Durga & 4 Others vs State Of U.P. & Another
2016 Latest Caselaw 5887 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 23
 

 
Case :- CRIMINAL REVISION No. - 3123 of 2013
 
Revisionist :- Durga & 4 Others
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Revisionist :- Deepak Kumar Pandey,Rajul Bhargava
 
Counsel for Opposite Party :- Govt. Advocate, Sandeep Kumar Singh
 

 
Hon'ble Prabhat Chandra Tripathi,J.

This criminal revision has been preferred against the impugned order dated 21.10.2013 passed by the learned Additional Chief Judicial Magistrate, Court No.4, District- Mathura in Case No. 1117 of 2012 (State vs. Durga and others) arising out of Case Crime No. 417 of 2011, under Sections 498, 504, 506, 147, 120-B and 342 I.P.C., Police Station- Highway, District- Mathura, whereby the application under Section 323 Cr.P.C. moved by the opposite party no.2 has been allowed and revisionists have been summoned under Sections 376, 120-B, 504, 506, 342 I.P.C. to face the trial.

Learned counsel for the revisionists has relied upon a judgment passed by this Court in Prem Das vs. State of U.P. & another decided on 21 September, 2012 in Criminal Revision No. 2066 of 2010.

Learned counsel for the revisionists has argued as follows:-

(i). The alleged victim PW-2, prosecutrix Smt. XYZ w/o Surya Dev has never stated about the commission of rape upon her prior to her deposition before the Magistrate on date 12.4.2013 in the trial.

(ii). The prosecutrix, Smt. XYZ has never stated about the commission of rape upon her in her statement recorded under Section 161 Cr.P.C. by the Investigating Officer.

(iii). This alleged incident of commission of rape upon Smt. XYZ by the accused persons has never been disclosed even by her husband in his application dated 5th May, 2011 preferred under Section 156(3) Cr.P.C.

(iv). The prosecutrix, Smt. XYZ has abruptly levelled charges of commission of rape upon her by the accused persons without mentioning the date, time and place in her deposition before the learned Magistrate at the very first time.

(v). Learned Magistrate has erroneously analysed the definition of the offence under Section 498 I.P.C.

Sri Awadh Bihari Pandey, Advocate, holding brief of Sri Sandeep Kumar Singh, learned counsel for the opposite party no.2 and Ms. Anita Srivastava, learned A.G.A. have opposed the arguments advanced by the leaned counsel for the revisionist. They have argued as follows:-

(i) PW-2, prosecutrix Smt. XYZ has deposed on dated 12.4.2013 in her examination-in-chief that the rape was committed upon her by all the five accused persons.

(ii) PW-2, prosecutrix Smt. XYZ, in her cross-examination has deposed that she has stated about the incident of rape to 'Daroga Ji' when he visited the village. She has also deposed before the court of the learned Magistrate that she has disclosed about the incident of rape to her husband. Further, she has also deposed that she is discussing about the incident of rape at the first time in the court.

Heard Sri Rajul Bhargava, learned Senior counsel, learned counsel for the revisionists as well as Sri Awadh Bihari Pandey, Advocate, holding brief of Sri Sandeep Kumar Singh, learned counsel for the opposite party no.2 and Ms. Anita Srivastava, learned A.G.A. for the State and perused the record.

Section 323 of Code of Criminal Procedure, 1973 is quoted verbatim as follows:-

"323. Procedure when, after commencement of inquiry or trial, Magistrate finds case should be committed.? If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained  (and thereupon the provisions of Chapter XVIII shall apply to the commitment so made) added by Cr.P.C. (Amendment) Act, 1978, S.26"

Section 397 of Code of Criminal Procedure, 1973 is quoted verbatim as follows:-

"397. Calling for records to exercise of powers of revision.?(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction 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 proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation.?All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 398.

(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(3) If any application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."

The revisional jurisdiction does not postulate re-appreciation of evidence, but that should be appreciated in the light of the limitation on the right to go in appeal, Islamuddin v. State, 1975 Cri LJ 841, 842 (Del HC). G. Vasudevan v. K.M. Malabari, 1978 Mad LJ (Cri) 617; Bundoo v. Smt. Mahrul Nisa, 1978 All LJ 1002 (All HC).

A bare reading of Section 323 Cr.P.C., 1973 reveals that the trial should be before the court of Magistrate and order under this Section may be passed by him at any stage of proceedings before signing the judgment or in other words, before culmination of the trial by pronouncement of the verdict. In the meantime, when the proceedings are pending and it appears to the Magistrate that the case deserves to be one which should be tried by the court of Session then he shall commit it to the court of Session and thereafter provisions of chapter XVIII of Code of Criminal Procedure, 1973 shall apply in the case.

Now the word 'appears' is of paramount importance, it does not require the Magistrate to analyse and discuss all the evidence before him and this power may be exercised by the Magistrate at any stage of proceedings before signing the judgment but at the same time it is also true that at the very slight pretext, such type of power should not be exercised. The discretion should be exercised with abundant caution.

On the other hand, it should be also borne in mind of the trial Magistrate that no injustice is caused to either of the parties. The word 'appears' denotes objective as well as subjective satisfaction of the trial Magistrate.

In the revisional jurisdiction, re-analysing of the evidence is not possible. It has also narrow compass to re-appreciate the evidence.

In the present case in hand, PW-2, prosecutrix Smt. XYZ in her cross-examination has clearly denied regarding the fact of making physical relationship with her by anyone.

She has also deposed that she has disclosed the incident of rape to her husband but her husband PW-1, Surya Dev has not deposed as such before the trial Magistrate. PW-1 Surya Dev in his application under Section 156(3) Cr.P.C. has not mentioned about the commission of rape with his wife. PW-2 prosecutrix Smt. XYZ has denied about the commission of rape upon her in her statement recorded under Section 161 Cr.P.C.

The learned Magistrate should have exercised his discretion after analysing the evidence. No anarchic approach should have been adopted which appear to affront the basic principles of law. Since, the discretion given to the Magistrate is judicial one; it should be exercised with care and on some proper ground. Every circumstance of aggravation must be carefully weighed.

This committal has been made under misapprehension of the correct offence.

Thus, the revision deserves to be allowed and the impugned order dated 21.10.2013 passed by the learned Additional Chief Judicial Magistrate, Court No.4, District- Mathura is liable to be set aside.

Resultantly, the criminal revision is allowed and the impugned order dated 21.10.2013 passed by the learned Additional Chief Judicial Magistrate, Court No.4, District- Mathura is hereby set aside.

Order Date :- 16.9.2016/ Atmesh