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CASE NO.: Appeal (crl.)  1039 of 2001

PETITIONER: Mohd. Yaseen

RESPONDENT: State of U.P.

DATE OF JUDGMENT: 17/07/2007

BENCH: Dr. ARIJIT PASAYAT & P.P. NAOLEKAR

JUDGMENT: J U D G M E N T

CRIMINAL  APPEAL NO. 1039  OF 2001 (With Crl. A. No. 1040 of 2001)

Dr. ARIJIT PASAYAT, J.

1.      These two appeals are inter-linked. The order under  challenge in Crl.A.No.1039 of 2001 relates to an order dated  15.12.2000 passed by a learned Single Judge of the Allahabad  High Court dismissing the application filed under Section 482  of the Code of Criminal Procedure, 1973 (in short the ’Code’).  The said application was filed to recall the order dated  27.7.2000 passed in Criminal Revision No.489 of 1986. The  said order is the subject matter of challenge in Crl.A.No.1040  of 2001. A brief reference to the factual aspects would suffice.  

2.      The appellant was convicted for an offence punishable  under Sections 7 and 16 of the Prevention of Food  Adulteration Act, 1954 (in short the ’Act’). The learned Judicial  Magistrate (Economic Offences), Bareilly, found the accused  guilty and convicted him as afore-noted and sentenced him to  rigorous imprisonment for one year and to pay a fine of  Rs.2,000/- with default stipulation.  

3.      The appeal preferred was dismissed by the learned  Additional Sessions Judge, Bareilly. A revision was filed before  the High Court. On the date fixed i.e. 27.7.2000 none  appeared for the appellant. Shri S.A.N. Shah, advocate who  appeared stated that he has no instructions to conduct the  case. The High Court perused the records and after hearing  learned Government Advocate found that the appellate Court  had elaborately dealt with the evidence on record and on  perusal of the materials on record had rightly dismissed the  petition. An application to recall the order was purportedly  filed under Section 482 of the Code stating that Shri S.A.N.  Shah was not the authorized lawyer. The revision petition in  fact had been filed by Shri U.N. Sharma whose name was not  printed in the cause list.  

4.      When the appellant was not represented the High Court  sent  notice to the appellant to engage a counsel to defend his  case, but no proof of service was there. It was further  submitted that the High Court has erroneously held that  Section 482 of the Code had no role to play. Additionally, it is  submitted that the appellant had produced the certificate of  his age and material in that regard has been placed before the  appellate Court but it did not consider the same.

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5.      It is to be noted that the appellant had taken a definite  stand before the First Appellate Court about his  age being  less than 18 years. Reference was made to Section 20AA of the  Act to contend that the probation was to be granted. The High  Court did not accept the plea and held that once the appeal  has been decided on merits it is not open to exercise power  under Section 482 of the Code.

6.      Learned counsel for the State on the other hand  supported the order passed.   7.      In State of Orissa v. Ram Chander Agrawal (AIR 1979 SC  87) it was noted in paragraph 20 as follows:  "\005..This decision instead of supporting the  respondent clearly lays down, following U.J.S.  Chopra v. State of Bombay  (AIR 1955 SC 633)  that once a judgment has been pronounced  by  a High Court either in exercise of its appellate  or its revisionsal jurisdiction, no review or  revision can be entertained against that  judgment as there is no provision in the  Criminal Procedure Code which would enable  the High Court to review the same  or to  exercise the revisional jurisdiction\005.. The  provisions of section 561A of the Code cannot  be invoked for exercise of a power which is  specifically prohibited by the Code."

8.      In Hari Singh Mann v. Harbhajan Singh Bajwa and Ors.  (JT 2000 Supp (2) SC 394) the position was re-iterated in para  10 as follows:

"Section 362 of the Code mandates that no  court, when it has signed it judgment or final  order disposing of a case shall alter or review  the same except to correct a clerical or  arithmetical error. The section is based on an  acknowledged principle of law that once a  matter is finally disposed of by a court, the  said court in the absence of a specific  statutory provision becomes functus officio  and disentitled to entertain a fresh prayer for  the same relief unless the former order of final  disposal is set aside by a court of competent  jurisdiction in a manner prescribed by law.  The court becomes functus officio the moment  the official order disposing of a case is signed.  Such an order cannot be altered except to the  extent of correcting a clerical or arithmetical  error\005."

9.      Therefore, the High Court rightly observed that the  application under Section 482 of the Code is to be dismissed.           10.     So far as the other appeal is concerned, it is to be noted  that a specific plea was taken that the age of the accused is  less than 18 years. Section 20AA of the Act reads as follows:

"20AA- Application of the Probation of  Offenders Act, 1958 and section 360 of the  Code of Criminal Procedure, 1973- Nothing   contained in the Probation of Offenders Act,  1958 (20 of 1958), or Section 360 of the Code  of Criminal Procedure, 1973 (2 of 1974), shall

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apply  to a person convicted of an offence  under this Act unless that person is under  eighteen years of age."  

        11.     If therefore the appellant succeeds in showing that he  was less than 18 years of age on the date of occurrence the  applicability of Section 20AA has to be considered.  This plea  was not specifically taken before the trial Court and only some  documents were filed before the First Appellate Court. The  trial Court did not get the opportunity to examine the same.  The First Appellate Court did not find any substance in the  plea as  the documents were not proved. A specific plea was  taken before the High Court in the revision petition about  unsustainability of the conclusion. It is a case where question  relating to age of the accused has not been considered in the  proper perspective by the first Appellate Court and the High  Court. Since it is a vital issue  which has substantial bearing  on the subject matter of dispute, we remand the matter to the  High Court to consider acceptability of the plea relating to age  and decide the matter afresh in accordance with law.  

12.     The appeals are accordingly disposed of.