STATE OF MADHYA PRADESHversusMAN SINGH

570                       [2019]
               SUPREME COURT     13 S.C.R. 570
                              REPORTS                       [2019] 13 S.C.R.


A                      STATE OF MADHYA PRADESH
                                         v.
                                  MAN SINGH
                        (Criminal Appeal No. 410 of 2011)
B                             NOVEMBER 04, 2019
             [DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]
             Code of Criminal Procedure, 1973 – s.482 – Power of High
      Court u/s. 482 CrPC to alter the sentence passed by the High Court
      itself – Respondent was prosecuted for committing offences
C
      punishable u/ss. 468, 471 & 419 of IPC – It was alleged that
      respondent forged a certificate and procured appointment to the
      post of Buffalo attendant in the veterinary department – Trial Court
      convicted respondent u/ss. 468, 471 & 419 IPC and sentenced him
      to undergo rigorous imprisonment for one year – On the issue of
D     sentence, the respondent urged the benefit of probation of offenders
      Act, 1958, however, same was declined by the Trial court – Appeal
      was dismissed by the Appellate Court – In criminal revision, High
      Court affirmed the conviction but reduced the substantive sentence
      from one year to the period already undergone – Respondent filed
      the petition u/s. 482 CrPC – High Court extended the benefit of
E
      Probation Act and directed that sentence which accused has already
      undergone, would not affect his career – On appeal, held: There is
      no power to review granted to the Courts under CrPC – As soon as
      the High Court had disposed of the original revision petition, upheld
      the conviction, reduced the sentence to the period already undergone,
F     it became functus officio and, as such, it could not have entertained
      the petition u/s. 482 CrPC for altering the sentence – After sentence
      had been imposed and served and fine paid, there was no question
      of granting probation – Further, there was violation of the provisions
      of s.4 of the Probation Act, which mandates that before passing the
      order of probation, it is essential to obtain report of the probation
G
      officer concerned – Also, High Court had no jurisdiction to pass
      an order that the employee be retained in service, as it is settled that
      grant of probation under the Act does not have bearing so far as
      the service of such employee is concerned – The employee cannot

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                                        570
        STATE OF MADHYA PRADESH v. MAN SINGH                          571


claim a right to continue in service on the ground he was released    A
on probation – Thus, order of the High Court set aside – Probation
of Offenders Act, 1958 – s.4.
      Allowing the appeal, the Court
      HELD: 1. It is well-settled law that the High Court has no
jurisdiction to review its order either under Section 362 or under    B
Section 482 of CrPC. The inherent power under Section 482
CrPC cannot be used by the High Court to reopen or alter an
order disposing of a petition decided on merits. After disposing
of a case on merits, the Court becomes functus officio and Section
362 CrPC expressly bars review and specifically provides that         C
no Court after it has signed its judgment shall alter or review the
same except to correct a clerical or arithmetical error. Recall of
judgment would amount to alteration or review of judgment which
is not permissible under Section 362 CrPC. It cannot be
validated by the High Court invoking its inherent powers.
[Para 5] [574-E-F]                                                    D

       2. There is no doubt that the High Court had no power to
entertain the petition under Section 482 CrPC and alter the
sentence imposed by it. Further, the manner in which the
probation has been granted is not at all legal. The trial court had
given reasons for not giving the benefit of probation. When the       E
High Court was deciding the revision petition against the order
of conviction, it could have, after calling for a report of the
Probation Officer in terms of Section 4 of the Probation of
Offenders Act, 1958 granted probation. Even in such a case, it
had to give reasons why it disagreed with the trial court and the     F
first appellate court on the issue of sentence. The High Court,
in fact, reduced the sentence to the period already undergone
meaning thereby that the conviction was upheld and the sentence
was imposed. After sentence had been imposed and served and
fine paid, there was no question of granting probation. [Para 6]
[574-G; 575-A-B]                                                      G
       3. Another error is that the order has been passed in
violation of the provisions of Section 4 of the Act which mandates
that before releasing any offender on probation of good conduct,
the Court must obtain a report from the Probation Officer and
can then order his release on his entering bonds with or without      H
572           SUPREME COURT REPORTS                     [2019] 13 S.C.R.


