CRIMINAL MISC. NO.32122 OF 2012 & CRIMINAL REVISION NO.2752 OF 2011 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: OCTOBER 31, 2012 Balwinder Singh Sodhi .....Petitioner VERSUS State of Punjab ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. M. S. Khaira, Sr.Advocate with Mr. Randeep S. Khaira, Advocate, Amicus Curiae. ***** RANJIT SINGH, J. Petitioner, Balwinder Singh, has filed this criminal revision petition to impugn his conviction for an offence under Section 420 IPC, for which he was sentenced to suffer RI for two years with fine of `2,000/-. In default of payment of fine, the petitioner was to undergo 15 days imprisonment in addition to the sentence of imprisonment as imposed. When this revision petition came up for hearing on 8.11.2011, the counsel Mr.P.P.S.Duggall, appearing for the petitioner, made submissions on merits. Thereafter, he prayed for time to enable the petitioner to make efforts to negotiate with the CRIMINAL MISC. NO.32122 OF 2012 & CRIMINAL REVISION NO.2752 OF 2011 :{ 2 }: complainant for repaying the money allegedly paid to him for getting a job. On the request so made, the case was adjourned to 1.12.2011. On this date, the counsel prayed for some more time, pleading that efforts were going on to negotiate with the complainant. The revision was accordingly adjourned to 9.12.2011. On this date, the counsel prayed before the court that the petitioner was ready to deposit a sum of `50,000/-, which was allegedly paid to the petitioner and prayed for time to do so. The petitioner was granted time to deposit the amount and it was observed that if he did so, his case may be considered by showing some leniency. The case was accordingly adjourned to 16.12.2011. On this date, the prayer for further adjournment was made but without depositing the sum of `50,000/-. In fact, the undertaking given before the Court had not been complied with by the petitioner. The Court accordingly did not consider it appropriate to grant further time or opportunity to the petitioner to deposit this amount and passed an order, dismissing the revision petition. The detailed order passed by this Court on 16.12.2011 is as under:- “This case came up for hearing before this Court on 8.11.2011. Counsel for the petitioner made submissions on merits and thereafter prayed for time to make an effort to negotiate with the complainant by repaying the money allegedly paid to him on pretext of getting a job. On request of the counsel, the case was adjourned to 1.12.2011. The order in this regard reads as under:- CRIMINAL MISC. NO.32122 OF 2012 & CRIMINAL REVISION NO.2752 OF 2011 :{ 3 }: “The counsel has made submissions on merits and having done so, he prays for time to make an effort to negotiate with the complainant by repaying the money allegedly paid for getting the job. On his request, adjourned to 1.12.2011.” On 1.12.2011, counsel again made a request on the ground that the efforts are going on to negotiate with the complainant. The case was adjourned to 9.12.2011, on which date it was stated that the petitioner was not successful in compromising the case. The counsel at that stage prayed for time to deposit a sum of `50,000/- and pleaded for showing some leniency on that count. The case was adjourned for today by noticing the same as can be seen from the following order:- “Counsel says that he is ready to deposit a sum of `50,000/-. Let him deposit the sum. If he does so, the case of the petitioner for leniency in sentence can be considered.” The amount has not been deposited. Today, counsel has produced a person before me to say that he is elder brother of the accused and negotiation is almost complete. I am not prepared to accept the plea for adjournment any further. The petitioner apparently is gaining time for some undisclosed purpose. Once the negotiation had earlier failed, the start of fresh negotiation CRIMINAL MISC. NO.32122 OF 2012 & CRIMINAL REVISION NO.2752 OF 2011 :{ 4 }: seems a ploy. Counsel had only taken time to deposit a sum of `50,000/- which is not complied. Case was not adjourned for the purpose of negotiation. No case for showing any further consideration is made out. The revision is accordingly dismissed.” Subsequently, the petitioner appeared in person before the Court and filed a Criminal Misc. Petition in the instant criminal revision petition to point out that he was never told by the counsel about the requirement of depositing the sum of `50,000/- or that he was seeking time on the ground that matter was being negotiated with the complainant. The petitioner learnt about this entire proceedings before this Court on his release on parole on 7.5.2012 and when he contacted his counsel, Mr.P.P.S.Duggall to learn that his revision petition had been dismissed. The petitioner then obtain the copy of the orders, reproduced above and has filed this petition to urge that he was never apprised about the requirement. He accordingly has