Narendra Singh v. State Of U. P. — 1983 DIGILAW 39 (ALL)

Judgment B.C.Jauhari, J. 1. This revision is directed against the judgment of Sri V. P. Mathur, Sessions Judge, Meerut, dated 2-6-1982 passed in Criminal Appeal No. 57 of 1982 by which he has confirmed the judgment dated 29-3-1982 passed by the Judicial Magistrate in Criminal Case No. 807 of 1980 convicting and sentencing the applicant to 2 years' Rl and a fine of Rs. 5000/-, in default to undergo further rigorous imprisonment for 6 months, under section 406 IPC. 2. Vide order dated 7-6-1982 this revision was admitted by this Court only on the question of sentence. An application was subsequently moved that the revision was in fact admitted on merits and the order may be corrected. This application has been rejected by me. Learned counsel for the applicant has urged that notwithstanding the fact that this revision was admitted on the question of sentence only, he can be allowed to urge on merits that the conviction of the applicant is bad in law and for this reliance was placed on the case of Dulla v State, 1958 Cr. Law Journal 316 where it was held that where a, revision is admitted by the Application Judge only on the ground of sentence, the Judge hearing the revision is not bound by it and has unrestricted right to hear the same on merits and not to restrict the hearing exclusively to the question of sentence only. Learned counsel appearing on behalf of the complainant, on the other hand, urged that this case is no longer a good law inasmuch as previously the Magistrate used to pass a composite order convicting an accused and also sentencing him to a term of imprisonment or fine, but now, however, section 248 (2) CrPC provides that the Magistrate has to find the accused guilty first and then to pass sentence upon him according to law separately after hearing him on the question of sentence. It was, therefore, urged that under the new Code of Criminal Procedure which applies to the present case there are two orders one convicting the accused and another awarding him a sentence as provided under the law. It is open to the court of revision to admit a particular revision both on the question of conviction as well as on the question of sentence. It is open to the court of revision to admit a particular revision both on the question of conviction as well as on the question of sentence. Equally it is also open to the revisional court to confine itself only to the second part of the order, namely, where the accused has been awarded a particular sentence. It was urged that once on the question of conviction the applicant has been heard and the revision is admitted only on the question of sentence the necessary implication is that the merits of the case will not be gone into again and the, revision would be confined only to the question of sentence. It was further urged that the fact that this revision was not admitted on merits was fortified by the subsequent order passed by this Court on the review petition which has been rejected. 3. I have considered the arguments raised on this question and find that there is certainly a change in the 'procedure introduced by the new Code of Criminal Procedure by Act No. 2 of 1974. Previously the Magistrate after bearing the accused used to pass a judgment which contained both the findings regarding conviction and the order regarding the sentence. Now, however, the Magistrate has first to pass a judgment of conviction and then after giving an opportunity to the accused on the question of sentence pass an order regarding the same It is, therefore, permissible for a revisional court to admit a revision only on the second order of sentence and not on the first order of conviction as has been done in this case. I, however, hasten to add that this Court as a Court of Record charged with the duty of superintendence over the subordinate courts and examine the legality or otherwise of the orders passed by them can suo motu. if the conscience of the court is shocked, enter into the merits despite having admitted it only on the question of sentence. In order to do justice in the case I have, therefore, allowed the learned counsel for the applicant to urge all that he wants to regarding merits. 4. HAVING heard the learned counsel for the applicant and the learned counsel appearing for the complainant I feel that this revision has absolutely no force and must be dismissed. In order to do justice in the case I have, therefore, allowed the learned counsel for the applicant to urge all that he wants to regarding merits. 4. HAVING heard the learned counsel for the applicant and the learned counsel appearing for the complainant I feel that this revision has absolutely no force and must be dismissed. Learned counsel for the applicant urged that the finding recorded by the learned Magistrate and the learned Sessions Judge on the question of ownership of the scooter in question is erroneous. This finding given by the learned Magistrate on the basis of a sale note executed by the accused in favour of the complainant, is sought to be challenged on the ground that the sale receipt relates to scooter no. UTD-3143 and further that the courts below were persuaded to hold that this receipt bears the signature of the accused because he had signed in Hindi on paper no. 12A, the order of remand dated 14-9-80. In this connection the learned counsel invited my attention to Ex. Ka 1 and paper no. 12A and urged that Ex.Ka-1 is in respect of scooter no. UTD-3143 and that paper no. 12A does not bear the signature of the accused. I have considered the argument and feel that the finding of' fact arrived at by both the courts below cannot be gone into in this revision for the simple reason that the power of revision can only be exercised where there is a glaring defect in the procedure or there is a manifest error on a point of law which has resulted in flagrant miscarriage of justice. Apart from the