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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL REVISION APPLICATION NO.143 OF 2008
Bhushankarrao Narsingh Murti Rayadu,
Aged about 57 years, Occ: Service,
R/o Seminary Hills, Nagpur. ....... APPLICANT
...V E R S U S...
State of Maharashtra
(Thr. P.S.O. P.S. Sitabuldi, Nagpur). ....... RESPONDENT
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Shri A.M. Sudame, Advocate for Appellant.
Ms. T.H. Udeshi, APP for Respondent/State.
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CORAM: ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT : 31.10.2017 DATE OF PRONOUNCING THE JUDGMENT : 04.01.2018 1] The applicant was convicted for offence punishable
under section 354 of the Indian Penal Code ('IPC' for short) by the judgment and order dated 28.02.2006 passed by the Judicial Magistrate First Class, Court 2, Nagpur in Summary Criminal Case 1168/2002 and was sentenced to suffer rigorous imprisonment for ::: Uploaded on - 04/01/2018 ::: Downloaded on - 05/01/2018 02:08:46 ::: revn143.08.J.odt 2 one year and to payment of fine of Rs.2000/-. The applicant (hereinafter referred to as 'the accused') challenged the said judgment and order in appeal vide Criminal Appeal 54/2006 which was decided by the judgment and order impugned dated 19.04.2008 passed by the Ad-hoc District Judge-4 and Additional Sessions Judge-4, Nagpur. The learned Appellate Judge was pleased to allow the criminal appeal partly, the conviction was maintained and the sentence of rigorous imprisonment for one year was set aside and the fine enhanced from Rs.2000/- to Rs.5000/-. The accused is aggrieved by the judgment and order of the Appellate Judge to the extent the conviction is affirmed and is invoking this court revisional jurisdiction. 2] Heard A.M. Sudame, the learned counsel for the appellant and Ms. T.H. Udeshi, the learned Additional Public Prosecutor for the respondent/State.
3] Shri Sudame, the learned counsel for the accused, took me through the entire evidence in an anxiety to demonstrate that the concurrent conviction recorded by the learned Magistrate and ::: Uploaded on - 04/01/2018 ::: Downloaded on - 05/01/2018 02:08:46 ::: revn143.08.J.odt 3 the learned Sessions Judge deserve to be set aside. The appreciation of evidence by the courts below is flawed and the conclusions recorded are perverse, is the submission. 4] The scope and ambit of the revisional power under section 401 of the Code of Criminal Procedure is well settled. Suffice it to refer to the enunciation of law by the Apex Court in State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand and others reported in AIR 2004 SC 4412 paragraphs 21, 22 and 23 of which read thus:
21. In embarking upon the minutest re-examination of the whole evidence at the revisional stage, the learned Judge of the High Court was totally oblivious of the self restraint that he was required to exercise in a revision under Section 397, Cr.P.C. On behalf of the accused, reliance is placed on the decision of this Court to which one of us (Justice Sabharwal) is a party, i.e. Criminal Appeal No.523 of 1997 decided on 9-3-2004, (Ram Briskh v. Ambika Yadav). That was the case in which the High Court interfered in revision because material evidence was overlooked by the courts below.
22. The Revisional Court is empowered to exercise all the powers conferred on the Appellate Court by virtue of the provisions contained in Section 410, Cr.P.C. Section 401, Cr.P.C. is a provision enabling the High Court to exercise all powers of Appellate Court, if ::: Uploaded on - 04/01/2018 ::: Downloaded on - 05/01/2018 02:08:46 ::: revn143.08.J.odt 4 necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or Sessions Court. 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 or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceeding of such inferior Court." It is for the above purpose, if necessary, the High Court or Sessions Court can exercise all appellate powers. Section 401, Cr.P.C. conferring powers of Appellate Court on the Revisional Court is with the above limited purpose. The provisions contained in Section 395 to Section 401, Cr.P.C. read together do not indicate that the revisional power of the High Court can be exercised as a second appellate power.
23. On this aspect, it is sufficient to refer to and rely on the decision of this Court in Dulichand v. Delhi Administration, (AIR 1975 SC 1960) in which it is observed thus:-
"The High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing to re-appreciate the evidence for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned additional Sessions Judge was correct. But even so the High Court reviewed the evidence presumably for the purpose of satisfying itself that there was evidence in support of the finding of fact reached by the two subordinate courts and that the finding of fact was not unreasonable or perverse."
