Vasudeva Menon @ Uthaman vs State Of Kerala
2022 Latest Caselaw 4716 Ker

Crl.M.C.No.3476/2021                     1

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
             THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
    TUESDAY, THE 26TH DAY OF APRIL 2022 / 6TH VAISAKHA, 1944
                        CRL.MC NO. 3476 OF 2021
AGAINST THE ORDER/JUDGMENT IN CC 1177/1997 OF JUDICIAL MAGISTRATE OF
                        FIRST CLASS -I, CHERTHALA
   CRA 78/2004 OF ADDITIONAL DISTRICT COURT & IST ADDITIONAL MOTOR
                   ACCIDENT CLAIMS TRIBUNAL ,ALAPPUZHA.
PETITIONER/ACCUSED:

             VASUDEVA MENON @ UTHAMAN,
             AGED 65 YEARS,
             PATHIYAZHATH HOUSE, WARD NO.7,
             VAYALAR PANCHAYAT, CHERTHALA.
             BY ADVS.
             A.T.ANILKUMAR
             V.SHYLAJA


RESPONDENTS/DE FACTO COMPLAINANT:

     1       STATE OF KERALA,
             REPRESENTED BY PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNAKULAM PIN-682 031.
     2       CIRCLE INSPECTOR OF POLICE,
             CHERTHALA, PIN-688 524.
     3       AISHA,
             W/O LATE SHAJI, AGED 58 YEARS,
             SHINE NIVAS, VAYALAR, CHERTHALA, PIN-688 524.
             BY ADV FATHIMA RAZAK

             SRI.SUDHEER GOPALAKRISHANAN - PUBLIC PROSECUTOR


      THIS   CRIMINAL   MISC.   CASE   HAVING   COME   UP   FOR   ADMISSION   ON
06.04.2022, THE COURT ON 26.04.2022 PASSED THE FOLLOWING:
 Crl.M.C.No.3476/2021                        2




                                        ORDER

The petitioner is the accused in C.C.No.1177 of 1997 on the

file of the Judicial First Class Magistrate Court-I, Cherthala. The

aforesaid case arises from Crime No.199 of 1997 of Cherthala

Police Station which was registered against him for the offences

punishable under Sections 279 and 304 A of Indian Penal Code and

also under Section 134 (a) read with Section 187 of Motor Vehicles

Act.

2. The prosecution case is that, on 01.06.1997 at 3.45 pm,

while the petitioner was driving his car through Vayalar-

Nagamkulangara Public road, due to rash and negligent driving, the

vehicle went off the road and hit the husband and son of the de

facto complainant, resulting in their death. The petitioner faced

trial and as per Anenxure-A judgment passed by the Judicial First

Class Court-I, Cherthala, he was found guilty and was sentenced to

undergo simple imprisonment for six months for the offence under

Section 279 IPC, simple imprisonment for two years under Section

304A IPC, to pay a fine of Rs.500/- with a default sentence to

undergo simple imprisonment for 15 days for the offence under

Section 134(a) read with Section 187 of MV Act and to pay a fine of

Rs.500/- with a default sentence to undergo simple imprisonment

for 15 days for the offence under Section 134(b) of MV Act .

3. Challenging the aforesaid order of conviction and

sentence, Crl.A.No.78 of 2004 was submitted and the same resulted

in Annexure-B judgment passed by the Addl.Sessions Court,

Alappuzha, in which the finding of conviction and sentence was

confirmed. Crl.R.P.No.674 of 2006 was filed by the petitioner

before this Court and it culminated in Annexure-C order, wherein

the conviction was confirmed, but the substantive sentence of

imprisonment was modified as two months under Section 279 IPC

and five months under Section 304(A) IPC. Special Leave Petition

(SLP) No.4607 of 2018 was filed before the Honourable Supreme

Court, which was dismissed as per Annexure-D order.

