Allahabad High Court

Sri Kishan vs State on 30 May, 2018

Bench: Shashi Kant




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserve Judgement
 

 
Court No. - 40
 

 
Case :- CRIMINAL REVISION No. - 1528 of 1991
 

 
Revisionist :- Sri Kishan
 
Opposite Party :- State
 
Counsel for Revisionist :- Nipendra Chaturvedi,S K S Baghel
 
Counsel for Opposite Party :- A.G.A.
 

 
Hon'ble Shashi Kant,J.

1. Herad Sri S.K.S. Baghel, learned counsel for the revisionist and learned A.G.A. for the State of U.P.

2. This Criminal Revision under Section 397/401 of Criminal Procedure Code has been preferred against the judgment dated 10.05.1989 passed by Sri R.L. Shankhwar, VIIth Assistant Sessions Judge, Agra in S.T. No. 147 of 1988 (State vs. Sri Kishan), under Section 308 IPC, Police Station Firozabad (North), District Agra, whereby the revisionist was convicted and sentenced under Section 308 IPC for 2 years rigorous imprisonment and against the judgment and order dated 13.11.1991 passed by Sri S.K. Saxena, Vth Additional Sessions Judge passed in Criminal Appeal No. 71/1989 (Sri Kishan vs. State) whereby Criminal Appeal has been dismissed and judgment and order of the Court below was affirmed.

3. Learned counsel for the revisionist contended that :

3.1. The Courts below has not taken into notice the considerable unexplained delay caused In lodging of FIR.

There was no source of light to recognise the revisionist about 1:30 am in the dark night but the Courts below has not taken into consideration this material aspect no attention towards this material aspect of the case.

3.2. There was no injury on the person of the injured to make out the case punishable under section 308 IPC.

3.3. There is no independent corroboration of the statement of the complainant and the conviction based upon the single testomany is wrong and illegal.

3.4. The prosecution has miserably failed to prove its case beyond all the reasonable doubts.

3.5. The judgement and order passed by the courts below is against the weight of evidence on record as the Court below has failed to scrutinise and properly appreciate the prosecution evidence on record properly.

3.6. In any view of the matter no case under section 308 IPC. Is made out against the revisionist.

3.7. The Judgement and order passed by the courts below are wrong, illegal preverse and against the settled principle of law hence liable to be set aside.

3.8. The Impugned judgement and order is against the evidence on record as the courts below has failed to scrutinise the prosecution evidence on record properly.

4. Per contra learned A.G.A. contended that most of the arguments raised on behalf of the revisionist are based on the factual aspect of the case which could not be examined in this revision. In view of the fact that there is concurrent findings of the facts recorded by the Courts below. Learned consel for the revisionist could not show any illegality or perverisity in the findings of facts recorded by the Courts below. As such, this revision is devoid of merits and liable to be dismissed. However, he admitted that record of the Courts below are weeded out and could not be reconstructed despite the best efforts for it.

5. I have given my thoughtful consideration to the above referred rival arguments raised on behalf of the parties and carefully perused the material available on the file of this revision which shows that vide order dated 01.02.2016 the lower Courts records were summoned.

6. This revision was admitted vide order dated 28.11.1991 which reads thus : "Admit.

Issue notice.

Let applicant Sri Kishan be released on bail on his furnishing adequate sureties to the satisfaction of the Chief Judicial Magistrate, Agra."

7. Thereafter on 08.09.2016, 16.12.2016 and 24.03.2017 following orders have been passed :

Order dated 08.09.2016 :

"As per report of Officer In-charge Record Room, District Court Agra dated 7.9.2016, it appears that record of Criminal Appeal No. 71 of 1989 and Sessions Trial No. 147 of 1988 (State Vs. Shri Krishna) have been weeded out.

In these circumstances, learned Sessions Judge, Agra is directed to reconstruct the record of the aforesaid cases within six weeks' and also to make an enquiry who is responsible to weed out the complete record.

List thereafter."

Order dated 16.12.2016 :

"List revised. Letter has been received from District Judge, Agra that the record has been weeded out and reconstruction of the records is not possible. On perusal, enquiry report is submitted by Enquiry Officer Shri Arvind Vikas, Additional Chief Judicial Magistrate, Court No. 9, Agra. It transpires that no effort was made to issue notice to the parties or their counsel and enquiry report is submitted in haste. Learned District Judge also required to appoint a senior officer for reconstruction of the record.

Compliance report be submitted within four weeks.

List thereafter."

Order dated 24.03.2017 :

"As per report dated 12.01.2017 of District Judge, Agra reconstruction of the lost record is not possible.

In these circumstances, this revision will be heard on the basis of annexed documents filed with the revision.

Learned counsel for the revisionist prays for time.

List after four weeks."

8. The District Judge, Agra has informed vide his letter no. 141/2015 Agra dated 12th January, 2018 that Sri Ram Krishan Shukla, Additional District Judge, Court No.1 Agra was authorized to reconstruct the records of the Criminal Appeal No. 71/1989 and Session Trial No. 147/1988 (State vs. Sri Kishan), under Section 308 IPC, Police Station Firozabad (North) District Agra. Sri Ram Krishan Shukla, Additional District Judge, Court No. 1 Agra was authorized who has submitted his report dated 10.01.2017 after completing the inquiry. According to the report, the revisonist Sri Kishan was summoned by him and he has got recorded his statement before him to this effect that his counsel Sri Bhoop Singh has died. He has no papers of above Criminal Appeal and Sessions Trial with him.

