Sachin M.
Mahajan and Sri Arun Chowdapurkar for the petitioners in
both the revision petitions and the learned High Court
Government Pleader for the respondent - State. Perused
the records.
3. These two revision petitions are filed against
the order passed in C.C.No.385/2010 confined in criminal
appeal 51/2015. At the outset, the learned counsel for the
revision petitioner in Crl.Rev.No.200030/2016 contended
that after passing the orders on merits on 09.12.2015, the
learned Chief Judicial Magistrate purportedly on
entertaining an application on behalf of accused No.4
altered the final order and amended as per the application
and also other accused on 10.12.2015. According to
learned counsel Sri Arun Choudapurkar, said action on part
of the learned Chief Judicial Magistrate may be on the
application of the accused, is nothing but miscarriage of
justice as the learned Magistrate did not possess any
power whatsoever after passing the final order in view of
Section 362 of Cr.P.C.
4. In order to appreciate the said arguments, this
Court intends to cull out Section 362 of Cr.P.C., which
reads as under:
"362. Court not to after judgment. Save
as otherwise provided by this Code or by any
other law for the time being in force, no Court,
when it has signed its judgment or final order
disposing of a case, shall alter or review the
same except to correct a clerical or
arithmetical error."
5. A plain reading of Section 362 of Cr.P.C.
makes it clear that only arithmetical error or typographical
error can only be amended by exercising power under the
said provision and not alter the substratum of the
judgment of sentence as the learned judge who passes
final order would become functus officio.
6. Since the said amendment has been carried
out by the learned Magistrate, according to the learned
counsel for the petitioners the entire judgment has become
non est.
7. Unfortunately, the learned judge in the first
appellate Court did not bestow his attention to Section 362
of Cr.P.C. while reconsidering the judgment of conviction
and order of sentence passed by the trial Magistrate.
8. The learned High Court Government Pleader
however tried to oppose the said contention on behalf of
the revision petitioners contending that on the application
made by the accused only the amendment has been
carried out and therefore, no prejudice has been caused to
the accused.
9. Having regard to the above factual aspects of
the matter and also undisputed fact that the order dated
09.12.2015 came to be amended on 10.12.2015
purportedly on the application filed by the accused No.4,
which is opposed to provisions of Section 362 of Cr.P.C.,
the judgments are suffering from error of jurisdiction.
Thus, without adverting further on the merits of the matter
or other grounds which have been urged in the revision
petitions, this Court is of the considered opinion that the
order passed by the learned trial Magistrate dated
09.12.2015 (amended on 10.12.2015), whereby, the
accused persons have been convicted for the aforesaid
offences and the same is confirmed in Criminal Appeal
No.51/2015 needs to be set aside.
10. Having said thus, there is adjudication of the
lis by the learned Magistrate, but, the order passed has
become non est, the matter cannot be left as it is and the
matter requires to be reconsidered by the learned
Magistrate in accordance with law. Accordingly, following
order is passed:
ORDER
The criminal revision petitions are allowed.
The order dated 09.12.2015 and 10.12.2015 passed
in C.C.No.385/2010 confirmed in Crl.A.No.51/2015 dated
14.03.2015 is hereby set aside. The matter is remitted to
the trial Magistrate in C.C.No.385/2010 for fresh disposal
in accordance with law.
It is made clear that this Court has not expressed
any opinion on the merits of the matter. The trial
Magistrate shall hear the parties afresh and pass
appropriate order in accordance with law.
The accused/revision petitioners shall appear before
the trial Magistrate without further notice on 10.03.2022.
Ordered accordingly.
Sd/-
JUDGE
Srt
