Full Text
HIGH COURT OF DELHI
Date of Decision: 18th July, 2023
MAHESH MISHRA ..... Appellant
Through: Appearance not given.
Through: Mr. Tarang Srivastava, APP for State.
HINDVEER SINGH ..... Appellant
Through: Appearance not given.
Through: Mr. Tarang Srivastava, APP for State.
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
JUDGMENT
1. The two appellants i.e. Shri Mahesh Mishra and Shri Hindveer Singh vide their aforementioned applications filed under Section 482 Cr.P.C have sought recalling of the judgment dated 26.06.2023, in so far as it affirms the sentence imposed by the learned Trial Court without affording an opportunity of hearing to the appellants on the issue of sentence. Digitally
2. It is submitted on behalf of the appellants in their respective application that vide judgment dated 14.03.2019 and Order on Sentence dated 20.03.2019 learned ASJ, FTC/E-Court, Shahdara District, Karkardooma Courts, Delhi had convicted and sentenced the accused Mahesh Mishra and Hindveer Singh. The arguments were heard on behalf of all the parties and the Court reserved the appeals for judgment on 19.05.2023. The appeals were dismissed vide Order dated 26.06.2023. It is submitted that no opportunity had been given to the appellant to address the arguments and tender material on the point of sentence which is evident from the bare perusal of the judgment, wherein all the submissions on merit have been detailed in the judgment but there is not a single submission on the aspect of sentence that has been mentioned. It is further explained that the arguments on the quantum of sentence were last heard by the Trial Court on 20.03.2019. Much water has flown under the bridge since then. The sentence of the applicants was suspended during the pendency of the appeals and they both have since then being reinstated by the U.P. Police and are holding a position of responsibility with excellent track record which is borne by their respective Annual Confidential Reports (ACRs) for the last four years.
3. It is asserted that there is a distinction between review of judgment on merits (also called „substantive review‟) and Review of the judgment on procedural grounds (also called „procedural review‟). The present application only seeks the indulgence of the Court to be afforded an opportunity to address the arguments on sentence.
4. A prayer is, therefore, made to recall the portion of judgment dated 26.06.2023 more specifically paragraph No.12 (a) in so far as it upholds the Digitally sentence awarded by the learned Trial Court without affording an opportunity to the appellants to address arguments on this aspect.
5. Submissions heard.
6. The record reveals that the appeals had been filed by the two applicants against their conviction under Section 304/34 IPC in which they have been sentenced to undergo Rigorous Imprisonment for ten years and a fine of Rs.20,000/-, in default of payment of fine to further undergo Simple Imprisonment for three months; under Section 220 IPC to undergo Rigorous Imprisonment for five years and a fine of Rs.5,000/-, in default of payment of fine to further undergo Simple Imprisonment for three months; under Section 365/34 IPC to undergo Rigorous Imprisonment for three years and a fine of Rs.5,000/-, in default of payment of fine to further undergo Simple Imprisonment for three months; under Section 167 IPC to undergo Rigorous Imprisonment for three years and a fine of Rs.5,000/-, in default of payment of fine to further undergo Simple Imprisonment for three months.
7. Criminal Appeals had been preferred by both the appellants which were against their conviction and sentence. The arguments were duly addressed on their respective appeals against conviction and sentence and thereafter vide impugned judgment dated 26.06.2023 the appeals were dismissed and the conviction and sentence was upheld.
8. It has been claimed by the appellants that they should have been given an opportunity for addressing the arguments on sentence. However, as per their own submissions, they had submitted their arguments on merits as well as on order on sentence. Once a detailed judgment after considering all the aspects has been made and the sentence awarded by learned ASJ has been Digitally upheld, it does not lie with appellants to assert that they had not been given any opportunity to address arguments on the aspect of sentencing.
9. The present application is an endeavour to seek review of the judgment dated 26.06.2023 for which there is no provision under Code of Criminal Procedure. If aggrieved by the impugned judgment dated 26.06.2023, they are at liberty to seek appropriate remedy as permissible under law.
10. The applications are without merit and are hereby dismissed. CRL.M.A.18572/2023 (For Modification of Judgment dated 26.06.2023) IN CRL.A.622/2019 by applicant Mahesh Mishra CRL.M.A.18570/2023 (For Modification of Judgment dated 26.06.2023 IN CRL.A.624/2019 by applicant Hindveer Singh
11. The two appellants in their aforementioned applications under Section 482 Cr.P.C had sought modification of the judgment dated 26.06.2023.