approached this Court, stating that he was not in any correspondence or otherwise intimated by the counsel about the requirement projected in the order or that he was required to deposit the amount etc. The petitioner accordingly prayed for recall and review of the order in the facts and circumstances and the background as mentioned in the application. Since the petitioner had appeared in person and was not in a position to make submissions on the maintainability of the revision petition, this Court thought it appropriate to request learned CRIMINAL MISC. NO.32122 OF 2012 & CRIMINAL REVISION NO.2752 OF 2011 :{ 5 }: senior counsel, Shri M.S.Khaira, who was present in the Court, to assist the Court and the petitioner as Amicus-curiae. Learned senior counsel was gracious enough to appear and make submissions on behalf of the petitioner. The learned senior counsel has placed before this Court, a decision of the Hon'ble Supreme Court reported as State of U.P. and others Vs. Surendra Kumar, (2005) 9 Supreme Court Cases 161. The Court in this case has gone into the scope of High Court jurisdiction to modify the order once passed while exercising power and jurisdiction under Section 482 Cr.P.C. It is held that this Court can not exercise jurisdiction under Section 482 Cr.P.C to recall or review the order, but still this Court would have such powers and can pass an order to undo injustice in exercise of writ jurisdiction where allegation of manifest injustice to the parties is seen or noticed. The Court accordingly passed a detailed order on 6.7.2012 and issued notice of motion while suspending the sentence imposed on the petitioner and directing his release on bail. The order reads as under:- “The revision filed by the petitioner was dismissed. He has now filed this application making an averment that the counsel, who had appeared for him earlier, never informed him about the requirement/condition of paying the amount of `50,000/-, which he is ready to deposit. The petitioner appeared in person to make submission in the application while he was on parole. Learned Senior CRIMINAL MISC. NO.32122 OF 2012 & CRIMINAL REVISION NO.2752 OF 2011 :{ 6 }: counsel Mr.M.S.Khaira was requested to assist the court as Amicus Curiae as, prima-facie, it was found that this court may not be in a competent position to review the earlier order passed on merits. Learned senior counsel has made reference to State of U.P. and others Versus Surendra Kumar, (2005) 9 Supreme Court Cases 161, Hon'ble Supreme Court has gone into the scope of High Court jurisdiction in this case. Power to modify the order once passed while exercising jurisdiction under Section 482 Cr.P.C. was held beyond jurisdiction. It is, however, observed that such an order could be passed in exercise of its writ jurisdiction where allegation of manifest injustice to party is seen or noticed. In this case manifest injustice appears to have been caused to the petitioner. He is ready to discharge the liability standing for `50,000/- but was never apprised that he may get out of rigors of punishment by doing so. To me, it would appear to be a fit case to invoke extra ordinary jurisdiction of the court under Article 226 of the Constitution to reach this injustice, which otherwise will perpetuate. Notice of motion for 9.8.2012. On the asking of Court, Mr.B.B.S.Teji, Addl.A.G.Punjab accepts notice on behalf of the State and prays for time to have instructions. CRIMINAL MISC. NO.32122 OF 2012 & CRIMINAL REVISION NO.2752 OF 2011 :{ 7 }: Till next date of hearing, sentence imposed on the petitioner shall remain suspended. The petitioner shall be released on bail to the satisfaction of CJM, Faridkot. The Registry shall send the intimation about this order to the petitioner through the Superintendent, District Jail, Faridkot. This court would wish to acknowledge the valuable assistance rendered by the learned senior counsel.” The petitioner subsequently has deposited the amount of `50,000/- with the Chief Judicial Magistrate and has placed the evidence in this regard on record of the file of this case. Obviously, the plea by the learned senior counsel is that the petitioner was not apprised about the requirement of depositing this amount. The revision once dismissed by this Court can not be reconsidered or reopened to revise the said order, especially by invoking jurisdiction under Section 482 Cr.P.C. This is what is even held in Surendra Kumar's case (supra). In this regard, the Hon'ble Supreme Court has observed as under:- “We are of the view that the impugned order passed by the High Court was wholly unwarranted. The respondent had moved the High Court only for setting aside that part of the order of the ACJM whereby he had required the respondent to furnish a personal bond in the sum of Rs.1,00,000. That prayer was allowed. Nothing further remained to be done. In the garb of an application for CRIMINAL MISC. NO.32122 OF 2012 & CRIMINAL