4. This Crl.M.C. is filed by the petitioner highlighting that,

subsequent to the dismissal of the SLP, the petitioner arrived at a

settlement with the de facto complainant and she had agreed to

settle the dispute with the petitioner. Annexure-F agreement

executed between the parties was relied on and in addition to that

Annexure-G affidavit sworn by the de facto complainant is also

produced.

5. The aforesaid documents indicate a settlement between

the parties, wherein the de facto complainant who is the 3 rd

respondent herein expressed her no objection in setting aside the

sentence imposed upon the petitioner herein. This Crl.M.C. is filed

in such circumstances, praying for quashing the order passed in

Crl.R.P.No.674 of 2006 by this Court, in the light of the aforesaid

settlement.

6. Heard Sri.V.Shylaja, learned counsel appearing for the

petitioner and Sri.Sudheer Gopalakrishnan, learned Public

Prosecutor appearing for the State.

7. The prayer sought for by the petitioner is to quash an

order passed by this Court in revision under Section 401 of Cr.PC.

Section 362 of Cr.P.C. provides that, save as provided in the 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. This Crl.M.C. is filed to quash Annexure-C order passed by

this Court on merits, by invoking the inherent powers of this Court

under Section 482 Cr.P.C. The aforesaid powers cannot be invoked

to defeat a statutory prohibition contained in the Cr.P.C. Therefore,

when Section 362 Cr.P.C. specifically prohibits alteration or review

of the order once passed by this Court, the same cannot be done by

invoking the inherent powers of this Court. The powers under

Section 482 Cr.P.C. is intended to be invoked when there is abuse

of process of court or to do justice to the parties and the same

cannot be invoked to overcome the stipulations contained in the

Code. In Sreedharan v. Bharathan, [2014 (1) KLT 236], this

Court considered the question as to whether composition of an

offence, after the conviction is confirmed in revision by this Court,

be permitted was considered. After elaborately considering various

judicial precedents in this regard, it was observed that, post

revisional composition is not permissible even by invoking Section

482 Cr..P.C., as it will have the effect of setting aside the conviction

and sentence passed by the Court, confirmed or modified in revision

and would invite the interdiction contained in Section 362 Cr.P.C.

8. In the light of the above, I do not find any merit in this

Crl.M.C. as the prayer sought is to set aside an order passed by this

Court under Section 401 Cr.P.C., by which the conviction and

sentence imposed upon the petitioner stands confirmed. Moreover,

the aforesaid order has now became final, by virtue of Annexure-D

order passed by the Honourable Supreme court in SLP filed by the

petitioner. In such circumstances, an order granting the prayer

sought for by the petitioner would go against the statutory

prohibition contained under Section 362 Cr.P.C.

In the result, this Crl. M.C is dismissed.

Sd/-

ZIYAD RAHMAN A.A.

                                                   JUDGE

DG/21.4.22


                       APPENDIX OF CRL.MC 3476/2021

PETITIONER ANNEXURES

Annexure A               TRUE COPY OF THE JUDGMENT IN C.C.
                         NO.1177/978 ON THE FILE OF JUDICIAL FIRST
                         CLASS MAGISTRATE COURT-I CHERTHALA DATED
                         28.01.2004

Annexure B               TRUE COPY OF THE ORDER IN CRL. APPEAL
                         NO.78/2004 ON THE FILE OF ADDITIONAL

SESSIONS JUDGE, ALAPPUZHA DATED 26.11.2005

Annexure C TRUE COPY OF THE ORDER IN THE CRL.RP.NO.674/2006 DATED 6.2.2018

Annexure D TRUE COPY OF THE JUDGMENT OF THE SUPREME COURT IN SPECIAL LEAVE PETITION NO.4607/2018, DATED 3.7.2018

Annexure E TRUE COPY OF THE PHOTOGRAPHS SHOWING THE AGE OLD PARENTS OF THE PETIITONER

Annexure F TRUE COPY OF THE AGREEMENT DATED 05.10.2020

Annexure G TREU COPY OF THE ORIGINAL AFFIDAVIT DATED 21.01.2021