Legal Provisions of Section 362 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Court Not to Alter Judgment:
ADVERTISEMENTS:
Once the Judge or Magistrate has signed its judgment or final order disposing of the case, it becomes final so far the Court is concerned. The Court then becomes functus officio and, therefore, has no power to alter or review the same except to correct a clerical or arithmetical error.
Such an error may have occasioned due to accidental slip or omission which the Court never intended and it is an error apparent on the face of the record which may be rejected. An arithmetical error is a mistake of calculation and a clerical error is mistake in writing or typing.
Thus recording of conviction against the accused who was dead because of non-supply of information regarding the death of the accused by the parties was held to be a clerical error which would be corrected by the Court.
But an error as to making sentence of imprisonment to run concurrently instead of consecutively could not be allowed to be corrected as a mere clerical error because such a change in sentence requires review of the judgment.
ADVERTISEMENTS:
The word ‘judgment’ used in this section connotes the opinion of the Court (Judge or Magistrate) reached after due consideration of the available evidence and the arguments. Where an order of discharge was passed summarily without considering the entire evidence it was held not to be a ‘judgment’ within the meaning of this section.
‘Judgment’ for the purpose of this section must contain a decision as to a ‘conviction’ or an ‘acquittal’. Therefore, a decision on a writ petition under Article 226 or 32 of the Constitution is not a ‘judgment’ for it neither ends into a conviction nor an acquittal.
Likewise, the order of the High Court dismissing appeal, revision or any other criminal proceeding for default or non-appearance of parties does not constitute a ‘judgment’ or ‘final order’ and, therefore, Section 362 has application in respect to them.
Commenting on the scope of Section 362 of Cr. P. C. the Supreme Court in State Rep. by DSP, CID, Chennai, v. Rajendran, held that the section prohibits re-opening of a final order/judgment except in the cases of clerical or arithmetical errors.
ADVERTISEMENTS:
In view of this prohibition in the form of Section 360 in the Code itself, exercise of inherent power by the High Court under Section 482 of the Code to re-open or alter an order or judgment is not warranted.
The bar imposed on alteration of judgment by Section 362 cannot be removed by the use of inherent power under Section 482 of the Code. Thus where in a murder case, three persons were convicted out of whom two were acquitted in appeal by the High Court and the conviction of the third one under Section 304 Part I of I.P.C. was subsequently altered to that under Section 324 in a petition under Section 482, Cr.P.C. on the plea that the injury caused was not of a serious nature.
The Supreme Court held that the High Court had contravened the provision of Section 362 as it had no jurisdiction to alter the earlier judgment regarding the sentence, under Section 304, Part I by making use of its inherent power under Section 482 of the Code.
The Supreme Court, in the case of Naresh v. State of Uttar Pradesh, held that an alteration of conviction under Section 302, I.P.C. to one under Section 304, I.P.C. by the High Court is not justified under Section 362 of the Code.
In Chhunni v. State of Uttar Pradesh, the appellant was convicted under Section 304, Part II, I.P.C. On appeal the conviction was altered from Section 304, Part II to simple hurt under Section 323, I.P.C. No plea was raised before the High Court for the benefit of probation under the Probation of Offenders Act, 1958 or under Section 360, Cr. P.C.
Such plea was subsequently made by applying for modification of judgment. The High Court rejected the plea under Section 362, Cr. P.C. On appeal the Supreme Court upheld the judgment of the High Court but considering the peculiar circumstances, directed the High Court to consider the application.
The Full Bench of Calcutta High Court in its decision in Harjeet Singh v. State of West Bengal, has categorically held that in view of Section 362, Cr. P.C., there is a clear bar for any Court, which includes the High Court, to either review or recall an order or judgment passed even if it was found subsequently that it had offended the principles of natural justice.
The Court further observed that the Court could not review or recall its final order or judgment, even in cases where the parties might come up before it saying that they had not been heard or they have left out something, which if placed before the Court, might have resulted in a different decision and that the decision arrived in their absence was an impaired finding. According to the Court, once the Court lifts its pen after signature, it could not put it once again; except of the situation like for the purpose of rectifying a clerical or arithmetical error.
In Mahesh Manchandar Garge v. State of Andhra Pradesh, application was made of enlargement of time for payment of fine amount to enable appellants to prefer an appeal. The appellants had stated that because of mistake on the part of their Advocate in bringing certain facts to the notice of the Court, necessary clarification relating to payment of fine had not been specified in the judgment.
Thus appropriate orders were necessary by rectifying the said mistake which had crept in the judgment. Disallowing the appeal, the High Court held that rectification would amount to alteration of sentence which amounts to judicial determination, which is not permissible under Section 362 of the Code.