REVISION NO.2752 OF 2011 :{ 8 }: modification of that order, the respondent could not file an application which was in effect a review application praying for other reliefs. Yet the High Court passed an order directing the appellants not to search and seize the goods lying at the railway station or in the custody of the City Booking Agency of the applicant prior to the delivery to the consignees. It has further directed that the appellants shall not interfere in the functioning of the City Booking Agency. These are matters which were entirely beyond the scope of the application under Section 482 Cr.P.C. and if, we may say so, beyond the jurisdiction of the High Court exercising jurisdiction under Section 482 Cr.P.C. It does not arise out of any order passed by a court, nor was there any allegation of abuse of the process of the court, nor was it a case of manifest injustice caused to a party. A direction like the one which the High Court has given in its impugned order could be given by the High Court in exercise of its writ jurisdiction in an appropriate case and not under Section 482 Cr.P.C. In any event, since the application under Section 482 stood disposed of, the review of that order by the High Court in the garb of modifying that order is wholly unwarranted. We, therefore, set aside the impugned order of the High Court dated 20.9.2002.” As is observed above, where the Court finds that a case CRIMINAL MISC. NO.32122 OF 2012 & CRIMINAL REVISION NO.2752 OF 2011 :{ 9 }: of manifest injustice appears to have been caused to the person concerned, then such a prayer for invoking the jurisdiction of this Court under Article 226 of the Constitution of India to reach this injustice would always be available to lessen the rigors of law, which had been imposed on the peti tioner. Such a jurisdiction may have to be invoked to avoid injustice being perpetuated. Accordingly, the petitioner, who has now shown repentance and even has returned the amount, which he is alleged to have taken for arranging a job for the complainant, may to an extent has redeemed himself. This may not be enough to excuse him of the criminal liability but this repentance may deserve some consideration so far as the punishment imposed on the petitioner is concerned. The petitioner has been sentenced to suffer rigorous imprisonment for two years, out of which he has undergone substantial portion of the sentence so imposed. If the counsel representing the petitioner at the initial and earlier stage had apprised the petitioner about the requirement, the petitioner may have been able to get some relief so far as the sentence imposed is concerned. Thus, the petitioner has suffered to an extent because of the circumstances, which were beyond his control and due to the circumstances in which he is placed and not on account of any fault on his part. The petitioner, in my view, can not be made to suffer in this manner. He has now shown his bonafides by depositing this amount. Otherwise also, the revision filed by the petitioner was dismissed because he failed to comply with the undertaking to CRIMINAL MISC. NO.32122 OF 2012 & CRIMINAL REVISION NO.2752 OF 2011 :{ 10 }: deposit sum of `50,000/-, which his counsel had agreed to deposit. It has now come to notice that the counsel has not apprised the petitioner about this requirement. Thus, the revision was not dismissed on merits, but the revision was declined only because of failure on his part to fulfill the undertaking given before this court. It is, thus, made out that the revision was not dismissed on merits and only on the basis of the reasons as noticed above. In somewhat similar type of situation, the Hon'ble Supreme Court had required this court to pass an order to correct the mistake, if any, which may have occurred by observing that a court of law has always a jurisdiction to correct its own mistake. This may not be a mistake on the part of the court, but indeed is a mistake for which the petitioner cannot be blamed in any manner. He has now deposited the amount, which earlier his counsel had undertaken on his behalf to so deposit. The case for showing some leniency, therefore, certainly is made out. However, no case for interference on merit is made out. The sentence imposed on the petitioner is reduced to the period already undergone. The sum of `50,000/- deposited by the petitioner is to be paid to the complainant, who is alleged to have paid this amount to the petitioner. The complainant would be at liberty to move an application before the trial court to seek payment of this amount which had been deposited by the petitioner. The fine imposed on the petitioner shall also be deposited in addition to the sum of `50,000/-, which the petitioner has now deposited. CRIMINAL MISC. NO.32122 OF 2012 & CRIMINAL REVISION NO.2752 OF 2011 :{ 11 }: The revision petition is disposed of in the above terms. October 31, 2012 (RANJIT SINGH ) khurmi JUDGE