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2017 DIGILAW 861 (MP)

Darshan Singh v. Yudhishthir Singh

2017-07-25

S.K.AWASTHI

body2017
ORDER 1. This criminal revision under section 397 read with section 401 of Code of Criminal Procedure (hereinafter referred to as 'CrPC') has been filed against the judgment dated 6.1.2014 passed by Xth Additional Sessions Judge, Gwalior in Criminal Appeal No.349/2013 affirming the judgment dated 30.9.2013 passed by the Judicial Magistrate First Class, Gwalior in Criminal Case No.829/2011 by which the applicant has been convicted for the offence under section 500 of IPC and sentenced till rising of the Court with fine of Rs.5,000/- with default stipulation. 2. The facts of the case in brief are that complainant /respondent No.1 herein has filed a private complaint against the applicant/accused alleging that he is retired Police Officer. He earned and got reputation in the department as well as in the society. On 24.8.2006 applicant has got the defamatory news published in the newspapers that the complainant has asked bribe for appointment of the applicant in the police department and he was shown as cheater and fraud by which the complainant felt defamed. 3. The learned Judicial Magistrate has taken cognizance against the applicant for the commission of offence under section 500 of IPC and issued notice to the applicant. After appearance of the applicant, the trial Court has initiated the proceedings in the case and after giving opportunity of hearing to both the parties the applicant was found guilty for the offence and he was convicted and sentenced as stated herein above. 4. An appeal was preferred by the present applicant against the judgment dated 30.9.2013 which was dismissed by the appellate Court vide impugned judgment dated 6.1.2014. Hence, this revision petition. 5. Learned counsel for the applicant argued at length and submitted that the applicant has been falsely implicated and thus wrongly convicted while he has not committed any offence. He further submits that the Courts below committed error in not properly appreciating the evidence and proposition of law regarding the defamation, therefore, the impugned orders are liable to be set aside. 6. Per contra, learned counsel for the respondent No.1 submitted that after due appreciation of evidence and proposition of law, the Courts below have found the applicant guilty of offence, therefore, no interference is called for in the concurrent findings recorded by the Courts below. 7. 6. Per contra, learned counsel for the respondent No.1 submitted that after due appreciation of evidence and proposition of law, the Courts below have found the applicant guilty of offence, therefore, no interference is called for in the concurrent findings recorded by the Courts below. 7. After hearing learned counsel for the parties and perusal of the record, it is evident that in the present matter, the applicant herein/accused has been convicted under section 500 of IPC by the Judicial Magistrate First Class, Gwalior vide judgment dated 28.1.2013 passed in Criminal Case No. 829/2011 and instead of passing the sentence, he was extended the benefit of provisions of section 4 of the Probation of Offenders Act. This order was assailed in Criminal Appeal No.72/2013 before Xth Additional Sessions Judge, Gwalior, who remanded the matter back to the trial Court for hearing the parties on the point of sentence. Being aggrieved by the order of Sessions Court, the applicant preferred Criminal Revision No.257/2013 before this Court which was disposed of vide order dated 2.7.2013, in which direction was issued to the trial Court that after calling a report from the Probation Officer and after giving opportunity of hearing to both the parties the trial Court shall pass appropriate order in the matter in accordance with law. 8. Simultaneously, the applicant/accused has filed a Criminal Appeal No.165/2013 against the judgment dated 28.1.2013 passed by the trial Court and the same has been dismissed by the appellate Court on 22.5.2013 due to barred by limitation and no sufficient explanation of delay was given by the appellant in filing the appeal. Aggrieved by the judgment, the accused/ applicant has filed a Criminal Revision No.421/2013 before this Court and the same has been disposed of on 27.5.2013 with the short direction that :- “The applicant shall be at liberty to raise all the objections, which shall be decided by the learned Court below on merits in accordance with law without getting influence by the order passed by this Court.” 9. Learned counsel for the applicant submitted that in the light of the above direction given by this Court in Criminal Revision No.421/2013 which was disposed of vide order dated 27.5.2013, an application for seeking permission to make the objections, has been filed before the trial Court but it was not decided by the learned Judicial Magistrate First Class and the same is still pending till today. Although, from perusal of the proceedings of the trial Court, it appears that all the objections raised by the applicant has been decided by the trial Court vide order dated 24.6.2013 and 7.9.2013. Therefore, it is clear that the trial Court has given sufficient opportunity to the applicant to raise the objection in compliance of the order dated 27.5.2013 passed in Criminal Revision No. 257/2013. So, it cannot be said that the trial Court has passed the judgment without appreciating the evidence and giving opportunity to the applicant for raising his objection. 10. In the case of Madhudas and others v. State of Rajasthan, [ 1994 CrLJ 3595 ], it has been held that :- 15. It is well to remember that although the power of this Court under section 397/401, CrPC is very wide, yet normally and ordinarily this power is to be exercised to prevent miscarriage of justice only in those cases where the judicial conscience of a criminal Court is pricking. 16. Following are the instances where this Court may interfere with the findings recorded by the subordinate Courts :- (a) Where the allegations are patently absured; (b) Where the allegations are inherently improbable; (c) Where from the allegations and proof adduced before the subordinate Courts, absolutely no case is made out against the accused revisionists; (d) Where the Magistrate and subordinate appellate Court exercised their discretion arbitrarily by relying on irrelevant and inadmissible evidence; and (e) Where the complaint against the accused revisionists suffers from fundamental legal defects i.e. want of sanction etc. 17. It is true that the aforementioned norms are illustrative and not exhaustive. 18. In the instance case, for the sake of interference in the concurrent finding of guilt recorded by both the Courts below, the revisionists have to satisfy me that out of the five norms enumerated above any one of them is attracted in their case. 17. It is true that the aforementioned norms are illustrative and not exhaustive. 18. In the instance case, for the sake of interference in the concurrent finding of guilt recorded by both the Courts below, the revisionists have to satisfy me that out of the five norms enumerated above any one of them is attracted in their case. If the revisionists fails to satisfy that any of the norms enumerated above is not attracted in the present case, then this Court will refrain from interfering with the concurrent finding of guilt recorded by both the Courts below. 19. In the present case, none of the norms formulated by me in the preceding paragraph is attracted. Therefore, in my considered opinion, the finding of guilt recorded by both the Courts below against the accused revisionists does not require indulgence in the exercise of revisional jurisdiction conferred upon this Court under section 397/401, CrPC. 11. From perusal of the record, it is evident that the commission of alleged offence is established on the basis of the statements of complainant/respondent Yudhishthir Singh (PW1), Dr. B. Bohare (PW2), Gajendra Singh (PW3) and M.L.Deody (PW4). Hence on the basis of the material available on record, I do not find that any of the norms enumerated in the case of Madhudas and Others (supra), is attracted in the present case, therefore the concurrent finding of guilt recorded by the Courts below against the applicant/ accused does not require indulgence in exercise of revisional jurisdiction conferred upon this Court under section 397/401 of the CrPC. 12. In this view of the matter, this Court is of the considered opinion that the Courts below have not committed any illegality in convicting the applicant for the offence under section 500 IPC. 13. So far as the sentence is concerned, the trial Court called a report of Probation Officer which indicated the criminal record of the applicant, therefore, the trial Court has rightly held that the applicant is not entitled for the benefit of probation. Looking to the facts and circumstances of the case, this Court has not found any perversity and therefore, no interference is warranted on the point of sentence. 14. With the aforesaid discussions, the present revision is dismissed.