Karm Raj Dubey vs The State Of U.P Thru Principal ...
2013 Latest Caselaw 6367 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 14
 

 
Case :- U/S 482/378/407 No. - 4823 of 2013
 
Applicant :- Karm Raj Dubey
 
Opposite Party :- The State Of U.P Thru Principal Secy., Home Lucknow And Anr.
 
Counsel for Applicant :- Karm Raj Dubey(In-Person)
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Saeed-Uz-Zaman Siddiqi,J.

By means of this petition, the petitioner has prayed for quashing of the order dated 13.08.2013 passed by the Learned Sessions Judge, Faizabad in Criminal Revision No. 265 of 2011, by which the revision has been dismissed as not pressed.

I have heard learned counsel for the petitioner as well Learned AGA.

Brief facts of the case are that the petitioner and opposite party no. 2 are closely related with each other and a large number of civil disputes are pending between them before Civil Courts.  Opposite party no. 2 initiated a criminal proceeding against the petitioner and his two sons and another person.  There was a cross-case for which FIR No. 235 of 2011 was also lodged at P.S.- Kotwali Nagar.  Writ petition no. 6426 (DB) of 2011 was also filed which was dismissed vide order dated 03.05.2011.  The learned Judicial Magistrate, Faizabad passed order on 27.08.2011, which was challenged through the revision, which was numbered as Criminal Revision No. 265 of 2011.  The copy of order dated 13.08.2013 shows that an application was moved by the revisionist that he wishes to withdraw the revision as not pressed, which was not opposed by the opposite party.  The learned Sessions Judge allowed the application paper No. 31-A and criminal revision was dismissed as not pressed, which has been assailed before this Court under Section 482 Cr.P.C.  The learned Sessions Judge has not entered into the merits of the revision nor has passed any order relating to the merits of the case. 

The settled legal position is that when a criminal revision is admitted it cannot be dismissed in default or as not pressed or otherwise it has to be decided  on merits, in a legal manner, and, as such, the impugned order passed by learned Sessions Judge is no order in the eyes of law.

In the case of Madan Lal Kapoor vs. Rajiv Thapar & Ors. [(2007) 7 SCC 623], Hon'ble the Apex Court has held, which is as under:-

"The matter relates to administration of criminal justice.  As held by this Court, a criminal matter cannot be dismissed for default and it must be decided on merits.  Only on that ground the appeal deserves to be allowed."

Due to this legal requirement, there is no need to issue notice to opposite party no. 2.

It may be mentioned here that the judicial system cannot be taken to ransom by having resort to grounds beyond the purview of law.  The courts are enjoined upon to perform their duties with the object of strengthening the confidence of the common man in the institution entrusted with the administration of justice.  Any order, which weakens the system and shaken the faith  of the common man in the justice dispensation system has to be discouraged.

While holding this, this court relies  upon the law laid down by Hon'ble the Apex Court in the case of Zahira Habibulla H.Sheikh v. State of Gujarat [(2004) 4 SCC 158], in which it was held as under :-

"Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice-often referred to as the duty to vindicate and uphold the 'majesty of the law'.  Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it."

Before concluding, I may hold that in a democratic set-up, intrinsic and embedded faith in the adjudicatory system is of seminal and pivotal concern.  It is the faith and faith alone that keeps the system alive.  It provides oxygen constantly.  Fragmentation of faith has the effect-potentiality to bring in a state of cataclysm where justice may become a casualty.  A litigant expects a reasoned verdict from a temperate Judge but does not intent to and rightly so, to guillotine much of time at the altar of reasons.  Timely delivery of justice keeps the faith ingrained and establishes the sustained stability.  Access to speedy justice is regarded as a human right which is deeply rooted in the foundational concept of democracy and such a right is not only the creation of law but also a natural right.  This right can be fully ripened by the requisite commitment of all concerned with the system.  It cannot be regarded as a facet of Utopianism because such a thought is likely to make the right a mirage losing the centrality of purpose.

In an earlier decision, in the case of Babu Singh v. State of U.P. [(1978) 1 SCC 579], Hon'ble Krishna Iyer, J had stated thus:-

"Our justice system, even in grave cases, suffers from slow motion syndrome which is lethal to 'fair trial', whatever the ultimate decision.  Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceedings."

The same proposition is applicable to criminal appeal as held by Hon'ble the Apex Court in the case of Surya Baksh Singh vs. State of Uttar Pradesh passed in Criminal Appeal No. 1680 of 2013 [Arising out of S.L.P. (Cri.) No. 9816 of 2009).

This legal proposition is constantly been followed by all the Courts right from its inception in pre-independence era.

The legislature has cast an obligation on the Appellate Court to decide an appeal on its merits only in the case of Death Reference, regardless of whether or not an appeal has been preferred by the convict.

A three Judge Bench in Kishan Singh vs. State of U.P. [1992] Supp. 2 SCR 305: 1993 (3) SCALE 312: (1996) 9 SCC 372 decided on November 2, 1992.  The Bench overruled the observations in the dismissal order passed in Ram Naresh Yadav v. State of Bihar [AIR 1987 SC 1500] and approved Shyam Deo Pandey; it also adverted to similar opinions expressed in Emperor v. Balumal Hotchand AIR 1938 Sind 171.  It noted the disparate language in Section 384 of the Cr.P.C. and Order 41 Rule 17 of the CPC before quoting that it is the duty of the Appellate Court to consider the appeal as well as the judgment under challenge on its merits.

In view of these authorities, it appears that the concerned Revisional Court has adopted obviously less tedious approach in dismissing the revision only because the application was moved that the revision may be dismissed as not pressed.

In either case, a criminal revision or a criminal appeal has to be disposed of by the Revisional Court/Appellate Court on merits and not otherwise.  Neither it may be dismissed in default nor it can be dismissed as the revisionist/appellant did not wish to proceed with the revision/appeal.

In the case of Bani Singh vs. State of U.P. [(1996) 4 SCC 720], a three Judge Bench of this Court held that a criminal appeal should not be dismissed in defaut but should be decided on merits.  It despite notice neither the appellant nor his counsel is present, the court should decide the appeal on merits. 

In view of above, the petition is allowed and the order dated 13.08.2013 passed by the Learned Sessions Judge, Faizabad is hereby quashed.

The Learned Sessions Judge, Faizabad is directed to decide the criminal revision in accordance with law after affording opportunity of being heard to the parties.

Order Date :- 8.10.2013

Nitesh