9. Sri Shukla has also stated in his report about earlier report regarding reconstruction of the above records submitted by Sri Arvind Vikas, A.C.J.M./Inquiry Officer in Inquiry No. 81/2016 dated 17.11.2016, in which earlier Inquiry Officer also drew conclusion that reconstruction of above records are not possible.

10. The earlier enquiry officers Sri Arvind Vikas has observed in his report dated 17.11.2016 in reconstruction enquiry no. 21 of 2016 as under :

Þ2& ;g fd mDr iquxZBu esa esjs }kjk ftyk 'kkldh; vf/koDrk QkStnkjh] vkxjk dks bl vk'k; dk uksfVl izsf"kr fd;k x;k fd ;fn muds ikl mijksDr foyqIr i=koyh ls lEcfU/kr izys[k miyC/k gksa rks mUgsa iquZxBu gsrq esjs le{k izLrqr djuk lqfuf'pr djsA ftl ij ftyk 'kkldh; vf/koDrk QkStnkjh }kjk bl vk'k; dh fVIi.kh vafdr dh x;h gS fd mijksDr l= ijh{k.k ls lEcfU/kr dksbZ vfHkys[k muds dk;kZy; esa miyC/k ugha gSA

3& ;g fd mlds mijkUr esjs }kjk vfHk;qDr Jh d`".k iq= Jh [kqUuh yky fuoklh Bkj lhrkjke iksLV nhnkebZ Fkkuk fQjkstkckn mRrj tuin fQjkstkckn dks ryk'k djus gsrq U;k;ky; esa rSukr lgk;d fyfid Jh eukst dqekj o Fkkuk fldUnjk ds iSjksdkj Jh iszeohj flag dks Fkkuk fQjkstkckn mRrj Hkstk x;k] muds }kjk Fkkuk fQjkstkckn mRrj ls ,d mifujh{kd o iqfyl cy lkFk ys tkdj vfHk;qDr ds xkao esa dkQh ryk'k fd;k x;k] ijUrq vfHk;qDr dk dksbZ irk ugha py ldkA lEcfU/kr xzke iz/kku Jh lR;iky flag }kjk bl vk'k; dh rgjhj Hkh nh x;h gS fd mDr uke dk O;fDr orZeku irs ij u rks fuokl djrk gS vkSj uk gh esjh tkudkjh esa mDr irs ij dHkh jgkA Fkkuk jlwyiqj ftyk fQjkstkckn ds mifujh{kd Jh jes'k pUnz ;kno dh vk[;k Hkh i=koyh ij miyC/k gS] vk[;k nh x;h gS fd mDr irs ij esjs }kjk xgurk ls tkudkjh dh x;h] mDr irs ij dksbZ O;fDr fuokl djrk ugha ik;k x;kA mlds mijkUr esjs }kjk vfHkys[kiky QkStnkjh o fyfidx.k vfrfjDr ftyk ,oa l= U;k;k/kh'k d{k la0&5 o 7 dks uksfVl izsf"kr dj e; vfHkys[k ryc fd;k x;kA

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11. In view of the above it is clear that despite all the best efforts done by two officers for reconstruction of the records of lower court could not bring the fruits and the records of lower court could not be reconstructed.

12. In the aforesaid circumstances, the question arose before this Court for consideration as due to non availability of the records of the Courts below and failure in its reconstruction, what recourse/options are avaiable to the Court for proper determination of this revision?

13. To find out answer of above question the Court is required to take into consideration relevant legal provisions and case laws having bearing on the subject matter, which are being referred herein after.

Legal Provisions

385. Procedure for hearing appeals not dismissed summarily.

(1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given-

(i) to the appellant or his pleader;

(ii) to such officer as the State Government may appoint in this behalf;

(iii) if the appeal is from a judgment of conviction in a case instituted upon complaint, to the complainant;

(iv) if the appeal is under section 377 or section 378, to the accused, and shall also furnish such officer, complainant and accused with a copy of the grounds of appeal.

(2) The Appellate Court shall then send for the record of the case, if such record is not already available in that Court, and hear the parties: Provided that if the appeal is only as to the extent or the legality of the sentence, the Court may dispose of the appeal without sending for the record.

(3) Where the only ground for appeal from a conviction is the alleged severity of the sentence, the appellant shall not, except with the leave of the Court, urge or be heard in support of any other ground.

386. Power of the Appellate Court.

After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-

(a) in an appeal from an order or acquittal, reverse such order and direct that further inquiry be made, or that the accused be re- tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;

(b) in an appeal from a conviction-

(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re- tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the Same;

(i) reverse the finding and sentence and acquit or discharge the accused or order him to be re- tried by a Court competent to try the offence, or

(ii) alter the finding maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same;

(d) in an appeal from any other order, alter or reverse such order;

(e) make any amendment or any consequential or incidental order that may be just or proper; Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement: Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal.