12. It is submitted by the appellants in their respective applications that they have been convicted under Section 304/34 IPC and sentenced with Rigorous Imprisonment for ten years and fine of Rs.20,000/-, in default of payment of fine, to further undergo Simple Imprisonment for three months, aside from other offences. It is stated that the sequential events and evidence on record suggest that the deceased was subjected to custodial torture and injuries were caused with the “knowledge” that it was likely to cause death of the deceased but without “any intention” to cause the death. Therefore, the act of causing bodily injury with the knowledge that it is likely to cause death, would make the accused guilty of offence punishable under Section 304 IPC Part II which is punishable with a sentence of RI for 10 years. Digitally
13. However, despite distinctly holding that the death has been caused by the act of the appellants with the requisite “knowledge”, and the conviction has been made accordingly, but inadvertently it is mentioned that conviction is under Section 304 Part I IPC instead of Section 304 Part II of IPC. A prayer is made that the inadvertence in mentioning Section 304 Part I instead of Part II may be rectified and the judgment dated 26.06.2023 be accordingly modified.
14. Submissions heard.
15. In the impugned judgment dated 26.06.2023 it was held that the injuries were inflicted with the “knowledge” that they are likely to cause death and consequently the applicants were held guilty of the offence punishable under Section 304 IPC and were sentenced to undergo RI for ten years with fine of Rs.20,000/-, in default to further undergo SI for three months. The sentence as accorded to the applicants is prescribed under Section 304 Part II IPC.
16. However, while upholding the conviction and the sentence in the concluding paragraph of the judgment dated 26.06.2023 it has been inadvertently indicated that the conviction is under Section 304 Part I IPC, which the appellants are seeking to be corrected to Section 304 (II) IPC. The short question which arises before this court is whether it is a “clerical mistake”, which can be rectified under Section 362 Cr.P.C.
17. Section 362 of the Criminal Procedure Code reads as under:- “Section 362 Court not to alter judgement. 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 Digitally order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.”
18. While there is an absolute mandate that once the judgment has been signed disposing of the case, no review shall be entertained to alter it, an exception is provided to correct a “clerical” or an “arithmetical” error.
19. What amounts to a “clerical” or an “arithmetical” error was explained by the Supreme Court in the case of Master Construction Co. (P) Ltd. v. State of Orissa (1966) 3 SCR 99 wherein it was observed that a clerical error is an error occasioned by an accidental slip or omission of the court. It represents that which the court never intended to say. It is an error apparent on the face of record and does not depend upon its discovery on argumentation or disputation. An arithmetical error is a mistake on calculation and clerical mistake in writing or typing. The Court also held that the slip or omission may be attributed to the judge himself. He may say something or omit to say something which he did not intend to say or omit. This is described as a slip or omission in the judgment itself.
20. Similar observations were made in Smt. Sooraj Devi v. Pyare Lal and Another (1981) 1 SCC 500; Bhala Ram v. State of Rajasthan 2006 (5) WLC (Raj.) 37 and Kuldeep Singh v. Bhupinder Kaur and Ors. 2015 SCC OnLine P&H 10339, while placing reliance upon the Master Construction (P) Ltd. (supra).
21. In the entire impugned judgment, learned ASJ in his judgment and sentence dated 14.03.2019 has observed that the injuries were inflicted with the knowledge that they are likely to cause death and hence convicted the accused under Section 304 IPC and the sentenced them accordingly. It was not indicated whether the conviction was under 304 Part I IPC or 304 Part II Digitally IPC but from the discussion, it is evident that it was a case of 304 Part II IPC.
22. Likewise, in the impugned judgment of 26.06.2023, this Court concurred with the findings of the learned ASJ that the injuries were inflicted with the requisite knowledge and upheld the conviction under Section 304 IPC. The entire discussion in both the judgments makes it apparent on its face that the conviction was under Section 304 Part II IPC which needs no argumentation or disputation. Therefore, mentioning of Section 304 Part I IPC instead of 304 Part II IPC in the concluding paragraph No.12 (c) of judgment dated 26.06.2023 by this Court is nothing but an inadvertent error as it is apparent from the entire discussion that the conviction has been made under Section 304 Part II IPC.
23. Accordingly, the conviction upheld under Section 304 may be read as under Section 304 Part II IPC.
24. The application is accordingly disposed of. CRL.A.622/2019 & CRL.A.624/2019
25. The pending applications also stands disposed of accordingly.
(SURESH KUMAR KAIT) JUDGE (NEENA BANSAL KRISHNA)
JUDGE JULY 18, 2023 Digitally