A     sureties, to appear and receive sentence when called upon during
      such period, not exceeding three years, or as the Court may
      direct, and in the meantime to keep peace and good behaviour.
      [Para 7] [575-C-D]
            4. In the present case, the accused obtained a job on the
B     basis of forged documents. Even if he was to be given the benefit
      of the Act, then also he could not retain his job because the job
      was obtained on the basis of forged documents. This Court is
      constrained to observe that the High Court passed the order in a
      mechanical and pedantic manner without considering what are
      the legal issues involved. [Para 10] [576-D-E]
C
            State Bank of India & Ors. v. P. Soupramaniane AIR
            2019 SC 2187 – relied on.
            State of Kerala v. M.M. Manikantan Nair (2001) 4 SCC
            752 : [2001] 3 SCR 203 ; State Rep. by D.S.P.,
D           S.B.C.I.D., Chennai v. K.V. Rajendran & Ors. 2009
            CriLJ 355 SC ; Hari Singh Mann v. Harbhajan Singh
            Bajwa & Ors. (2001) 1 SCC 169 : [2000] 4 Suppl.
            SCR 313 ; Sooraj Devi v. Pyare Lal & Anr. AIR 1981
            SC 736 : [1981] 2 SCR 485 ; M.C.D. v. State of Delhi
            & Anr. AIR 2005 SC 2658 : [2005] 3 SCR 1010
E           – referred to.
                            Case Law Reference
      [2001] 3 SCR 203              referred to             Para 5
      [2000] 4 Suppl. SCR 313       referred to             Para 5
F
      [1981] 2 SCR 485              referred to             Para 5
      [2005] 3 SCR 1010             referred to             Para 7
      AIR 2019 SC 2187              relied on               Para 9
            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
G     No. 410 of 2011.
           From the Judgment and Order dated 26.09.2008 of the High Court
      of Madhya Pradesh, Bench at Indore in M. Cr.C. No. 5101 of 2008.


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         STATE OF MADHYA PRADESH v. MAN SINGH                                   573


      Sunil Fernandes, AAG (M.P), Ms. Nupur Kumar, Ms. Priyansha                A
Indra Sharma, Harsh Parashar, Advs. for the Appellant.
      Mrs. Rani Chhabra, Adv. for the Respondent.
      The Judgment of the Court was delivered by
      DEEPAK GUPTA, J.                                                          B
       1. Whether a Judge of the High Court can exercise powers under
Section 482 of the Code of Criminal Procedure, 1973 (for short ‘CrPC’)
to alter the sentence which has been passed by the High Court itself is
the issue involved in this appeal.
       2. The respondent, Man Singh was prosecuted for having                   C
committed offences punishable under Sections 468, 471 and 419 of Indian
Penal Code, 1860 (for short ‘IPC’). The allegation against him was that
he had used a transfer certificate of one Kalu Singh and forged the
certificate to show that it bore his name and date of birth. Using this
certificate, he had procured appointment to the post of Buffalo Attendant       D
in the Veterinary Department. The trial court convicted the accused for
the offences punishable under Sections 468, 471 and 419 IPC. On the
issue of sentence, it was specifically urged before the trial court that
benefit of Probation of Offenders Act, 1958 (for short ‘the Act’) may be
given to the respondent, Man Singh. The trial court came to the conclusion
that the accused had got service on the basis of forged documents               E
depriving a deserving unemployed person of getting such employment
and, therefore, according to the trial court, this is not a fit case to grant
probation. Accordingly, the trial court imposed punishment under various
provisions of IPC for different offences but essentially the accused was
to undergo rigorous imprisonment for one year and was to pay a total            F
fine of Rs.2000/-.
       3. The accused-respondent, Man Singh filed an appeal. The
Sessions Judge dismissed the appeal. On the issue of sentence he found
that the accused had been dealt with leniently and refused to interfere
with the sentence. A criminal revision was filed in the High Court. The
                                                                                G
High Court affirmed the conviction but reduced the substantive sentence
from one year to the period already undergone and enhanced the fine to
Rs.10,000/-.
       4. The accused-respondent, Man Singh deposited the fine and
then filed a petition under Section 482 of CrPC praying that the fine had
                                                                                H
574              SUPREME COURT REPORTS                               [2019] 13 S.C.R.


A     been deposited and since he is in Government job, he may be granted
      benefit of the Act. The learned Judge, without giving any other reasons,
      directed as follows:-
             “After having heard learned counsel for the parties, prayer is
             allowed and the benefit of Probation of Offenders Act is extended
B            to the petitioner for the purpose that the sentence, which has
             already undergone would not affect service career of the
             petitioner.
             With the aforesaid observations petition stands disposed of C.C.
             today.”
C            This order is challenged before us. At the outset, we note that the
      manner in which the learned Judge entertained the petition under Section
      482 CrPC is highly improper and uncalled for. There is no power of
      review granted to the Courts under CrPC. As soon as the High Court
      had disposed of the original revision petition, upheld the conviction, reduced
D     the sentence to the period already undergone and enhanced the fine, it
      became functus officio and, as such, it could not have entertained the
      petition under Section 482 CrPC for altering the sentence.
             5. It is well settled law that the High Court has no jurisdiction to
      review its order either under Section 362 or under Section 482 of CrPC1.
E     The inherent power under Section 482 CrPC cannot be used by the
      High Court to reopen or alter an order disposing of a petition decided on
      merits2. After disposing of a case on merits, the Court becomes functus
      officio and Section 362 CrPC expressly bars review and specifically
      provides that no Court after it has signed its judgment shall alter or review
      the same except to correct a clerical or arithmetical error3. Recall of
F     judgment would amount to alteration or review of judgment which is not
      permissible under Section 362 CrPC. It cannot be validated by the High
      Court invoking its inherent powers4.
            6. We have, therefore, no doubt in our mind that the High Court
      had no power to entertain the petition under Section 482 CrPC and alter
G     the sentence imposed by it. We may also add that the manner in which