397. Calling for records to exercise 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 an 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.

401. High Court' s Powers of revisions.

(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.

(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.

(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.

(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.

(5) Where under this Code tan appeal lies but an application for revision has been made to the High Court by any person and the High Court Is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.

Relevant Case Laws

14. In Shyam Deo Pandey VS. State of Bihar, 1971 (1) SCC 855 the Apex Court said that fulfillment of requirement for availability of record is necessary to enable the court to adjudicate upon the correctness or otherwise of the order or judgment appealed against nor only with reference to the judgment but also with reference to the records which will be the basis on which the judgment is founded. Relevant part of the judgment is extracted as under :

"18. Coming to Section 425, which has already been quoted above, it deals with powers of the Appellate Court in disposing of the appeal on merits. It is obligatory for the Appellate Court to ,send for the record of the case, if it is not already before the Court. This requirement is necessary to be complied with to enable the court to adjudicate upon the correctness or otherwise of the order or judgment appealed against not only with reference to the judgment but also with reference to the records which will be the basis on which the judgment is founded. The correctness or otherwise of the findings recorded in the judgment on the basis of the attack made against the same, cannot be adjudicated upon without reference to the evidence, oral and documentary and other materials relevant for the purpose. The reference to "such record" in "after perusing such record" is to the record of the case sent for by the Appellate Court."

15. In Sita Ram and Others Vs. State 1981 Cri.L.J. 65 the Court said that in absence of the original record it is not possible to arrive at a decision that the impugned judgment is supported by the evidence on record and the order of conviction passed and the sentence imposed on the appellants is legally justified and proper. Where it is not possible to reconstruct the record which has been lost or destroyed it is not legally permissible for the appellate court to affirm the conviction of the appellant since perusal of the record of the case is one of the essential elements of the hearing of the appeal. The appellant has a right to try to satisfy the Appellate Court that the material on record did not justify his conviction and that right cannot be denied to him. The relevant part of the judgment reads as under :

"4. Section 385, Cr. P.C. provides that if the appellate court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given (i) to the appellant or his pleader; (ii) to such officer as the State Government may appoint in this behalf; (iii) if the appeal is from a judgment of conviction in a case instituted upon complaint, to the complainant; (iv) if the appeal is under Section 377 or Section 378, to the accused, and shall also furnish such officer, complainant and accused with a copy of the grounds of appeal. Sub-section (2) provides that the appellate court shall then send for the record of the case, if such record is not already available in that Court, and hear the parties: provided that if the appeal is only as to the extent or the legality of the sentence, the Court may dispose of the appeal without sending for the record. Section 386 prescribes the powers of the appellate court. That power has to be exercised after perusing the record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears. In Queen-Empress v. Khimat Singh 1889 All WN 55 this Court observed "the appellant is entitled in law to have a hearing in this Court of his appeal, but the loss of the record has deprived him of the only means of making good the pleas of the appeal...." A Division Bench of the Calcutta High Court in Abbash Ali v. Emperor (1913) 19 Ind Cas 182 : 14 Cri LJ 182 observed that the appellate court must peruse the record before deciding the appeal. A decision upon a perusal only of the judgment appealed against is not legal.

5. Since it is incumbent on the appellate court to send for the record and peruse it and hear the counsel for the parties before it can exercise its power under Section 386, the present appeal cannot possibly be heard and decided on merit.

6. The appellants have a right to show to this Court that the decision arrived at by the court below was not supported by the evidence on record. They can legitimately contend that material evidence and circumstances have either been ignored or incorrectly appraised. This right cannot be denied to the appellants. In the absence of the original record it is not possible for us to arrive at a decision that the impugned judgment is supported by the evidence on record and the order of conviction passed and the sentence imposed on the appellants is legally justified and proper.

7. In such a situation two courses are open to the Court; (1) to order retrial after setting aside the impugned judgment; or (2) to acquit the appellants. A situation like the present one arose before Courts earlier also. In re Sevugaperumal AIR 1943 Mad 391 (2) : 44 Cri LJ 611 the accused were convicted under Sections 457, 395 and 397 Penal Code, and sentenced to various terms of imprisonment. Following the decision of this Court in Queen-Empress v. Khimat Singh 1889 All WN 55 (supra) the Madras High Court ordered retrial after setting aside the convictions. From the reports of these decisions it is not clear how much time had elapsed between the incident and the date when retrial was directed. In the Madras case the impugned order of the trial court was dated 22-6-1942. The appeal was filed on 6-8-1942 and the original record was destroyed by fire on 17-8-1942. The appeal came up for hearing on 5-11-1942. It may be that the time lapse between the date of the incident and the date of decision by the appellate court was not long. Moreover the Public Prosecutor conceded in those cases that no other course was possible under the circumstances.

8. In Madhusudhan v. State 1963 (2) Cri LJ 103 (Orissa) the appellant was convicted under Section 302, I.P.C. and sentenced to imprisonment for life by an order of the Sessions Judge dated 17-4-1962. The incident had taken place on 29-3-1962. The appeal came up for hearing on 12-12-1962. The appellate court directed retrial of the case. It may be noted that the order for retrial was passed well within two years of the incident.

