Research › Search › Judgment

Allahabad High Court · body

2014 DIGILAW 2147 (ALL)

RAM KISHUN GUPTA v. STATE OF U. P.

2014-07-21

RANJANA PANDYA

body2014
Mrs. Ranjana Pandya, J. This revision has been preferred against the judgment and order passed by the Xlth Additional Sessions Judge, Allahabad dated 1-2-1988 in Criminal Appeal No. 108 of 1987 dismissing the appeal while maintaining the conviction of the revisionist, but instead of sentencing him to six months' rigorous imprisonment directing him to furnish a security and a personal bond of Rs. 1000 each of good behaviour for a period of one year. 2. Brief facts of the case are that on 27-7-1980 at about 9:20 a.m. at Village Bharwari, Police Station Kokhraj opposite party No. 2 Ameeruddin was sitting in his shop. His customer Ali Mohammad and Samai Lal were also present with him at the shop, suddenly the revisionist Ram Kishun Gupta alongwith his companion Come and threatened the opposite party No. 2 to withdraw the case, which he had filed at Kanpur. When opposite party No. 2 refused to do so, the revisionist threatened to kill him. Opposite party No. 2 lodged a report on the same day at 13.05 at Police Station Kokhraj, which was registered as N.C.R. No. 235 under Sections 504 and 506, I.P.C. and filed a complaint case against the revisionist on 28-7-1980. The statements were recorded under Sections 200 and 202, Cr.P.C. and the revisionist was summoned under Section 506, I.P.C. After recording evidence of P.W.-1 Ameeruddin, P.W-2 Ali Mohammad and P.W.-3 Samai Lal. The prosecution evidence was closed, statement of the accused was recorded under Section 313, Cr.P.C. and after perusal of the evidence of both the parties, the learned lower Court convicted the revisionist for six months' rigorous imprisonment. Feeling aggrieved the revisionist preferred appeal bearing Criminal Appeal No. 108 of 1987, in which the impugned order was passed. 3. Feeling aggrieved, the revision has been filed. When the case was called out, none was present on behalf of the revisionist. Heard learned AGA and perused the material on record. 4. The witnesses P.W.-1 Ameeruddin, P.W.-2 Ali Mohammad and P.W.-3 Samai Lai have categorically supported the pros¬ecution version and both the Courts be¬low have concurrently given the finding that the charges against the accused stands proved. 5 I have gone through the impugned judgment and order and also other mate¬rials on record. 4. The witnesses P.W.-1 Ameeruddin, P.W.-2 Ali Mohammad and P.W.-3 Samai Lai have categorically supported the pros¬ecution version and both the Courts be¬low have concurrently given the finding that the charges against the accused stands proved. 5 I have gone through the impugned judgment and order and also other mate¬rials on record. It is settled position of law that High Court will exercise its revisional power where there is a material error or defect in law or procedure, misconcep¬tion or misreading of evidence, failure to exercise or wrong exercise of jurisdiction or where the facts admitted or proved do not disclose any offence. 6. As a broad proposition, the inter¬ference may be justified ( a) where the de¬cision is grossly erroneous; ( b) where there is no compliance with the provisions of law; ( c) where the finding of fact affect-' ing the decision is not based on the evi¬dence; ( d) where the material evidence of the parties has not been considered; and ( e) where the judicial discretion is exer¬cised arbitrarily or perversely. 7. In exercise of the revisional jurisdiction, it will be beyond its power and jurisdiction to re-assess the evidence. Appraisal of the evidence is not permissible in revision petition. Hon'ble Supreme Court in State of Kerala v. Putthumana lilath Jathavedan Namboodiri, 1999 ( 1) JIC 530 ( SC): AIR 1999 SC 981 , has held that the High Court while hearing revisions does not work as a Appellate Court and will not re-appreciate the evidence, unless some glaring feature is pointed out which may show that injustice has been done. 8. Hon'ble the Apex Court in Jagannath Chaudharyv. Ramayan Singh, 2003 ( 1) JIC 958 ( SC): AIR 2002 SC 2229 , has held that revisional jurisdiction is normally to be exercised only in exceptional cases where there is a glaring defect in the procedure or there is a manifest error or point of law and consequently there has been a flagrant miscarriage of justice. In Munna Dew v. State ofRajasthan & Ors." 2002( 1) JIC 78 ( SC): AIR 2002 SC 107 , it has been further held that while exercising the revisional powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate Courts are required to do. 9. In Munna Dew v. State ofRajasthan & Ors." 2002( 1) JIC 78 ( SC): AIR 2002 SC 107 , it has been further held that while exercising the revisional powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate Courts are required to do. 9. Hon'ble the Apex Court in State of Karnataka v. Appa Balu Ingale & Ors., AIR 1993 SC 1126 , has held that generally speaking, concurrent findings of fact arrived at by two Courts below are not to be interfered with by the High Court in absence of any special circumstances or if same are perverse in any manner. 