Criminal Rules of Practice; C.V. Joseph Vs. State [Kerala High Court, 22-07-2016]

Criminal P.C. 1973 – S. 405 – Criminal Rules of Practice, 1982 (Kerala) – Rr. 114, 119 & 162 – Imprisonment till rising of the Court – Whether case bundle is necessary to execute the appellate court judgment modifying the trial court judgment and sentence – Held,  for execution of the sentence, the bundle of the file is not necessary in this case. Here is a case where only imprisonment till rising of the court awarded. Even if he was in jail for one day during trial, it can be ascertained from jail records. No prejudice will be caused to the accused.

2016 (3) KLT 618 : 2016 (4) KHC 196


IN THE HIGH COURT OF KERALA AT ERNAKULAM

K.P. JYOTHINDRANATH, J.

O.P.(Crl.) No.310 of 2016

Dated this the 22 nd day of July, 2016

PETITIONER(S)/COMPLAINANT

C V JOSEPH

BY ADVS.SRI.LIJI.J.VADAKEDOM SMT.REXY ELIZABETH THOMAS SRI.RAJEEV JYOTHISH GEORGE

RESPONDENT(S)/STATE AND ACCUSED

1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.

2. P.K.SULAIMAN

BY PUBLIC PROSECUTOR SMT. MADHUBEN

J U D G M E N T

This petition is filed under Article 227 of the Constitution of India. A frustrated indignant litigant is before this court. The prayer is for a direction to execute the judgment and sentence in Crl.A.No.501/2008 on the file of the Court of Sessions, Kottayam Division, by which the sentence in S.T. No.1264/2005 on the file of the Judicial First Class Magistrate Court-I, Kanjirappally was modified.

2. The petitioner is the complainant in S.T. No.1264/2005 on the file of the Judicial First Class Magistrate Court-I, Kanjirappally. It was a proceeding under Section 138 of the Negotiable Instruments Act. The accused was convicted by the trial court and was sentenced to undergo simple imprisonment for four months and to pay Rs.2 lakhs to the complainant as compensation under Section 357 (3) of Cr.P.C. The accused therein filed Crl.A.No.501/2008 before the Sessions Court, Kottayam. The appellate court confirmed the conviction and reduced the sentence as imprisonment till rising of the court and imposed a default imprisonment for two months, in case the compensation is not paid. Thereafter the second respondent/accused filed a revision petition before this court as Crl.R.P.No.3062/2009. The said revision petition was dismissed but granted six months’ time for payment of compensation. The said revision was dismissed as back as on 1.10.2009. Since the sentence was seen not executed, the petitioner herein filed Crl.M.C.4430/2014 before this court under Section 482 of Cr.P.C. The said petition was dismissed with an observation that since no proceeding is pending in any court under the Code of Criminal Procedure, the petitioner cannot invoke the jurisdiction under Section 482 of the Cr.P.C., but had to file a petition under Article 227 of the Constitution of India and thereon the petitioner moved this petition.

3. In this petition, pursuant to the report called, there is a report dated 27.6.2016 from the Judicial First Class Magistrate Court-I, Kanjirappally which states that the file is seen misplaced and the said fact already reported to this court and sought time to trace out the same. Here is a case where the case bundle lost at the execution stage. Prosecution started in the year 2005 and finally disposed in 2009. Sentence not so far executed. It cannot be considered as a case where this Court is helpless and can only lament upon the fate of the complainant.

4. The judgment and sentence of the trial court will merge with the judgment and sentence dated 26.6.2009 in Crl.A.No.501/2008 on the file of the Sessions Court, Kottayam Division, subject to the grace period granted by this court as per its order dated 1.10.2009 in Crl.R.P.No.3062/2009.

5. I have perused the order of this court in Crl.R.P.No.3062/2009. The said revision petition was dismissed. But it can be seen that thereafter this court granted six months time for payment of compensation with conditions. Paragraph No.3 of the said judgment reads as follows:

“Taking into account of the fact that the cheque was issued as part of the settlement of the liabilities relating to his brother and that the financial difficulties led the revision petitioner to face the prosecution, six months’ time is granted for payment of compensation, provided, he executes a bail bond for Rs.10,000/- with two solvent sureties each for like amount to the satisfaction of the trial court within three weeks. The trial court shall see the execution of sentence and report compliance.”

Thus it can be seen that there is a specific direction to the effect that the trial court shall see the execution of the sentence and shall report compliance. It appears that the said direction is not complied with even after an application under Section 482 of Cr.P.C. filed before this court. It can be examined whether case bundle is necessary to execute the appellate court judgment modifying the trial court judgment and sentence. In this case, it can be seen that sentence and compensation awarded by the appellate court became final.

6. Rule 119 of Criminal Rules of Practice states as follows:

119. Copy of appellate or revisional judgment to be forwarded to the Subordinate Court

(1) The Court shall, on the disposal of an appeal or revision, communicate forthwith a copy of its judgment or order to the Subordinate Court from whose judgment or order the appeal or revision had been filed. The steps taken by the appellate or revisional Court to enforce the sentence confirmed or imposed by that Court shall also be communicated to the Subordinate Court.

(2) The Subordinate Court shall, in case it is not the Trial Court, forward the copy of the judgment or order and the communication to the Trial Court.”

Rule 114 and 162 of Criminal Rules of Practice as well as Section 405 of the Code of Criminal Procedure are also relevant in this aspect. After going through the above provisions, it can be seen that for execution of the sentence, the bundle of the file is not necessary in this case. Here is a case where only imprisonment till rising of the court awarded. Even if he was in jail for one day during trial, it can be ascertained from jail records. No prejudice will be caused to the accused.

7. As the trial court judgment will merge with the appellate court judgment and as the revision petition stands dismissed, the following direction is given.

The order in Crl.R.P.No.3062/2009 produced as Ext.P2 in this case, certified as required under Section 405 of Cr.P.C., shall be sent to the appropriate court and the sentence shall be executed forthwith. A copy of this order shall be communicated to the Judicial First Class Magistrate Court-I, Kanjirappally and Sessions Court, Kottayam Division for compliance and report. The Sessions Court, Kottayam Division is also hereby directed to send a copy of the judgment in Crl.A. No.501/2008 dated 26.6.2009 to the Judicial First Class Magistrate Court-I, Kanjirappally. If any unforeseen hurdle crop up, the same shall be informed to the Registrar (Subordinate Judiciary), and the Registrar shall take appropriate steps.