The release under probation does not entitle an employee to claim a right to continue in service.=In the present case the accused obtained a job on the basis of 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.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 410 OF 2011
STATE OF MADHYA PRADESH    …APPELLANT(S)
Versus
MAN SINGH        …RESPONDENT(S)
J U D G M E N T
Deepak Gupta, J.
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
committed offences punishable under Sections 468, 471 and 419
of   Indian   Penal   Code,   1860   (for   short   ‘IPC’).     The   allegation
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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 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 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 fine of Rs.2000/­.
3. The accused­respondent, 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
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refused to interfere with the sentence.   A criminal revision was
filed in the High Court.  The 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 accused­respondent, Man Singh deposited the fine and
then filed a petition under Section 482 of CrPC praying that the
fine had 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   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.”
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   the   sentence   to   the
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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
.   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
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 the sentence imposed by it.  We may also add that
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 Sooraj Devi v. Pyare Lal & Anr., AIR 1981 SC 736
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the manner in which the probation has been granted is not at all
legal.  The trial court had 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 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
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 peace and good
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behaviour.   The proviso to sub­section (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.  Sub­section (2) lays down that
before making any order under sub­section (1), the Court shall
take into consideration the 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
accused­respondent 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 accused­respondent.
5 AIR 2005 SC 2658
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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  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   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 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 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
6 AIR 2019 SC 2187
7
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.  
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. 
…………………………….J.
(Deepak Gupta)
……………………………..J.
(Aniruddha Bose)
New Delhi
November 04, 2019
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