10. Learned Court below have considered all aspects of the matter and have come to the conclusion that there were no latches on the part of prosecution and the case was proved beyond doubt. In the statement under Section 313, Cr.P.C., the accused has denied the total proceed¬ings but has not alleged that why he has been falsely implicated. 11. Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of 7 years or less, to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of Section 4 of the Probation of Offenders Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any rule for Probation Officers in assisting the Courts in relation to supervision and other matters while Probation of Offenders Act does make such a provision. While Section 12 of the Probation of Offenders Act states that the persons found guilty of an offence and dealt with under Section 3 or 4 of the Probation of Offenders Act shall not suffer disqualification, if any, attached to conviction of an offence under any law, the Code does not contain parallel provision. Two statutes with such significant differences could not be intended to co-exist at the same time in the same area. Such co-existence would lead to anomalous results. Two statutes with such significant differences could not be intended to co-exist at the same time in the same area. Such co-existence would lead to anomalous results. The intention to retain the provisions of Section 360 of the Code and the provisions of the Probation of Offenders Act as applicable at the same time in a given-area cannot be gathered from the provision of Section 360 or any other provision of the Code. Therefore, by virtue of Section 8( 1) of the General Clauses Act, where the provisions of the Act have been brought into force. The provisions of Section 360 of the Code are wholly inapplicable. 12. Enforcement of Probation Act in some particular area excludes the applicability of the provisions of Sections 360 and 361 of the Code in that area. Section 3 of the Probation of Offenders Act reads as follows: "3. Power of Court to release certain offenders after admonition. When any person is found guilty of having committed an offence punishable under Section 379 or Section 380 or Section 381 or Section 404 or Section 420 of the Indian Penal Code, ( 45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law, and no previous conviction is proved against him and the Court by which the person is found guilty is of opinion that, having regard to the cir¬cumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the Court may instead of sentencing him to any pun¬ishment or releasing him on probation of good conduct under Section 4 release him after due admonition. Explanation.For the purposes of this Section, previous conviction against a person shall include any previous order made against him under this Section or Section 4." 13. Thus, this was the duty of the learned trial Court who failed in granting probation of the accused, but the Appellate Court in its wisdom granted probation to the accused. 14. Section 4 of the Probation of Offenders Act reads as follows: "4. Thus, this was the duty of the learned trial Court who failed in granting probation of the accused, but the Appellate Court in its wisdom granted probation to the accused. 14. Section 4 of the Probation of Offenders Act reads as follows: "4. Power of Court to release certain offenders on probation of good conduct.-( 1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to ap¬pear and receive sentence when called upon during such period, not exceeding three years, as the Court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that the Court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the Court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. ( 2) Before making any order under sub-Section ( 1), the Court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. ( 3) When an order under sub-section ( 1) is made, the Court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender. ( 4) The Court making a supervision order under sub-section ( 3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the Court may, having regard to the particular circumstances/consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. ( 5) The Court making a supervision order under sub-section ( 3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned." 15. Thus, I find no illegality, impropriety or irregularity in the order under revision. The revision is liable to be dismissed. 16. The revision is accordingly dismissed. 17. The revisionist shall comply with the orders of the Appellate Court within two months of passing of the order of this Court, for which Chief Judicial Magistrate concerned shall give notice to the revisionist. In case notice is served and the revisionist fails to comply with the orders of the Appellate Court, the trial Court shall ensure execution of the orders. Send copy of the judgment to C.J.M., Kanpur for compliance. Revision dismissed.