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2023 DIGILAW 1188 (ALL)

Arun Kumar Singhal v. Tarawati

2023-04-28

SHREE PRAKASH SINGH

body2023
JUDGMENT : (Shree Prakash Singh, J.) 1. On 04.04.2023, this Court observed that if, the counsel for the opposite party will not remain present on the next date, the Court will proceed in absence of the opposite party. 2. Case called out. None present on behalf of the opposite party. 3. This Court is proceeding to hear the matter in the aforesaid circumstances. 4. Heard Sri Sanjay Kumar Srivastava, learned counsel for the revisionist, Sri Anirudh Kumar Singh, learned A.G.A. for the State and perused the material placed on record. 5. By means of the instant revision, the prayer has been made to allow the revision with cost after summoning the lower court record and set aside the impugned judgment and order dated 26.09.2015 passed by the trial court i.e. Principal Judge, Family Court, Ambedkar Nagar in Case no. 272 of 2013 Smt Tarawati Vs Dr Arun Kumar Singhal. 6. Learned counsel appearing for the revisionist submits that the opposite party filed an application under section 125 of Cr.P.C. on 18.01.2011, against the revisionist before the Judicial Magistrate, Ambedkar Nagar while alleging herself to be the widow of late Parshuram son of Ram Naresh, resident of Village Bela Persa, PS- Baskhari, Pargana Birhal, District-Ambedkar Nagar and also having a son with the wedlock of her and late Parshuram. He submits that the opposite party has shown herself to be married with the present revisionist on 17.07.2007, at her village Baskhari and this fact is also evident from the statement of the opposite party including the cross examination that she allegedly performed marriage with the present revisionist on 17.07.2007. 7. He added that the date of death of the husband of opposite party has been shown as on 29.09.2006, which is the wrong date given by the opposite party as, the actual date of death of late Parshuram is 29.09.2009 which transpires from Parivar Register which is annexed as Annexure No. 1 with the supplementary affidavit dated 04.04.2023. 8. Further submission is that since the date of death of the husband of opposite party is 29.09.2009, therefore, the marriage with the present revisionist would be abinitio void and if, once it becomes void, the application under section 125 is not maintainable on behest of the opposite party. 8. Further submission is that since the date of death of the husband of opposite party is 29.09.2009, therefore, the marriage with the present revisionist would be abinitio void and if, once it becomes void, the application under section 125 is not maintainable on behest of the opposite party. He added that the additional evidence has been supplied through the supplementary affidavit before this Court wherein the copy of the death certificate has also been appended. He submits that taking the additional evidence, either this Court decide the matter or the same may be remitted back to the trial court to decide a fresh. 9. Adding his arguments he submits that in fact due to recklessness on the part of the counsel for the revisiionist, the death certificate could not be produced before the trial court whereas, the same was in existence and non-submissions of the death certificate has hampered the fate of the case and the revisionist has been put into trouble. 10. Further submitted that the additional evidence in revision can very well be taken if the court is of the satisfaction that the same can change the nature of the order. In support of his contention, he has placed reliance on the provision of section 401(1) of Cr.P.C. 11. Section 401(1) of Cr.P.C. is quoted here in under:- (1) In the case of any proceeding the record of which has been called for by itself or Which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392. 12. Next submission is that likewise powers under section 401 of Cr.P.C., the analogous power has been given under section 399 (1) of Cr.P.C. thus, the power for taking additional evidence is also vest with the trial court. 13. In support of his contention, he has also placed reliance on a judgment reported in MANU/UP/0308/1990 Vinod Kumar v. Mohrawati and has referred the paragraph 4 of the aforesaid judgment. 14. Paragraph 4 of the judgment is quoted herein under:- 4. Section 399(1) of the Code of Criminal Procedure runs as follows: "399. 13. In support of his contention, he has also placed reliance on a judgment reported in MANU/UP/0308/1990 Vinod Kumar v. Mohrawati and has referred the paragraph 4 of the aforesaid judgment. 14. Paragraph 4 of the judgment is quoted herein under:- 4. Section 399(1) of the Code of Criminal Procedure runs as follows: "399. Sessions Judge's powers of revision (1) In the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under Sub-section (1) of Section 401. (2) and (3)........................" This section deals with the power of the Sessions Judge in revision and clearly provides that powers of Sessions Court in revision may be the same as High Court and the Sessions Court can exercise the same powers as the High Court while disposing of the revision. Section 401(1) Cr. P.C. defines the revisional powers of High Court and it runs as under:-- "401. High Court's powers of revision – (1) In the case of any procee-Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392. (2) to (5)..........................." This section provides that High Court may exercise any power conferred on a court of appeal by Sections 386, 389, 390 and 391, Cr. P.C. Section 391, Cr. P.C. provides that the appellate court may take further evidence if the appellate court thinks that additional evidence is necessary for the proper adjudication of the case. The appellate court further should record its reasons before permitting any party to adduce additional evidence. From