Sunil Kumar Vs. State
[CRL. M.P. No. 7477 of
2012 in S.L.P (CRL.) No.2430 of 2012]
O R D E R
Dr. B.S. CHAUHAN, J
Once it had been commented that anti-social elements i.e. FERA violators, bride
burners and whole horde of reactionaries have found their safe haven in the
Supreme Court and such a comment became subject matter of contempt of this
Court and had to be dealt with by this Court in P.N. Duda v. P. Shiv Shanker
& Ors., AIR 1988 SC 1208.
Court in Rathinam v. State of Tamil Nadu & Anr., (2011) 11 SCC 140 quoted
the observations made by the High Court in that case expressing its views that
common man must feel assured to get justice and observed as under: "Let
not the mighty and the rich think that courts are their paradise and in the
legal arena they are the dominant players."
judgments make one thing crystal clear that criminals do not hesitate approaching
courts even by abusing the process of the court and some times succeed also. The
instant case belongs to the same category. Petitioner feels that merely because
he is a black- marketeer and succeeded in exploiting the helplessness of the poor
people of the Society and is capable of engaging lawyers, he has a right to
use, abuse and misuse the process of the court and can approach any court any time
without any hesitation and without observing any required procedure prescribed
FIR dated 15.9.1998 was lodged against the petitioner and one other person
under Section 7 of Essential Commodities Act, 1955 (hereinafter called the Act
1955) as they were found in possession of 1370 litres of blue kerosene and
indulging in unauthorised sale thereof in violation of the provisions of
Section 7 of the Act, 1955. After completing investigation chargesheet was
filed and trial commenced.
trial court vide judgment and order dated 27.10.1999/2.11.1999 found them
guilty of the said offence and awarded sentence of imprisonment for one year
alongwith a fine of Rs.2,000/- each. Against the aforesaid order, the appeal of
the petitioner stood dismissed by the High Court vide judgment and order dated 30.7.2010.
Petitioner preferred an application dated 25.7.2011 before the High Court for
modifying the aforesaid judgment and order dated 30.7.2010 giving him the
benefit of the provisions of Section 360 of Code of Criminal Procedure, 1973
(hereinafter called Cr.P.C.) and/or Section 4 of the Probation of Offenders
Act, 1958 (hereinafter called the Act 1958). The said application was dismissed
vide impugned order dated 19.9.2011.
may be pertinent to mention that against the judgment and order dated
30.7.2010, the petitioner had filed SLP (Crl.) no.1469 of 2011 on 13.10.2011
which was dismissed by this Court vide order dated 27.1.2012. Subsequent
thereto this special leave petition has been filed on 29.2.2012 challenging the
order dated 19.9.2011. No explanation has been furnished as why the present
petition could not be filed during the pendency of the earlier SLP or both the orders
could not be challenged simultaneously as the order impugned herein had been passed
much prior to the filing of the first SLP on 13.10.2011, and petitioner
surrendered to serve out the sentence only on 13.1.2012.
High Court dealt with various propositions of law while dealing with the averments
raised on his behalf including the application of the provisions of Section 362
Cr.P.C. which puts a complete embargo on the criminal court to reconsider any case
after delivery of the judgment as the court becomes functus officio.
Court in a recent judgment in State of Punjab v. Davinder Pal Singh Bhullar
& Ors. etc., AIR 2012 SC 364 dealt with the issue considering a very large
number of earlier judgments of this Court including Vishnu Agarwal v. State of
U.P. & Anr., AIR 2011 SC 1232 and came to the conclusion: "Thus, the
law on the issue can be summarised to the effect that the criminal justice
delivery system does not clothe the court to add or delete any words, except to
correct the clerical or arithmetical error as specifically been provided under the
statute itself after pronouncement of the judgment as the Judge becomes functus
officio. Any mistake or glaring omission is left to be corrected only by the
appropriate forum in accordance with law."
counsel for the petitioner placed a very heavy reliance on the judgment of this
Court in Kunhayammed & Ors. v. State of Kerala & Anr., (2000) 6 SCC
359, wherein this court has held that in case the special leave petition is
dismissed by this Court in limine, party aggrieved may file a review petition
before the High Court. The said judgment has been explained in various
subsequent judgments observing that in case the review petition has been filed
before the High Court prior to the date the special leave petition is dismissed
by this Court, the same may be entertained. However, a party cannot file a review
petition before the High Court after approaching the Supreme Court as it would
amount to abuse of process of the court. (See: Meghmala & Ors. v. G.
