Application Under Section 482 Of ... vs For
2023 Latest Caselaw 8153 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                        CRLMC No. 2718 of 2023

        Application under Section 482 of Criminal Procedure Code,
        1973.
                                ---------------
AFR     Damodar Das                         ......     Petitioner

                                  -Versus-

        State of Odisha (Vigilance)       .......      Opp.Party


        Advocate(s) appeared in this case:-
        _________________________________________________________
              For Petitioner      :M/s. S. Mohanty, G. Das,
                                   S. Jena, N. Mohanty, G. Patra &
                                   S. Satapathy, Advocates

              For Opp. Party      : Mr. Niranjan Maharana
                                    Standing Counsel (For Vigilance)
        _________________________________________________________
        CORAM:
             JUSTICE SASHIKANTA MISHRA

                              JUDGMENT

28th July, 2023

SASHIKANTA MISHRA, J. The petitioner faced trial in G.R.

(Vigilance) Case No. 14 of 2009 in the Court of learned

Additional Sessions Judge-cum-Special Judge (Vigilance),

Bhawanipatna for the alleged commission of offence under

Section 13(2) read with Section 13(1)(c) of the PC Act read

with Section 409/477-A of IPC. Another person, namely,

Karunakar Panda also faced trial as co-accused. On

17.05.2023, the trial Court passed judgment convicting

both of them of the aforementioned offences. On the said

date however, the present accused being represented

through his advocate under Section 317 of Cr.P.C. filed a

petition for adjournment on the ground of his personal

illness. The court below, after passing the order of

conviction took up hearing on the question of sentence, co-

accused-Karunakar Panda was present and was heard. The

advocate of the present petitioner was also present. After

such hearing both the accused persons were sentenced to

rigorous imprisonment for three and half years along with

fine of Rs.3 lakhs, in default, to undergo further rigorous

imprisonment for six months. By a later order, the court

below held that the convict, Karunakar Panda had not paid

the fine amount and accordingly committed him to jail

custody to serve the sentence awarded against him. As

regards the convict-Damodar Das (present petitioner), he

being absent and the fine amount not being paid on his

behalf, the court below issued non-bailable warrant of

arrest against him and also issued notice to the sureties

fixing the case to 12.06.2023 for production of the convict.

In the present application, filed under Section 482 of

Cr.P.C. the aforementioned order dated 17.05.2023 is

under challenge.

2. Heard Mr. Samvit Mohanty, learned counsel for the

petitioner and Mr. Niranjan Maharana, learned Standing

Counsel for the Vigilance Department.

3. Mr. Mohanty has forcefully argued that the procedure

followed by the court below is entirely contrary to the

statutory provisions inasmuch as the sentence could not

have been pronounced without hearing the convict

Damodar Das. The court below ought to have deferred the

hearing on the question of sentence in respect of the

present petitioner instead of issuing non-bailable warrant

of arrest after hearing his advocate. Mr. Mohanty has

referred to the provision under Section 248 (2) of Cr.P.C. to

submit that sentence could not have been passed without

hearing the accused and therefore, such sentence is liable

to be interfered with.

4. Mr. Niranjan Maharana, on the other hand, argues

that the petitioner's counsel was very much present at the

time of hearing on the sentence and therefore, no illegality

was committed. Since the fine amount was not paid, the

court below was justified in issuing the non-bailable

warrant of arrest.

5. It is stated at the bar that challenging the order of

conviction and the sentence the petitioner has already

approached this Court by filing appeal being CRLA No. 651

of 2023. Therefore, this Court would not like to pass any

comment as regards the legality of either the order of

conviction or the sentence. The same is to be decided by

the appellate court which is already in seisin over the

matter. This Court however, observes that a petition for

adjournment having been filed on behalf of the petitioner

on the ground of his personal illness supported by medical

certificate, the court below could have deferred the hearing

on the question of sentence to a later date so as to enable

the convict to appear in person or taken coercive steps to

compel his attendance, if it felt so proper. Nevertheless, the

sentence having been pronounced, the court below issued

non-bailable warrant of arrest against the petitioner. Be it

noted that the petitioner was convicted and sentenced to

undergo rigorous imprisonment for three and half years

and to pay fine of Rs.3 lakhs. To such extent therefore, the

provision under Section 389(3) has no application. The only

remedy available to the petitioner is to approach the

appellate court seeking suspension of the sentence as

provided under Section 389 (1) of Cr.P.C. In all fairness,

the court below could have considered the petition for

adjournment on its own merit either before pronouncing

the judgment or at any rate, before undertaking the

hearing on the question of sentence. Deferring the hearing

of the petition for adjournment to after pronouncement of

sentence appears to be irregular. The effect of such course

of action was, non-hearing the convict petitioner on the

question of sentence. What effect such procedure would

have on the sentence imposed is of course, a matter to be

decided by the appellate Court.

6. Under such circumstances, the impugned order

cannot be interfered with, since a sentence, rightly or

wrongly, has already been passed. It is open to the

petitioner to approach the appellate court seeking

suspension of the sentence as per Section 389 (1) of Cr.P.C.

but no case is made out for quashing the NBW issued

against him.

7. For the foregoing reasons therefore, this Court is of

the considered view that in the peculiar facts and

circumstances it would be proper for the petitioner to file

appropriate application before the appellate court and for

such purpose two weeks time is allowed. The NBW issued

against the petitioner shall be kept in abeyance for two

weeks so as to enable him to obtain appropriate order from

the appellate Court.

8. With these observations, the CRLMC is disposed of.

..................................

Sashikanta Mishra, Judge B.C. Tudu

Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 01-Aug-2023 20:23:33