the perusal of the above mentioned provisions of the Code of Criminal Procedure it is settled that the Court of Session has similar power as of High Court in revision and as High Court is authorised to take additional evidence in revision, therefore, the Sessions Court has also jurisdiction to take additional evidence in a revision. From the perusal of the above mentioned provisions of the Code of Criminal Procedure it is settled that the Court of Session has similar power as of High Court in revision and as High Court is authorised to take additional evidence in revision, therefore, the Sessions Court has also jurisdiction to take additional evidence in a revision. In the case of Darshan Lal v. Indra Kumar Mehta, reported in 1980 All Cri C 146, this Court took a view:-- "The Sessions Judge could examine that question in view of the powers conferred on him by Sub-section (1) of Section 397 of the Code of Criminal Procedure. Further, under Sub-section (1) of Section 399 a Sessions Judge, while dealing with a revision, can exercise all or any of the powers which may be exercised by the High Court under Sub-section (1) of Section 401. By this it would follow that if the High Court, while dealing with a revision can enhance the sentence, the Sessions Judge can proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392. (2) to (5)..........................." This section provides that High Court may exercise any power conferred on a court of appeal by Sections 386, 389, 390 and 391, Cr. P.C. Section 391, Cr. P.C. provides that the appellate court may take further evidence if the appellate court thinks that additional evidence is necessary for the proper adjudication of the case. The appellate court further should record its reasons before permitting any party to adduce additional evidence. From the perusal of the above mentioned provisions of the Code of Criminal Procedure it is settled that the Court of Session has similar power as of High Court in revision and as High Court is authorised to take additional evidence in revision, therefore, the Sessions Court has also jurisdiction to take additional evidence in a revision. From the perusal of the above mentioned provisions of the Code of Criminal Procedure it is settled that the Court of Session has similar power as of High Court in revision and as High Court is authorised to take additional evidence in revision, therefore, the Sessions Court has also jurisdiction to take additional evidence in a revision. In the case of Darshan Lal v. Indra Kumar Mehta, reported in 1980 All Cri C 146, this Court took a view:-- "The Sessions Judge could examine that question in view of the powers conferred on him by Sub-section (1) of Section 397 of the Code of Criminal Procedure. Further, under Sub-section (1) of Section 399 a Sessions Judge, while dealing with a revision, can exercise all or any of the powers which may be exercised by the High Court under Sub-section (1) of Section 401. By this it would follow that if the High Court, while dealing with a revision can enhance the sentence, the Sessions Judge can also do it. According to Sub-section (1) of Section 401 the High Court, while dealing with a revision, can exercise any of the powers conferred on an appellate court, by Section 386, of the Code. According to Clause (c) of Section 386 of the Code, the appellate court can, in an appeal for enhancement of sentence, alter the nature or the extent of the sentence so as to enhance or reduce the same. In view of this provision contained in Section 386, Cr. P.C. it should be held that High Court, while dealing with a revision, can enhance the sentence. "Since the High Court can enhance the sentence while dealing with revision, the Sessions Judge can also do so." No doubt in the case of Darshan Lal (supra) the question involved was whether Sessions Court has power to enhance the sentence or not but the Bench considered the provisions of Sections 397 and 401, Cr. P.C. and thereafter held that in revision, Sessions Court can exercise any of the powers which may be exercised by the High Court under Sub-section (1) of Section 401, Cr. P.C. In view of the decision of Darshan Lal by a Bench of this Court in my opinion the case of Smt. Zaitoon v. State of U.P. 1987 All WC 640 is not a-good law. P.C. In view of the decision of Darshan Lal by a Bench of this Court in my opinion the case of Smt. Zaitoon v. State of U.P. 1987 All WC 640 is not a-good law. In another case of Vedpal Singh v. State reported in 1982 All Cri C 268 : (1982 Cri LJ Note 119) a single Judge of this Court took a view that the Sessions Judge can exercise power analogous to that of High Court while exercising revisional jurisdiction. The Sessions Judge could, therefore, examine the question of taking of additional evidence in view of the powers conferred on him by Sub-section (1) of Section 397, Cr. P.C. because the powers of Sessions Judge are analogous to those of the High Court defined under Sub-section (1) of Section 401, Cr. P.C. In view of these facts I am of the opinion that the Sessions Judge has jurisdiction to take additional evidence in revision. In the instant case the Sessions Judge while disposing of the| application took the view that he has no jurisdiction to entertain the application for permission to adduce additional evidence in revision and, therefore, in my opinion, the order dated 7-10-1989 passed on the application moved by the applicant for permission to adduce additional evidence is not a correct I order and it is, therefore, liable to be set aside". 15. Relying on the aforesaid ratio, he added that the coordinate Bench of this Court has held that the Session Judge can take the additional evidence in view of the powers conferred on him under sub-section (1) of section 397 of Cr.P.C. as the power under sub-section (1) of section 401 of Cr.P.C. is analogous. 