G. Govindan vs State
2023 Latest Caselaw 5597 Mad

Citation : 2023 Latest Caselaw 5597 Mad
Judgement Date : 7 June, 2023

Madras High Court

G. Govindan vs State on 7 June, 2023

Crl.RC.SR.No.10624 of 2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 07.06.2023

THE HONOURABLE MR. JUSTICE V. SIVAGNANAM

Crl.R.C.SR.No.10624 of 2023
(Application for Re-hearing Criminal Appeal)

G. Govindan .. Applicant
Vs.
State, represented by
Inspector of Police,
All Women Police Station,
Pennagaram,
Dharmapuri District
Crime No.10/2021 ..
Respondent

PRAYER : Application for Re-hearing Criminal Appeal under section
482/401 Cr.P.C. (Sec.561-A/439 Cr.P.C., 1898) to Re-hear the Criminal
Appeal No.472 of 2022, which was dismissed on 13.02.2023 and set aside the
order of conviction and sentence dated 31.03.2022 recorded u/s.6(1) of
POCSO Act against the applicant herein in Spl.S.C.No.36 of 2021 by the
Special Sessions Judge (Fast Track Mahila Court), Dharmapuri and he may be
acquitted of the charges levelled against him, after re-appreciation of the
prosecution evidences available on record.

For applicant : Mr. N. Manoharan
for D.Kalaiselvi
For Respondent : Mr.A. Gokulakrishnan, APP

ORDER

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This Application is filed by the applicant/accused praying to re-hear the

Criminal Appeal No.472 of 2022, which was dismissed by this Court on

13.02.2023 and set aside the order of conviction and sentence dated

31.03.2022 passed by the Special Sessions Judge (Fast Track Mahila Court),

Dharmapuri in Spl.S.C.No.36 of 2021.

2. The learned counsel for the applicant submitted that the applicant is

an accused in Spl.S.C.No.36 of 2021. He was found guilty for the offence

under section 6(1) of POCSO Act by the Special Sessions Judge (Fast Track

Mahila Court) Dharmapuri and for that, he was convicted and sentenced to

undergo Rigorous Imprisonment for a period of 20 years and also to pay a fine

of Rs.25,000/-, in default, to undergo Simple Imprisonment for a further

period of one year. The fine amount was ordered to be paid to the victim girl

after expiry of the appeal period.

3. Aggrieved against the judgment of conviction and sentence imposed

on him, the appellant filed criminal appeal in Crl.A.No.472 of 2022 before

this Court. This Court, after considering the submissions made by the learned

counsel for the parties and perusing the materials available on records,

dismissed the appeal, confirming the conviction and sentence imposed by the

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trial court. Against such dismissal, now the applicant/accused filed this

Criminal Revision for re-hearing the Criminal Appeal. Hence, he seeks to

number the Criminal Revision for re-hearing the Criminal Appeal.

4. The learned counsel for the applicant/accused submitted that re-

hearing of criminal appeal is maintainable in view of a Full Bench Judgment

of Allahabad High Court in the case of Mahesh Vs. State of Uttar Pradesh,

reported in 1971 SCC Online All 394 and seeks to restore the Crl.A.No.472

of 2022 which was dismissed by this Court and to re-hear the same.

5. The learned Additional Public Prosecutor submitted that in view of

the express provision of section 362 Cr.P.C., this application filed for re-

hearing the appeal is indirectly seeking reviewing the judgment rendered in

Criminal Appeal and hence the same is not maintainable. Further, the

judgment relied on by the learned counsel for the applicant is prior to the

amendment of Cr.P.C. Therefore, the application seeking for re-hearing the

Criminal Appeal is not maintainable.

6. Considered the submissions made on both sides and perused the

entire materials available on record.

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7. On perusal of records, the fact reveals that the applicant is an

accused in Spl.S.C.No.36 of 2021. He filed C.A.No.472 of 2022 challenging

the judgment passed in Spl.S.C.No.36 of 2021, dated 31.3.2022 by Special

Sessions Judge (Fast Track Mahila Court) Dharmapuri, convicting and

sentencing him under section 6(1) of POCSO Act. This Court, after hearing

the learned counsel for the parties, dismissed the same on merits on

13.02.2023. Aggrieved by the same, the applicant has filed the application for

re-hearing the criminal appeal in Crl.A.No.472 of 2022 by relying upon the

judgment of Allahabad High Court in the case of Mahesh Vs. State of Uttar

Pradesh, reported in 1971 SCC Online All 394.

8. This Court is of the view that re-hearing the criminal appeal after

disposing the same on merits is impliedly reviewing the criminal judgment,

which is expressly barred by the provisions of the Criminal Procedure Code

under section 362, which runs as follows;

'362. Court not to alter 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'

9. From the above, it is clear that section 362 Cr.P.C., prohibits the

court from altering or revising any judgment or final order disposing of a case

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after it has been signed except for the purpose of correction of clerical or

arithmetical error.

10. The prohibition contained in Section 362 Cr.P.C. is absolute. Thus,

the code of criminal procedure does not authorise the High Court to review its

judgment or order passed either in exercise of its appellate, revisional or

original jurisdiction. Further, the Supreme Court has also settled this principle

in the case of State of Kerala Vs. Manikantan Nair reported in AIR 2001 SC

2145.

11. In view of the above, this application for re-hearing the