In view of the well recognized restraint on exercise of revisional power, which cannot be equated with a second ::: Uploaded on - 04/01/2018 ::: Downloaded on - 05/01/2018 02:08:46 ::: revn143.08.J.odt 5 appellate power, I have scrutinized the record only to satisfy the conscious of the court that the findings concurrently recorded are not perverse and that there is no flagrant miscarriage of justice. Having done so, I am satisfied that the findings recorded concurrently cannot be said to be perverse. The judgments impugned do not suffer from any serious error of law. It is not even the contention of the learned counsel for the accused that any material evidence is shut out from consideration or any inadmissible evidence is considered by the courts below. 5] The gist of the prosecution case is that the complainant Mrs. Silviya Krishnarao Naidu and the accused were working at the National Civil Defence College, Nagpur. The complainant was on leave from 11.05.2002 due to a medical ailment. The accused came to the house of the complainant on 16.05.2002 between 06:00 to 06:30 p.m. and handed over a packet to the complainant. The complainant refused to accept the packet and the accused forced the packet upon her. The packet contained two brassieres which the accused asked the complainant to try out. The complainant threw the packet on the ::: Uploaded on - 04/01/2018 ::: Downloaded on - 05/01/2018 02:08:46 ::: revn143.08.J.odt 6 face of the accused and asked him to leave her house. The accused refused to leave, closed the curtains of the windows, held the face of the complainant in his hands and embraced her. The complainant shouted which forced the accused to leave but not before telling the complainant that he would come back. The accused threw the packet in the house of the complainant and left. The husband of the complainant returned home in the evening, the complainant narrated the incident to him who advised her to report the same to her superior officer. The next day on 17.05.2002 one Dr. Anand Tatte came to see the complainant to whom the incident was narrated. Upon resuming duties on 24.05.2002, she narrated the incident to the Director Shri K.M. Nandayal, who advised her to return the packet of brassieres to the accused. The Director further told the complainant that as the incident took place in her residence he was helpless.
In view of the failure of the superior officer to take action, the complainant lodged the written complaint dated 28.05.2002 although her superiors were pressurizing the complainant to forget and forgive, which the complainant refused ::: Uploaded on - 04/01/2018 ::: Downloaded on - 05/01/2018 02:08:46 ::: revn143.08.J.odt 7 to do. A departmental enquiry was initiated and report submitted on 14.06.2002. However, since no effective action on the report was taken, the complainant lodged report at the Crime Branch, Nagpur on 24.06.2002. The report was forwarded to the Sitabuldi Police Station, Nagpur and on 26.06.2002 offence under section 354 of the Indian Penal Code was registered against the accused. The investigation culminated in the submission of the charge-sheet. The accused abjured guilt and claimed a trial. The trend and tenor of the cross-examination and the statement recorded under section 313 of the Code of Criminal Procedure would reveal that the defence was of total denial and false implication. The accused specifically took a plea that since he had taken action against the complainant for not being punctual, he was falsely implicated.
6] The prosecution examined in all six witnesses including the complainant (P.W.3) since the incident took place in the residence of P.W.3, when she was alone, obviously the most material witness, and whose testimony is held believable by both the learned Magistrate and the learned Sessions Judge, is the ::: Uploaded on - 04/01/2018 ::: Downloaded on - 05/01/2018 02:08:46 ::: revn143.08.J.odt 8 complainant herself.
7] In view of the vehement submission of the learned counsel for the accused that the findings dangerously borders on perversity, I have given due consideration to the testimony of the complainant Silviya. Having done so, I do not see any reason to disbelieve her testimony which is corroborated by the testimony of her husband (P.W.4). Au contraire, I find the testimony of the complainant Silviya implicitly reliable and confidence inspiring. She has come out unscathed in the cross-examination. Her testimony has stood the test of the cross-examination. She has deposed that the accused forcibly handed over the packet containing the brassieres and told her to wear the brassieres and expressed her love and affection for P.W.3. The accused closed the curtains and expressing displeasure at the refusal of P.W.3 Silviya to respond to his feeling and overtures, caught her face in hands and embraced her. P.W.3 Silviya threw the packet outside the house and asked the accused to leave immediately. The accused retrieved the packet and left only after throw the packet back in the house.
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The explanation of the complainant for lodging the police report only on 26.06.2002 is duly considered by both the courts below and I do not see any reason to take a different view than that taken by the courts below which have recorded a finding that the delay satisfactorily explained. P.W.3 Silviya was on medical leave when the incident occurred on 20.05.2002, when she resumed duty the Director Shri Nandayal was out of station and when he returned on 24.05.2002 the complainant narrated the incident to him. In view of the lackadaisical attitude of the said officer, Silviya lodged the written complaint on 28.05.2002, a farcical departmental enquiry was then initiated and apprehending that the enquiry proceedings may not be taken to logical culmination, she lodged the report on 26.06.2002. 8] The defence that the accused was falsely implicated in view of some differences concerning administrative issues is appropriately dealt with by the courts below and I see no perversity either in the approach or the appreciation of evidence or the conclusion reach. In the light of the discussion supra, the revision application is devoid of substance and deserves rejection. ::: Uploaded on - 04/01/2018 ::: Downloaded on - 05/01/2018 02:08:46 ::: revn143.08.J.odt 10
9] The revision application is dismissed.
JUDGE
NSN
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