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2010 DIGILAW 881 (ALL)

JHANTOO v. STATE OF U. P.

2010-03-17

VIRENDRA SINGH

body2010
JUDGMENT Hon’ble Virendra Singh, J.—Jhantoo and five others have- preferred this revision against the judgment and order dated 1st June, 2002 passed by learned Special Judge/A.D.J. Azamgarh in Criminal Revision No. 331 of 1999, Kamal Prasad v. State of U.P. and others, whereby the order dated 13th October, 1999 of acquittal thereby acquitting the present revisionist passed by Judicial Magistrate, Azamgarh in Criminal Case No. 1418 of 1996 initiated upon the complaint of respondent No. 2, Kamla Prasad for the offences under Sections 147 and 323, I.P.C. is set aside and the case is remanded for trial a fresh. 2. At the time of hearing of this revision, no one appeared on behalf of the revisionist as well as on behalf of respondent No. 2 despite notice to them while learned AGA remained present, who is heard on this revision on the grounds mentioned in the memo of this revision. 3. In the grounds of the revision, it is mentioned that the impugned order is illegal because in view of specific provisions of Section 378(4), Cr.P.C., the order of acquittal dated 13th October, 1999 passed by learned Magistrate upon complaint filed by the respondent No. 2 could have been challenged only by filing an appeal. Respondent No. 2/the complainant had challenged the acquittal order in criminal revision No. 331 of 1999 under Section 397, Cr.P.C. before the learned Sessions Judge while in such case the revision against an order of acquittal is clearly barred as per provisions under Section 401(4), Cr.P.C. but even then the learned Sessions Judge wrongly entertained the revision and allowed it by way of impugned order thereby committing gross irregularity and illegality. Apart from it the learned Sessions Judge was not empowered to reasses, revaluate and reapprise the evidence and to interfere with the evidence of facts arrived at by the learned Judicial Magistrate. 4. Learned AGA contended that there is no illegality in the impugned order either on the facts of the case or in the eyes of law because the learned Sessions Judge has passed the order under the authority and jurisdiction vested in the Sessions Judge under Section 397, Cr.P.C. 5. In the light of the contention raised on behalf of the State of U.P. and in the light of the grounds of this revision I have gone through the facts on record. In the light of the contention raised on behalf of the State of U.P. and in the light of the grounds of this revision I have gone through the facts on record. The law as is laid down in various cases by Hon’ble Supreme Court as well as by various High Courts in our country is well known as is summarised below : The revisional Court is empowered to exercise all the powers conferred on the Appellate Court by virtue of the provisions contained in Section 401, Cr.P.C. Section 397, Cr.P.C. confers power on the High Court or Sessions Court as the case may be, for the purpose of satisfying itself as to the correctness, legality or propriety of any finding sentence or order recorded or passed and as to the irregularity of any proceeding of such inferior Court. It is for the above purpose, if necessary, the High Court or Sessions Court can exercise of appellate powers. Section 401, Cr.P.C. conferring power of Appellate Court on the Revision Court is with the above limited purpose. Section 395 to 401, Cr.P.C. read together do not indicate that the revisional power of the High Court can be exercised as the consequent appellate power. The revision powers though very wide are purely discretionary, to be fairly exercised according to the exigencies of each case. It is very well settled that it is normally to be exercised only in exceptional case if there is glaring defect in the procedure or there is manifest error on point” of law and consequently there has been a flagrant miscarriage of justice. These powers are extraordinary powers which must be exercised with due regard to the circumstances of each particular case. High Court will not interfere on a technical ground, but may interfere only when substantial question arises or when a material error effects the decision. It may interfere when a jurisdiction vested has been exercised in an improper manner or improper ground. Even if the order is wrong or illegal, the High Court will not always interfere when substantial justice has been done or no prejudice has resulted to the accused. The error of law must lead to a failure of justice. In Revisional matter the High Court does not take a technical view and interfere in every case when an order has been made irregular or improper. The error of law must lead to a failure of justice. In Revisional matter the High Court does not take a technical view and interfere in every case when an order has been made irregular or improper. The fact that the High Court as an Court of appeal might have taken different view is no ground for interference. The revisional jurisdiction will not be exercised in such a way as given right of appeal in cases excluded by the Criminal Procedure Code. 6. Section 378(4) pertains to the filing of appeal in the High Court on an application made to it by the complainant in this behalf and if High Court grants special leave to appeal from the order of acquittal. These provisions reveals that if an order of acquittal is passed in any case instituted upon complaint and the High Court on an application made to it by the complainant in this behalf grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. Section 378(4), Cr.P.C. read with Section 401 (4), Cr.P.C. shows that whereunder Criminal Procedure Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. Thus when Section 378(4), Cr.P.C. provides that if the order of acquittal is passed in the case instituted upon complaint, the appeal may be filed against that acquittal after the special leave to appeal from the High Court on the application of the complainant, therefore, revision was not entertainable by the Sessions Judge in view of Section 401 (4) Cr.P.C. Here in this case, the law laid down by this Court in the case of Dharmveer v. Nemwati 2001 Cr LJ 4427, is very much relevant, in which this Court held that revision against order of acquittal is barred by Section 401 (4) of Criminal Procedure Code as the order of acquittal is appealable under Section 378(4) of the Code. 7. 7. No doubt revision by Session Court is permissible as per provisions under Section 399, Cr.P.C. which contains the words “in any proceeding” and confirms on the Sessions Judge the powers conferred by Section 401, Cr.P.C. but since Section 401(4), Cr.P.C. is very much clear in this regard that whereunder the Code appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. Therefore, in such circumstances the revisional power in this regard by the Sessions Judge is restricted against the order of acquittal by virtue of the provisions contained in Section 401 (4) read with Section 378(4) of Cr.P.C. Hence in the aforesaid circumstances, this revision has some force to this extent that the learned Sessions Judge was not empowered to revise the order passed by the learned Magistrate pertaining to the acquittal of the accused. Therefore, this revision deserves to be allowed and is hereby allowed accordingly. The impugned order is hereby set aside. ————