question that the arguments raised by the learned counsel for the applicant relate to facts on which there is concurrent finding of fact, these arguments were never urged before the Magistrate or before the Sessions Judge. It was never doubted that the receipt Ex. Ka-1 related to UTD-2143 which was at one time owned by the accused. The case of the prosecution all along; has been that the complainant purchased this scooter no. UTD-2143 from the accused. There was never any doubt regarding the number of this scooter. Now for the first time it was urged on the basis of ocular examination of Ex. Ka-J that it relates to scooter no. UTD-3143. The case of the prosecution all along; has been that the complainant purchased this scooter no. UTD-2143 from the accused. There was never any doubt regarding the number of this scooter. Now for the first time it was urged on the basis of ocular examination of Ex. Ka-J that it relates to scooter no. UTD-3143. Learned counsel for the complainant has shown to me a photostat copy of the receipt which he had filed before the Magistrate on which Ex. Ka-1 was marked. Thiii receipt is in respect of scooter no. UTD-2143. It appears absolutely clear that the figure of " 2 " has been converted into the figure of " 3" in order to end support to the argument now raised. The overwriting in the figure is absolutely apparent even to the naked eye. If this receipt related to scooter no. UTD-3143 then the accused would have at once made a capital out of this in the court of the Magistrate and again urged it in the appellate court. On the other hand the learned Sessions Judge in his appellate judgment relies upon the number of the scooter occurring in Ex. Ka-1 as significant because the complainant would not have known the number of the scooter of the accused without the sale having been effected in his favour. 5. SIMILARLY with regard to the signature of the accused appearing on the remand order dated 14-9-1980 the learned counsel brought to my notice that there are no signatures now on paper no. 12 A. Learned counsel for the opposite party referred to the judgment of the learned Magistrate where at page 6 of the judgment the argument raised before the Magistrate was that the signature on the remand order should be got compared with the signature of the accused through a handwriting expert. It was never set up that the remand order did cot bear any signature at all. In the grounds of appeal before the Sessions Judge the applicant never urged that the remand order did not bear any signature whatsoever. It might also be mentioned that the grounds of appeal did net allege that the receipt related to scooter no. UTD-3143 and not to UTD-2143. Even in the grounds of revision before this Court no ground was taken that the receipt related to scooter no. It might also be mentioned that the grounds of appeal did net allege that the receipt related to scooter no. UTD-3143 and not to UTD-2143. Even in the grounds of revision before this Court no ground was taken that the receipt related to scooter no. UTD-3143 and not to UTD-2143,, SIMILARLY in the grounds of revision no such ground is taken that he remand order did not bear any signature whatsoever much less of the accused applicant. Both the courts below have relied on this signature and it is obvious that some tampering has been done in this regard also. Learned counsel for the complainant has drawn my attention to the case of State of Maharashtra v. Ramdas Shrinivas Nayak, AIR 1982 SC 1249 . At page 1251 of the report it was observed as follows :- "The principle is well settled that statements of fact as to what transpired at the hearing recorded in the judgment of the court are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there." It was further laid down in para 7 as follows : "So the Judges' record is conclusive. Neither lawyer nor litigant may claim to contradict it except before the Judge himself but no where else." Consequently the revisionist court make submissions against the observation made in the judgments. 6. Considering all the facts and circumstances of the case I feel that this revision which was admitted on the question of sentence and which w as allowed to be argued even on merits has no merits at all. The finding of ownership of the scooter in question recorded by both the courts below is a finding of fact which is based on evidence and which, therefore, cannot be distrubed in this revision. The receipt Ex. The finding of ownership of the scooter in question recorded by both the courts below is a finding of fact which is based on evidence and which, therefore, cannot be distrubed in this revision. The receipt Ex. Ka-1 related to the scooter belonging to the accused and subsequently purchased by the complainant and it bore the number UTD-2143 and not UTD-3143 as is now sought to be urged. The figure 2' has been deliberately made into the figure " 3 " by putting a loop over it. Such a ground was never urged before the Magistrate and there was no dispute at any time regarding the number of the scooter at all. Similarly the judgments of the Magistrate and of the Sessions Judge clearly go to show that there was signature in Hindi on the remand order. It does not matter that the signature is not to be found now and it is likely and it has been done away with. The signature in Hindi on the remand order was merely a circumstance relied upon to negative the suggestion on behalf of the accused that he does not sign in Hindi and no more. There is evidence which has been relied upon by both the courts below that Ex. Ka-1 bears the signatures of the accused. This is a question of fact and cannot be gone into in this revision: In view of what I have stated above I do not find any force in this revision. It is accordingly dismissed. 7. The applicant is on bail. He shall be taken into custody forthwith to serve out his sentence according to law. THE bail bonds are cancelled. Petition dismissed.