      1
        State of Kerala v. M.M. Manikantan Nair, (2001) 4 SCC 752
      2
        State Rep. by D.S.P., S.B.C.I.D., Chennai v. K.V. Rajendran & Ors., 2009 CriLJ 355
      SC
      3
        Hari Singh Mann v. Harbhajan Singh Bajwa & Ors. (2001) 1 SCC 169
      4
H       Sooraj Devi v. Pyare Lal & Anr., AIR 1981 SC 736
           STATE OF MADHYA PRADESH v. MAN SINGH                                 575
                     [DEEPAK GUPTA, J.]

the probation has been granted is not at all legal. The trial court had         A
given reasons for not giving benefit of probation. When the High Court
was deciding the revision petition against the order of conviction, it could
have, after calling for a report of the Probation Officer in terms of Section
4 of the Act, granted probation. Even in such a case it had to give
reasons why it disagreed with the trial court and the first appellate court
                                                                                B
on the issue of sentence. The High Court, in fact, reduced the sentence
to the period already undergone meaning thereby that the conviction
was upheld and sentence was imposed. After sentence had been imposed
and served and fine paid, there was no question of granting probation.
       7. Another error is that the order quoted hereinabove has been
passed in violation of the provisions of Section 4 of the Act which             C
mandates that before releasing any offender on probation of good conduct,
the Court must obtain a report from the Probation Officer and can then
order his release on his entering bonds with or without sureties, to appear
and receive sentence when called upon during such period, not exceeding
three years, or as the Court may direct, and in the meantime to keep            D
peace and good behaviour. The proviso to sub-section (1) of Section 4
clearly provides that Court cannot order release of such an offender
unless it is satisfied that the offender or his surety has a fixed place of
abode or regular occupation in the place over which the Court can
exercise jurisdiction. Sub-section (2) lays down that before making any
order under sub-section (1), the Court shall take into consideration the        E
report of the Probation Officer. This Court in a number of judgments
has held that before passing an order of probation, it is essential to obtain
the report of the Probation Officer concerned. Reference in this behalf
may be made to M.C.D. v. State of Delhi & Anr.5
       8. In the present case, on 03.01.2011, the counsel for the accused-      F
respondent sought an adjournment on the ground that the accused
proposes to file a special leave petition (SLP) against the order passed
in criminal revision petition upholding his conviction. That SLP was filed
but dismissed on 28.01.2011. Once that SLP has been dismissed, we
cannot grant any relief to the accused-respondent.                              G
      9. We are also constrained to observe that the High Court in its
order directed that the sentence which the accused has already
undergone, would not affect his service career. We fail to understand

5
    AIR 2005 SC 2658
                                                                                H
576                SUPREME COURT REPORTS                      [2019] 13 S.C.R.


A     under what authority the High Court could have passed such an order.
      Even in a case where the High Court grants benefit of probation to the
      accused, the Court has no jurisdiction to pass an order that the employee
      be retained in service. This Court in State Bank of India & Ors. v. P.
      Soupramaniane6 clearly held that grant of benefit of probation under
      the Act does not have bearing so far as the service of such employee is
B
      concerned. This Court held that the employee cannot claim a right to
      continue in service on the ground that he was released on probation. It
      was observed:
               “The release under probation does not entitle an employee to claim
               a right to continue in service. In fact the employer is under an
C              obligation to discontinue the services of an employee convicted of
               an offence involving moral turpitude. The observations made by
               a criminal court are not binding on the employer who has the
               liberty of dealing with his employees suitably.”
             10. In the present case the accused obtained a job on the basis of
D     forged documents. Even if he was to be given benefit of the Act, then
      also he could not retain his job because the job was obtained on the basis
      of forged documents. We are constrained to observe that the High
      Court passed the order in a mechanical and pedantic manner without
      considering what are the legal issues involved.
E           11. In view of the above discussion, the appeal is allowed and the
      order of the High Court is set aside. Pending application(s), if any,
      stand(s) disposed of.

      Ankit Gyan                                                    Appeal allowed.
F




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      6
H         AIR 2019 SC 2187