16. He has further placed reliance on judgment reported in MANU/UP/3033/2014 and has also placed reliance on paragraphs six and seven of the aforesaid judgment and the same is quoted herein under:- "6. This Court in the case of Vinod Kumar Versus Mohrawai reported in 1990 Criminal Law Journal 2068 (Lucknow Bench) has held that Court of Sessions has similar power as of High Court in revision and as High Court is authorised to take additional evidence in revision, therefore, the Sessions Court has also jurisdiction to take additional evidence. 7. This Court in the case of Vinod Kumar Versus Mohrawai reported in 1990 Criminal Law Journal 2068 (Lucknow Bench) has held that Court of Sessions has similar power as of High Court in revision and as High Court is authorised to take additional evidence in revision, therefore, the Sessions Court has also jurisdiction to take additional evidence. 7. Since powers conferred to the Sessions Judge are analogous to the powers of the High Court and there is provision under Sections 391 and 401 Cr.P.C. that additional evidence in criminal revision may be taken, therefore, after analysing the impugned order with the facts of the present case and also the case law cited herein- above, this Court without going to this fact that applicant has not availed any other forum, this Court finds it to be a fit case for exercise of its extra ordinary powers under Section 482 Cr.P.C. Since impugned order is in clear violation of the legal provision and if it sustained, there would be a miscarriage of justice." 17. Placing reliance on the aforesaid judgments, he added that the case of the present revisionist is squarely covered with ratio of the judgment aforesaid and since the date of death of the husband of the opposite party has wrongly been intimated to the revisional court and taking the same as true, the judgment and order has been passed but, other wise the date of death of the husband is 29.09.2009 and if that is taken to be true, the marriage with the present revisionist would be void and thus, the application under section 125 of Cr.P.C. would not be maintainable at the first hand. He submits that this fact must change the nature of the judgment and therefore, the additional evidence is required to be taken and to be considered and the matter may be decided afresh. He thus, submits that the order impugned passed by the trial court i.e. Principal Judge, Family Court, Ambedkar Nagar, dated 26.09.2015, in Case no. 272 of 2013 Smt Tarawat Vs Dr Arun Kumar Singhal may be set aside. 18. Learned A.G.A appearing for the State has opposed this case on the basis that the factual disputes are involved in this matter but, so far as the legal issue is concerned, he has no objection to the contention of learned counsel for the revisionist. 19. 272 of 2013 Smt Tarawat Vs Dr Arun Kumar Singhal may be set aside. 18. Learned A.G.A appearing for the State has opposed this case on the basis that the factual disputes are involved in this matter but, so far as the legal issue is concerned, he has no objection to the contention of learned counsel for the revisionist. 19. Having heard learned counsels for the parties and after perusal of material placed on record, it is evident that the husband of the opposite party, died on 29.09.2006. The learned counsel for the revisionist filed a supplementary affidavit thereby, appending the death certificate dated 29.09.2009 of the husband of opposite party, namely Parshuram, which clearly shows that the husband of the opposite party died on 29.09.2009 and admittedly this fact could not be placed before the trial court due to inadvertence of the counsel for the revisionist. The law is very clear on this point that the litigant would not be left to be suffered for inadvertence, mistake or ignorance on the part of his counsel. If it is found true that the date of death of the husband of opposite party no. 2 is acutually 29.09.2009 and not 29.09.2006 then, certainly there must be change in the nature of judgment and order which has been earlier passed by the trial court. 20. When this court examines the powers of the sessions judge in revision as envisaged under section 399 (1) of Cr.P.C., it is abundantly clear that sessions judge may exercise all or any of the powers which may be exercised by the High Court under sub-section (1) of section 401 of Cr.P.C. Undoubtedly, the High Court has ample power under section 401 (1) read with section 397 of Cr.P.C. to call for additional evidence to look into the correctnesss, legality or propriety of any finding, sentence or order recorded or passed. 21. In view of the aforesaid submissions and discussions, this Court is of the firm opinion that the power envisaged under section 399 (1) of Cr.P.C. is analogous to the provision of section 401 (1) of Cr.P.C. and therefore, the trial court can also take an additional evidence for examining the regularity of any proceedings, propriety of findings, legality or order passed by the subortinate courts. This controversy has also been settled in case of Vinod Kumar Sharma Versus Mohrawati and in case of Bhagwan Swaroop, which also covers the case of the present revisionist. 22. Resultantly, the impugned order dated 26.09.2015, is hereby set aside. 23. Matter is transmitted back to the court concerned for passing a fresh order after taking additional evidence, which will be submitted by the revisionist and after affording opportunity to the concerned parties in accordance with law. 24. The revisionist is directed to submit this order before the trial court within a period of forty five days form the date of this order and the trial court shall conclude the proceeding, in expedition thereafter. 25. All the issues are open before the trial court to decide afresh. 26. With the aforesaid observations, the instant revision is hereby allowed.