9. A similar situation arose before this Court in Zillar v. State 1956 All WR (HC) 613. In this case the appellants were convicted by the Sessions Judge on 21-1-1951 under Sections 304 and 148, I.P.C. in respect of the offence committed on 2-4-1950. The appeal was filed in this Court on 24-1-1951 which came up for hearing in April 1956 when it was brought to the notice of the Court that the entire record of the case had been lost. Attempt was made to reconstruct the record but it proved futile. This Court refused to direct retrial of the case on the reasoning that the case related to an offence which was committed more than six years ago and five years had elapsed since the judgment of the Sessions Judge convicting the appellants was passed. The court took into account the further fact that even the copies of the F.I.R. and the statements of witnesses taken under Section 161 Cr. P.C. were not available as they had been weeded out in the ordinary course.

10. A Division Bench of this Court in Criminal Appeal No. 3235 of 1971 (Jit Narain v. State) decided on 15-3-1978 in similar circumstances allowed the appeal and acquitted the appellants instead of directing their retrial.

11. On a careful consideration of the relevant statutory provisions and the principle laid down in the cases cited before us we are of the opinion that where it is not possible to reconstruct the record which has been lost or destroyed it is not legally permissible for the appellate court to affirm the conviction of the appellant since perusal of the record of the case is one of the essential elements of the hearing of the appeal. The appellant has a right to try to satisfy the appellate court that the material on record did not justify his conviction and that right cannot be denied to him. We are further of the opinion that if the time lag between the date of the incident and the date on which the appeal comes up for hearing is short, the proper course would be to direct retrial of the case since witnesses normally would be available and it would not cause undue strain on the memory of witnesses. Copies of F.I.R., statements of witnesses under Section 161, Cr. P.C. reports of medical examination etc. would also be normally available if the time gap between the incident and the order of retrial is not unduely long. Where, however, the matter comes up for consideration after a long gap of years, it would neither be just nor proper to direct retrial of the case, more so when even copies of F.I.R. and statements of witnesses under Section 161, Cr. P.C. and other relevant papers have been weeded out or are otherwise not available. In such a situation even if witnesses are available, apart from the fact that heavy strain would be put on the memory of witnesses, it would not be possible to test their statements made at the trial with reference to the earlier version of the incident and the statements of witnesses recorded during investigation. Not only that the accused will be prejudiced but even the prosecution would be greatly handicapped in establishing its case and the trial would be reduced to a mere formality entailing agony and hardship to the accused and waste of time, money and energy of the State.

In the present case the incident took place on 23-8-1971. The appellants were convicted by the Sessions Court by an order dated 18-11-1974. The appeal has been pending in this Court for about six years. We are informed that copies of the First Information Report and statements of witnesses recorded under Section 161, Cr. P.C. have been weeded out and are not available. All attempts to reconstruct the record have proved futile. In such a situation it is not permissible for us to affirm the order of conviction of the appellants, since in the absence of the record we cannot possibly feel satisfied that the appellants have been rightly convicted. Due to lapse of time and non-availability of papers like First Information Report, statements under Section 161, Criminal Procedure Code etc, we do not consider it either just or expedient to order retrial of the case."

16. In Biswanath Ghosh Vs. State of West Bengal and others, (1987) 2 SCC 55, the Court said as under :

"6. We are constrained to observe that the procedure adopted by the High Court was no in consonance with the procedure established by law. Under s.385 of the Code of Criminal Procedure, it was obligatory for the High Court to fix a date for the hearing of the appeal and then send for the records of the Court of Sessions and hear the parties on merits. There was no warrant for the procedure adopted by the learned Judges in disposing of the appeal in this cha- valler manner. It does no credit to any branch of adminis- tration of justice that an appeal against conviction should be allowed without the Appellate Court having the records before it and without perusing the evidence adduced by the prosecution. To say the least, there has been a flagrant carriage of justice. It may be, as the High Court records in order, that the learned Public Prosecutor conceded that there was no evidence but then the High Court had to satisfy itself upon perusal of the records that there was no reli- able and credible evidence to warrant the conviction of the accused under s. 148 and s.302 read with s. 149 of the Indian Penal Code."

17. In Bhunda and Others Vs. State of U.P., 2002 Cri.L.J. 3898, the Court observed and held as under :

"7. After admission of the appeal, record of the Lower Court was requisitioned from the Sessions Judge concerned. The report of the Sessions Judge, Jhansi dated 19-2-2001 shows that the record of the Lower Court was weeded out on 31-10-1992. The Sessions Judge had ordered reconstruction of the record. According to report of First Additional Sessions Judge, Jhansi reconstruction of the record was not possible as no documents relating to the case were available.