Narasimha Reddy & Ors. (2010) 8 SCC 383). The ratio of the aforesaid case has
no application in the instant case as that was a matter dealing with civil
reliance has been placed on behalf of the petitioner on the judgment of this
Court in Chhanni v. State of U.P., (2006) 5 SCC 396, wherein the court itself
held as under: "9. The High Court is justified in its view that there is no
provision for modification of the judgment." Further direction has been
issued by this court to re-consider the case exercising its power under Article
142 of the Constitution of India. Thus, the aforesaid judgment does not lay down
the law of universal application, nor it deals with the provisions of Section
362 Cr.P.C. Thus, in view of the above, the said judgment has also no application
in the instant case.
High Court in the impugned judgment came to the right conclusion that court
could not entertain the petition having become functus officio.
that as it may, petitioner being the black-marketeer presumed that he had a
right to dictate terms to the court and get desired results, thus, approached this
Court again and sought the relief prayed before the High Court. Petitioner has lost
in four courts earlier. In this fact-situation whether there should be any restrain
on the petitioner or he should be permitted to abuse the judicial process as he
Court in Dr. Buddhi Kota Subbarao v. K. Parasaran & Ors., AIR 1996 SC 2687
observed as under: "No litigant has a right to unlimited drought on the
Court time and public money in order to get his affairs settled in the manner as
he wishes. Easy access to justice should not be misused as a licence to file
misconceived or frivolous petitions."
Sabia Khan & Ors. v. State of U.P. & Ors., AIR 1999 SC 2284, this Court
held that filing totally misconceived petition amounts to abuse of the process
of the Court and waste of courts' time. Such litigant is not required to be
dealt with lightly.
in Abdul Rahman v. Prasony Bai & Anr., (2003) 1 SCC 488, this Court held
that wherever the Court comes to the conclusion that the process of the Court
is being abused, the Court would be justified in refusing to proceed further and
refuse the party from pursuing the remedy in law.
otherwise, the issue as to whether benefit of the Act 1958 or Section 360
Cr.P.C. can be granted to the petitioner is no more res integra. In Issar Das
v. The State of Punjab, AIR 1972 SC 1295, this Court dealt with the case under
the provisions of Prevention of Food Adulteration Act observing that
adulteration of food is a menace to public health and the statute had been enacted
with the aim of eradicating that anti-social evils and for ensuring purity in the
articles of food. The Legislature thought it fit to prescribe minimum sentence
of imprisonment. Therefore, the court should not lightly resort to the
provisions of the Act 1958 in case of an accused found guilty of offences under
the Prevention of Food Adulteration Act.
M/s. Precious Oil Corporation & Ors. v. State of Assam, AIR 2009 SC 1566,
this Court dealt with the issue of application of the Act 1958 in case of
offences punishable under Section 7 of the Act, 1955. The Court did not grant
the benefit of the said provisions to the appellant therein placing reliance
upon the judgment of this Court in Pyarali K. Tejani v. Mahadeo Ramchandra
Dange & Ors., AIR 1974 SC 228 wherein this Court has held as under: "The
kindly application of the probation principle is negatived by the imperatives
of social defence and the improbabilities of moral proselytisation. No chances
can be taken by society with a man whose anti-social operations, disguised as a
respectable trade, imperil numerous innocents.
He is a security risk.
Secondly, these economic offences committed by white-collar criminals are unlikely
to be dissuaded by the gentle probationary process. Neither casual provocation nor
motive against particular persons but planned profit-making from numbers of consumers
furnishes the incentive - not easily humanised by the therapeutic probationary
in view of the above, the relief sought by the petitioner cannot be granted. Petition
is misconceived and untenable. The petition being devoid of any merit, is
accordingly dismissed with the cost of Rs.20,000/- which the petitioner is
directed to deposit within a period of four weeks with the Supreme Court Legal
Services Authority and file proof thereof before the Registrar of this Court, failing
which the matter be placed before the Court for appropriate direction for
(Dr. B.S. CHAUHAN)
(JAGDISH SINGH KHEHAR)