In CRM-M-22642-2022-PUNJ HC- P&H HC directs Sessions Judge, Tarn Taran to conduct inquiry in case where during appeal pendency, reader of JM Court enhanced quantum of sentence from 2 months to 2 years by modifying judgment in absence of such direction to do so Justice Arvind Singh Sangwan [23-05-2022]

Read Order: Gurmahabir Singh v. State of Punjab 

Monika Rahar

Chandigarh, May 30,2022: While dealing with a peculiar case wherein the original judgment of conviction was modified during the pendency of the convict’s appeal by the reader of the Court by enhancing the quantum of the sentence from 2 months to 2 years in absence of any order to do the same, the Punjab and Haryana High Court has directed the Sessions Judge, Tarn Taran to conduct an inquiry in the matter. 

The Bench of Justice Arvind Singh Sangwan observed that (as per an order of the Judicial Magistrate, Tarn Taran passed subsequent to the pronouncement of the judgment) all the convicts were convicted u/Ss. 323/326/120-B IPC r/w 149 IPC but due to “typographical mistake” offence Section 323 was mentioned twice, while offence u/S. 326 IPC was not mentioned in the column of conviction. Thus, the JM directed (the reader of the Court) that instead of Section 323 IPC, which was mentioned at two places, Section 326 IPC be substituted at one place. 

Against this backdrop, the High Court observed that there was no such direction in the afore-said order to enhance the sentence from 02 months to 02 years and thus Justice Sangwan held,

“While deciding the appeal, the lower appellate Court will also record the findings whether in terms of Section 362 Cr.P.C., such modification [in judgment enhancing quantum of sentence] was permissible under law or not.”

The prayer in this petition was for setting aside the order, whereby during the pendency of the appeal, the judgment passed by the trial Court, was amended and modified. 

On September 22, 2021, the trial Court, while convicting the petitioner along with five other co-accused ordered that the prosecution was able to discharge its onus successfully for the offences under section 323, 326, 120-B read with Section 149 of the IPC. Therefore, all accused were held guilty under section 323, 326, 120-B read with section-149 of the IPC. 

Thereafter, while passing the order on quantum of sentence, all the accused were sentenced to undergo rigorous imprisonment for 03 months under Section 323 IPC read with Section 149 IPC and 06 months rigorous imprisonment under Section 120-B IPC with a total fine of Rs. 2500/- each. 

Aggrieved, the petitioner preferred an appeal before the lower appellate Court and in the meantime, in November of 2021, the trial Court passed the impugned order stating that the accused persons were held guilty for the commission of offence punishable under section 323/326/120-B IPC r/w section 149 IPC and all of them were acquitted from the charges u/Ss. 148/382/392 of IPC. 

Further, the Order stated that after hearing on quantum of sentence, all the convicts were convicted u/Ss. 323/326/120-B IPC r/w 149 IPC but due to typographical mistake offence Section 323 was mentioned twice, while offence u/S. 326 IPC was not mentioned in the column of conviction. 

The Order added that since it is “just a typographical mistake”, therefore, as per Section 362 Cr.P.C. (stating that a clerical or arithmetical error can be corrected), the reader attached to the Trial court was directed to make the necessary correction with red Ink on the judgment of September 2021. It was also held, “this order be read as part of judgment dated 22.9.2021. File be consigned to the record room, after due compliance.” 

It was the case of the petitioner’s counsel that in aforesaid order, passed under the signatures of JMIC, Tarn Taran, there was no mention of sentencing the petitioner/accused persons for 02 years under Section 326 IPC and the only direction was that some corrections be made that the order on sentence was passed under Sections 323, 326 and 120-B of the IPC. Moreover, the Counsel added that when the aforesaid order was passed, the accused persons including petitioner were not afforded any opportunity of hearing as no notice was issued to them. 

Thus, it was the counsel’s case that in the corrections made in the original order, which was signed by Mr. Harpreet Singh Simak, JMIC, Tarn Taran, Section 326 read with Section 323 IPC was added and the sentence was enhanced to rigorous imprisonment for 02 years with a fine of Rs. 1000/- with default clause. This was done under the signatures of Mr. Vijay Kumar, Reader of the Court and not by the JMIC/trial Court.

The counsel further submitted that in fact once the Judicial Magistrate passed the order on sentence, the corrections in the original judgment, if any, was to be done under the signatures of the Judicial Magistrate only, though it will be a debatable issue whether subsequent to passing of any judgment, the same Judicial Magistrate can enhance the sentence from 02 months to 02 years. 

Also, the petitioner relied upon an order of the Sessions Judge, Tarn Taran, vide which the appeal was adjourned for awaiting the further report from the trial Court/Judicial Magistrate regarding supply of corrected judgment. Further, it was added by the Counsel that in the meantime, concerned Judicial Magistrate Mr. Harpreet Singh Simak resigned and went abroad; there was no possibility of delivering the corrected copy under the signatures of the same Judicial Magistrate.

After considering these submissions, the Court was of the view that though all these points were to be decided by the Sessions Judge, Tarn Taran, the administrative head of the Sessions Division, Tarn Taran, but on the face of it, the Court opined that it required an inquiry as to how the corrections were made under the signatures of the Reader of the Court concerned, thereby enhancing the sentence, when (the original order of the trial Court) only directed that instead of Section 323 IPC, which was mentioned at two places, Section 326 IPC be substituted at one place and there was no such direction to enhance the sentence from 02 months to 02 years. 

Therefore, it was directed that the lower appellate Court would allow the amendment on the grounds of appeal assailing the aforesaid order and after conducting an inquiry on the administrative side will decide the appeal in accordance with law. 

“While deciding the appeal, the lower appellate Court will also record the findings whether in terms of Section 362 Cr.P.C., such modification was permissible under law or not”, the Court held.