8. The question which crops is as to whether the appeal can be decided for want of record of the Lower Court.

9. Similar situation arose before this Court in the case of Sita Ram v. State of U.P., 1981 Cri LJ 65. The Division Bench hearing the appeal held as below (Paras 4 and 5) :-

Section 385, Cr. P.C. provides that if the appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given (i) to the appellant or his pleader, (ii) to such officer as the State Government may appoint in this behalf; (iii) if the appeal is from a judgment, of conviction in a case Instituted upon complaint, to the complainant; (iv) if the appeal is under Section 377 or Section 378, to the accused, and shall also furnish such officer, complainant and accused with a copy of the grounds of appeal. Sub-section (2) provides that the appellate Court shall then send for the record of the case, if such record is not already available in that Court, and hear the parties, provided that if the appeal is only as to the extent or the legality of the sentence, the Court may dispose of the appeal without sending for the record. Section 386 prescribed the powers of the appellate Court. That power has to be exercised after perusing the record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears. In Queen-Empress v. Khirnat Singh, 1989 All WN 55 this Court observed 'the appellant is entitled in law to have a hearing in this Court of his appeal, but the loss of the record has deprived him of the only means of making good the pleas of the appeal...'. A Division Bench of the Calcutta High Court in Abbash Ali v. Emperor, (1913) 19 Ind Cas 182 : 14 Cri LJ 182 observed that the appellate Court must peruse the record before deciding the appeal. A decision upon a perusal only of the Judgment appealed against is not legal.

Since it is incumbent on the appellate Court to send for the record and peruse it and hear the counsel for the parties before it can exercise its power under Section 386, the present appeal cannot possibly be heard and decided on merit.

It was further held as below (Para 11):-

Where it is not possible to reconstruct the record which has been lost or destroyed it is not legally permissible for the appellate Court to affirm the conviction of the appellant since perusal of the record of the case is one of the essential elements of the hearing of the appeal. The appellant has a right to try to satisfy the appellate Court that the material on record did not justify his conviction and that right cannot be denied to him. We are further of the opinion that if the time lag between the date of the incident and the date on which the appeal comes up for hearing is short, the proper course would be to direct retrial of the case since witnesses normally would be available and it would not cause undue strain on the memory of witnesses. Copies of F.I.R. statements of witnesses under Section 161, Cr. P, C. reports of medical examination etc. would also be normally available if the time gap between the incident and the order of retrial is not unduly long. Where, however, the matter comes up for consideration after a long gap of years, it would neither be just nor proper to direct retrial of the case, more so when even copies of F.I.R. and statements of witnesses under Section 161, Cr. P.C. and other relevant papers have been weeded out or are otherwise not available. In such a situation even if witness are available, apart from the fact that heavy strain would be put on the memory of witnesses, it would not be possible to test their statement made at the trial with reference to the earlier version of the incident and the statements of witnesses recorded during investigation. Not only that the accused will be prejudiced but even the prosecution would be greatly handicapped in establishing its case and the trial would be reduced to a mere formality entailing agony and hardship to the accused and waste of time, money and energy of the State.

10. The above case of Division Bench was further relied on by subsequent Division Bench in the case of Ram Nath v. State, 1982 All Cri C 128.

11. In the instant case the report of the Sessions Judge, Jhansi shows that reconstruction of record was not possible despite of all attempts taken in this regard. this Court, therefore, is not in a position to confirm the conviction recorded by the trial Court.

12. So far as the question of ordering retrial is concerned the occurrence in this case took place as late as on 20-5-1975 i.e. as far back as 26 years. In such situation it will not be justifiable to direct retrial.

In this view of the matter, I have no option but to allow the appeal and set aside the conviction and sentence of the appellants."

18. In State of U.P. v. Abhai Raj Singh (2004) 4 SCC 6, the Court observed and held as under :

"6. The powers of the appellate court when dealing with an appeal from a conviction are delineated in sub-clauses (I), (ii) and (iii) of clause (b) of section 386 of the code. The appellate court is empowered by section 386 to reverse the finding and sentence and acquit. Therefore, the acquittal is possible when there is reversal of the finding and sentence and acquit. Therefore, the acquittal is possible when there is reversal of the finding and sentence. The appellate court of competent jurisdiction subordinate to the appellate court or committed for trial . For exercise of the powers in cases of first two categories, obviously a finding on merits after consideration of the materials on record is imperative. Where that is not possible because of circumstances like the case at hand i.e. destruction of the records , the proper course for the appellate court would be to direct retrial after reconstruction of the records the same was impossible. If on the other hand, from the copies available with the prosecuting agency or the defence and/or their respective counsel, reconstruction is possible to be made, the said course indicated in sub-clause (i) and (ii). After perusal of the records and hearing the appellant's pleader and Public Prosecutor under section 377 or 378, the exercise of power as indicated above can be resorted to. As was observed in Bani Singh v. State of U.P. (1996) 4 SCC 720 . The plain language of section 385 makes it clear that if the appellate court does not consider the appeal fit for summary dismissal, it must call for the records and section 386 mandates that after record is received, the appellate court may dispose of the appeal after hearing as indicated.

7. A question would further arise as to what happens when reconstruction is not possible. Section 386 empowers the appellate court to order that the case be committed for trial and this power is not circumscribed to cases exclusively triable by the Court of Session.(See State of U.P. v. Shankar AIR 1962 SC1154).

8. It has been the consistent view taken by several High court that when records are destroyed by fire or on account of natural or unnatural calamities reconstruction should be ordered. In Queen Empress v. Khimat Singh 1889 AWN 55 the view taken was that the provisions of section 423(1) of the criminal procedure code,1898(in short " the old code") made it obligatory for the court to obtain and examine the record at the time of hearing. When it was not possible to do so, the only available course was a direction for reconstruction. The said view was reiterated more than six decades back in Sevuaperumal,Re AIR1943 Mad 391(2). The view has been reiterated by several high Courts as well,even thereafter.

