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2014 DIGILAW 2775 (ALL)

M. K. Dubey v. State of U. P.

2014-09-08

RANJANA PANDYA

body2014
JUDGMENT Mrs. Ranjana Pandya, J. This revision has been preferred against the judgment and order dated passed by the IVth Additional District & Sessions Judge, Varanasi in Criminal Appeal No. 150 of 1987 dismissing the appeal and modifying the judgment and order dated 25.06.1987 passed by the Ist Additional Munsif Magistrate, Varanasi convicting and sentencing the revisionist to pay a fine of Rs. 300/- under section 323 IPC to the extent that the revisionist were enlarged on probation of good conduct for a period of six months on furnishing two sureties of Rs. 1000/- along with a personal bond in the like amount to keep peace and be of a good behaviour. 2. Brief facts of the case are that there was an old enmity between the complainant Mahendra Kumar and accused Manglesh Kumar Dube and Akhilesh Kumar Dube. The complainant and both the accused are resident of Bahadurpur, PS Ram Nagar, district Varanasi. The complainant runs a hotel at Parao at G.T. road. It has been alleged that on 27.04.1983 at about 9.30 a.m., the complainant was passing near Tulsa Dharamkanta near his hotel, suddenly the accused armed with lathi and danda came there and started abusing the complainant. When the complainant asked them not to do, they assaulted him by lathi and danda. Thereafter the complainant lodged an FIR on 10.35 a.m. on the same day at police station Ram Nagar. The complainant was medically examined in lovett Hospital of Ram Nagar at 12.30 p.m. on the same day. After investigation, the Investigating Officer submitted charge sheet against the accused person. 3. Charges were framed against the revisionist, who pleaded not guilty and claimed to be tried. 4. The prosecution examined Mahendra Kumar as PW-1, Ashok Kumar Pandey as PW-2, Abdul Aziz as PW-3, Constable Tarkeshwar Ram as PW-4 and B.N. Pandey as PW-5. 5. The accused person denied of having committed the offence in the statement recorded under section 313 Cr.P.C. 6. The learned Magistrate after perusing all the evidence found the accused guilty and convicted and sentenced him to a fine of Rs. 300/- under section 323 IPC. Feeling aggrieved the accused-revisionist preferred Criminal Appeal No. 150 of 1987. The appellate court after hearing the accused maintained the conviction but modified the sentence from fine of Rs. 300/- to probation under section 4 of the Probation of Offender's Act. 7. 300/- under section 323 IPC. Feeling aggrieved the accused-revisionist preferred Criminal Appeal No. 150 of 1987. The appellate court after hearing the accused maintained the conviction but modified the sentence from fine of Rs. 300/- to probation under section 4 of the Probation of Offender's Act. 7. Feeling aggrieved, the revisionist has preferred the present revisionist. 8. I have heard learned counsel for the revisionist and learned counsel for the complainant and learned AGA for the State and perused the material on record. 9. While exercising the revisional jurisdiction, the High Court has to examine whether there is any illegality, impropriety or irregularity in the order under revision. 10. As a broad proposition, the interference of revisional court may be justified in cases (i) where the decision is grossly erroneous (ii) where there is no compliance with the provision of law (iii) where the finding of fact affecting the decision is not based on evidence on record (iv) where the material evidence of parties has not been considered (v) where the court below has misread or mis-appreciated the evidence on record (vi) where the judicial discretion has been exercised arbitrarily or perversely. 11. The arguments advanced on behalf of the revisionist are that there is no ground for conviction of the accused revisionist. 12. It has further been argued that a perusal of the evidence shows that the evidence was shaky and conviction could not be based on this evidence. 13. In exercise of revisional jurisdiction the court may not exercise jurisdiction to reassess the evidence and reappraisal of evidence is not permissible within the revisional jurisdiction. Hon'ble the Apex Court in A.I.R. 1999 Supreme Court 981 in the case of State of Kerela Vs. Putthumana Illath Jathavedan Namboodiri has held that "the High Court while hearing revision does not work as an appellate court and will not re-appreciate the evidence, unless some glaring mistake is pointed out to show that injustice has been done". 14. In A.I.R. 2002 Supreme Court 2229 in the case of Jagannath Chaudhary Vs. Ramayan Singh, Hon'ble Apex Court 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 on point of law resulting in miscarriage of justice". Similarly In A.I.R. 2002 Supreme Court 107 in the case of Munni Devi Vs. Ramayan Singh, Hon'ble Apex Court 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 on point of law resulting in miscarriage of justice". Similarly In A.I.R. 2002 Supreme Court 107 in the case of Munni Devi Vs. State of Rajasthan and others it was held by Hon'ble Apex Court that "while exercising the revisional power the High Court has no authority to re-appreciate the evidence in the manner as the trial court and appellate courts are required to do". 15. In another case A.I.R. 1993 Supreme Court 1126 in the case of State of Karnataka Vs. Appa Balu Ingale and others it has been held by the Hon'ble Apex Court 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 unless there is any perversity." 16. Considering the limited scope of revisional jurisdiction, it is apparent that the evidence recorded by trial court and appreciated by the trial court and reappreciated by the appellate court is not required to be reappreciated by the appellate court again. The appellate court has given findings after detailed discussions and has found no substance in the arguments that conviction is bad in the eyes of law. 17. Section 360 of the Code of Criminal Procedure reads as under: (360). Order to release on probation of good conduct or after admonition. The appellate court has given findings after detailed discussions and has found no substance in the arguments that conviction is bad in the eyes of law. 17. Section 360 of the Code of Criminal Procedure reads as under: (360). Order to release on probation of good conduct or after admonition. (1) When any person not under twenty- one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty- one years of age or any woman is- convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, 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 appear 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 where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by sub- section (2). (2) Where proceedings are submitted to a Magistrate of the first class as provided by sub- section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken. (3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code (45 of 1860 ), punishable with not more than two years' imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition. (4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision. (5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law: Provided that the High Court or Court of Session shall not under this sub- section inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted. (6) The provisions of sections 121, 124 and 373 shall, so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section. (7) The Court, before directing the release of an offender under sub- section (1), shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions. (8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension. (8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension. (9) An offender, when apprehended on any such warrant, shall be brought forthwith before the Court issuing the warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and such Court may, after hearing the case, pass sentence. (10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958 (20 of 1958 ), or the Children Act, 1960 (60 of 1960 ), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders. 18. Section 361 of Code of Criminal Procedure lays down that the Court should record special reasons in certain cases, which reads as under: (361) Special reasons to be recorded in certain cases. Where in any case the Court could have dealt with,- (a) an accused person under section 360 or under the provisions of the Probation of Offenders Act, 1958 (20 of 1958 ), or (b) a youthful offender under the Children Act, 1960 (60 of 1960 ), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgment the special reasons for not having done so. 19. Thus, it was mandatory upon the trial court to have specified reasons why the trial court was not willing to grant probation under section 4 of the Probation of Offender's Act or under section 360 Cr.P.C. to the accused, which the learned trail court failed to do. 20. The learned appellate court in its wisdom granted the benefit of section 4 of the Probation of Offender's Act to the accused-revisionist. 21. There is no illegality, irregularity or impropriety in the judgement. Hence, revision is liable to be dismissed. 22. Revision is dismissed. 23. Let certified copy of Judgment be sent to the court concerned for compliance of the order.