9. The High court did not keep the relevant aspects and consideration in view and came to the abrupt conclusion that reconstruction was not possible merely because there was no response from the Session Judge. The order for reconstruction was 1-11-1993 and the judgement of the high court is in Criminal Appeal No. 1970 of 1979 dated 25-2-1994. the order was followed in Criminal Appeal No. 1962 of 1979 disposed of on 16-9-1995. it is not clear as to why the high court did not require the session court to furnish the information about reconstruction of records; and/or itself take initiative by issuing positive directions as to the manner, method and nature of attempts,efforts and exercise to be undertaken to effectively achieve the purpose in the best interests of justice and to avoid ultimately any miscarriage of justice resulting from any lapse,inaction or inappropriate or perfunctory action,in this regard; particularly when no action was taken by the high court to pass necessary orders for about a decade when it received information about destruction of record. The course adopted by the high court, if approved, would encourage dubious persons and detractors of justice by allowing undeserved premium to violators of law by acting hand in glove with those anti-social elements coming to hold sway,behind the screen, in the ordinary and normal course of justice.

10. We , therefore, set aside the order of the high court and remit the matter back for fresh consideration. It is to be noted at this juncture that one of the respondents i.e. om pal has died during the pendency of the appeal before this court .The High court shall direct reconstruction of the records within a period of six months from the date of receipt of our judgment from all available or possible sources with the assistance of the prosecuting agency as well as the defending parties and their respective counsel. If it is possible to have the records reonstructed to enable the high court itself to hear and dispose of the appeals in the manner envisaged under section 386 of the code,rehear the appeals and dispose of the same, on their own merits and in ordering retrial interest of justice could be better served-adopt that course. If only reconstruction is not possible to facilitate the high court to hear and dispose of the appeals and the further course of retrial and fresh adjudication by the sessions court is also rendered impossible due to loss of vitally important basic records- in that case and situation only, the direction given in the impugned judgement shall operate and the matter shall stand closed. The appeals are accordingly disposed of."

19. In Pati Ram & Another Vs. State of U.P., 2010 Cri.L.J. 2767, the Court observed and held as under :

"12. I have given my thoughtful consideration to the rival submissions made by the parties counsel. It is true that another Bench of this Court in the case of Raj Narain Pandey (Supra) has decided the appeal on merit in the absence of lower court record on the basis of the impugned judgement only, but in my considered opinion, the appeal can not be decided on merit in the absence of lower court record. Unless the evidence is available for perusal, in my opinion, the appeal can not be considered and decided on merit merely on the basis of the lower court judgement, as evidence is essentially required to consider the merit of the impugned judgement and merely on the basis of the said judgement, no order on merit can be passed in the appeal.

13. As is evident from the report of IVth Addl. Sessions Judge, Bareilly, no paper of the case is available. In spite of best efforts made by the courts below, the lower court record could not be reconstructed. Since no paper of the case is available, hence there is no possibility of re-trial at this stage after more than thirty years. Therefore, in view of the observations made by the Hon'ble Apex Court in the case of State of U. P. Vs. Abhay Raj Singh (supra) there is no alternative except to acquit the appellants, as hearing of the appeal in accordance with the arrangement made in section 386 cr. p. c. can not be made and retrial also is not possible.

14. Consequently, the appeal is allowed. The impugned judgement and order are set aside and the appellants-accused Pati Ram and Ram Swarup are hereby acquitted of the offence under section 304 read with section 34 ipc for want of trial court record and there being no possibility of retrial."

20. In Laukush and Another Vs. State of U.P., 2013 (7) RCR(Cri) 493, the Court observed and held as under :

"2.These two criminal appeals emanate from the same judgment and order dated 30.7.1982 passed in Session Trial No. 496 of 1981-State Vs. Laukush and others, by IXth Additional Session Judge, Kanpur Nagar, whereby the appellants Basdeo, Chhedi Lal, Beni, Shiv Ram, Ramesh, Shyam Lal (appellants in Criminal Appeal No. 1877 of 1982) and two other appellants Laukush and Chhote Lal, who are appellants in Criminal Appeal No. 1878 of 1982, were convicted under Sections 302/149, 147, 307/149, 323/149 I.P.C. and were sentenced to life imprisonment, one year R.I., five years R.I. and six months R.I. respectively. Thus, the appellants have challenged the impugned judgment and order dated 30.7.1982 whereby their conviction and sentence as stated above, was recorded.

3. Both the appeal Nos. 1878 of 1982 and 1877 of 1982 were admitted on 11.8.1982 and at the time of admission, the appellants were granted bail by this Court and since that date, the appellants continued to be on bail.

4. For disposal of these appeals, the lower court record was requisitioned which could not be available inspite of best possible efforts. As per report of the then District Judge, Kanpur Nagar dated 19.6.2003, the original record was received by the then Assistant Record Keeper Sri Mahesh Katiyar on 30.5.1983 who expired 7-8 years ago. The report to this effect was sent by the District Judge, Kanpur Nagar. The report of the District Judge, Kanpur Nagar dated 19.6.2003 was put up before the Division Bench of this Court on 23.8.2007 when this Court passed the following order:-

"In this view of the matter, the District Judge, Kanpur Nagar shall immediately take steps for trying to get the record of the case reconstructed and utilise the assistance of the counsel for the accused and State and submit compliance report to this Court within four weeks.

List on 24.9.2007."

5. A reminder was issued to the District Judge, Kanpur Nagar by this Court on 24.9.2007 directing the case to be listed on 29.10.2007. The District Judge, Kanpur Nagar vide his report dated 12.2.2008 apprised this Court that efforts for reconstruction of the record were entrusted to Sri R.P. Pandey, Additional District & Sessions Judge, Court No. 9, Kanpur Nagar. Sri Pandey could not complete the work of reconstruction of the record. The report of the District Judge, Kanpur Nagar dated 12.2.2008 was put up before this Court on 10.4.2012. When this Court was not satisfied with the reasons mentioned in the report for not reconstructing the lower court record, the District & Sessions Judge, Kanpur Nangar was directed to take effective steps in reconstruction of the lower court record without fail within two months and the case was directed to be listed on 10.7.2012. It was further directed that in case lower court record is not reconstructed, the District & Sessions Judge, Kanpur Nagar shall appear in person to explain the reasons as to why the lower court record has not been reconstructed.

6. It is in compliance of the order dated 10.4.2012, passed by this Court, that a report dated 9.7.2012, sent by the Incharge District Judge, Kanpur Nagar to this Court has been placed before us. This report is taken on record which shall form part of this appeal.

7. According to the report dated 9.7.2012, sincere efforts were made at different levels including C.M.O., C.M.S., Superintendent Hallet Hospital, S.H.O. Sachendi, Kanpur and D.I.G., Kanpur Nagar but the reconstruction of the record of the said Sessions Trial could not be possible despite multi pronged approach. According to this report, Smt. Janak Dulari, informant of this case had died long back and it was also informed by the injured persons of this case that their counsel was quite aged and was not practising for last several years and no document was available with them. A letter was also written by enquiry officer/ Additional District & Sessions Judge, Court No. 9, Kanpur Nagar to D.G.C. (Crl.), Kanpur Nagar for furnishing original/ copy of the case diary of the said case. The D.G.C. (Crl.), Kanpur Nagar has also informed that no document is available in the office relating to the said Sessions Trial. The report dated 9.7.2012 of the Incharge District Judge is detailed one mentioning of all efforts made by the Inquiry Officer/ Additional District & Session Judge, Court No. 9, Kanpur Nagar.

8. Affidavits of six accused persons have been filed to the effect that the documents of the aforesaid case are not available with them and their counsel had died long back. According to this report, two accused persons Shiv Ram and Shyam Lal had died. This lengthy and detailed report of the Incharge District Judge, Kanpur Nagar dated 9.7.2012 makes it evident that reconstruction of the said record is not possible.

9. In the absence of original record, since reconstruction is not possible, remanding the appeal back for retrial will not serve any useful purpose at all.

10. From the impugned judgment, it transpires that the incident had occurred on 8.6.1979, more than 30 years ago and the appellants were released on bail in the year 1982 by this Court.

11. Since reconstruction of the record is not possible, we apply the decision of the Apex Court in State of U.P. Vs. Abhai Raj Singh (2004) 4 SCC 6, wherein the Hon'ble Apex Court has been pleased to observe as under :-

"If only reconstruction is not possible to facilitate the High Court to hear and dispose of the appeals and the further course of retrial and fresh adjudication by the Sessions Court is also rendered impossible due to loss of vitally important basic records- in that case and situation only, the direction given in the impugned judgment shall operate and the matter shall stand closed."

12. In view of the aforesaid, we allow both the appeals and the impugned judgment of conviction and sentence of the appellants are hereby set aside and they are set at liberty and are acquitted of the charges. The appellants are on bail, they need not surrender. Their bail bonds and surety bonds are discharged."

21. In Paresh Chandra Bhowmick Vs. Usharanjan, 51 Cr.L.J. 1950 (1298), the Court said with reference of Section 423 Cr.P.C. which mentions some of the powers of the Appellate Court that the Court in its revisional jurisdiction has all these powers and perhaps something more. The relevant part of the judgment is extracted herein below :

"3. ............It is true that an order of discharge is different from an order of acquittal and such an order does not protect a person discharged from being subject to fresh proceedings in regard to the offence with respect to which he was discharged, but it does not follow from this that where an order of discharge comes up before this Court in revision the jurisdiction of this Court is fettered in the way suggested by Mookerjee J. This Court has ample jurisdiction to send the case back on remand for the retrial of any particular offence while upholding the decision of the Court below with respect to other offences. In my opinion this view is clearly supported by the provisions of Section 439 (1), Criminal P. C. That section says that this Court on revision may exercise in its discretion any of the powers conferred on a Court of appeal by Sections 423, 426, 427 and 428 of the Code. Now, it is quite clear that when there is an appeal the Court may remand the case with respect to one of several offences and accept the lower Court's decision with respect to the other offences. A limited order of remand is clearly allowed to an appellate Court and there are innumerable decisions where this power has been exercised. This Court in its revisional jurisdiction has all these powers and perhaps something more. In this connection I may refer to Section 423, Criminal P. C., which mentions some of the powers of the appellate Court. Section 423 (1) (a) of the Code states what the Court of appeal may do in the case of acquittal. Sub-section (b) of Section 423 (1) states what the Court may do in a case of conviction. Sub-section (c) deals with an appeal from any other order and says that the appellate Court may alter or reverse such order. Sub-section (d) says that the appellate Court may make any amendment or any consequential or incidental order that it may think just and proper. The case falls under Sub-section (d) of Section 423 (1) of the Code. The order here is a consequential or incidental order. If the Court finds that the charge of forgery cannot be established but that there are materials for investigating a charge of cheating, the Court may remand the case for the trial of the charge of cheating only on an application against an order of discharge."

22. In Caetano Colaco Vs. Joao Rodrigues, AIR 1966 Goa, Daman and Diu 32 (FB), the Court said as under :

"9. ..... It is true that the scope of S. 435 of the Code is wider in so far that the High Court can consider the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceeding of an inferior court, but even so, this jurisdiction is not to be exercised in every case of impropriety or illegality, unless it causes failure of justice. As a broad proposition we may state that interference may be justified where (a) the decision is grossly erroneous;

(b) where there is no compliance with the provisions of law ;

(d) where material evidence of the parties is not considered, and

(e) where judicial discretion is exercised arbitrarily or perversely. These instances are illustrative and not exhaustive. Each case must of necessity depend on the facts and circumstances of the particular case before the court."

23. In State Of Orissa v. Nakula Sahu and Ors. (1979) 1 SCC 328, the Court said as under :

"9.So far as the first point is concerned, it is to be emphasized that although the revisional power of the High Court under section 439 read with section 435 of the Code of Criminal Procedure, 1898 is as wide as the power of Court of Appeal under section 423 of the Code, it is now well settled that normally the jurisdiction of the High Court under section 439 is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a mainfest error on a point of law which has consequently resulted in flagrant miscarriage of justice. Reference in this connection may be made to the decisions of this Court in Amar Chand Agarwalla v. Shanti Bose & Anr. etc.(1) and Akalu Ahdr v. Ramdeo Ram(2), In the latter case viz. Akalu Ahir v. Ramdeo Ram (supra) this Court follolwing its earlier decision in Amar Chand Agarwalla v. Shanti Bose & Anr etc. (supra) held that in spite of the wide language of section 435 of the Code of Criminal Procedure, 1898 which empowered it to satisfy itself as to the correctness legality or propriety of any finding, sentence or order recorded or passed by any inferior court situate within the limits of its jurisdiction and as to the regularity of any proceeding of such inferior court and in spite of the fact that under section 439 of the Code it can exercise inter alia the power conferred on a court of appeal under section 423 of the Code, the High Court is not expected to act under section 435 or section 439 as if it is hearing on appeal. The power being discretionary, it has to be exercised judiciously and not arbitrarily or lightly. Judicial discretion, as has often been said, means a discretion which is informed by tradition, methodised by analogy and disciplined by system."

24. In A.K. Subbaiah and ors. v. State of Karnataka and ors. (1987) 4 SCC 557, the Court said as under :

"10. Therefore it clearly indicates that the court when calls for the record in exercising powers under Sec. 397 Cr.P.C. it is expected to examine the records for the purpose of satisfying itself about legality, propriety and correctness of the order passed and also about the regularity of the proceedings."

(Emphasis supplied by the Court)

25. In State of Kerala v. Puttumana illath jathavedan Namboodiri (1999) 2 SCC 452, the Court said as under :

"5. In Its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tentamount to gross miscarriage of justice."

26. In State of Maharastra v. Jagmohan Singh Kuldip Singh Anand and ors. AIR 2004 SC 4412, the Court said as under :

"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 CrPC. Section 401 CrPC is provision enabling the High court to exercise all powers of Appellate Court, if necessary, in aid of power of supritendence or supervision as a part of power of revision conferred 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 passsed 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 CrPc conferring power of Appellate Court on the Revisional Court is with the above limited purpose. The provisions contained in Section 395 to section 401 CrPc, read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power."

27. In Madan Lal Kapoor v. Rajiv Thapar (2007)7 SCC 623, the Court said as under :

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

5.Thus in Bani Singh v. 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 default but should be decided on merits. If despite notice neither the appellant nor his counsel is present,the court should decide the appeal on merits. If the appellant is in jail the court can appoint a lawyer at State expense to assist it. This would equally apply to the respondent.

6. In Bani Singh v. State of U.P. the Supreme Court overruled its earlier decision in Ram Naresh Yadav v. State of Bihar AIR 1987 SC1500 in which it was held that a criminal appeal can be dismissed for default.

7. In Parasuram Patel v. State of Orissa (1994)4 SCC 664 the Supreme Court held that a criminal appeal cannot be dismissed for default."

8. In Our Opinion the same reasoning applies to criminal revisions also, and hence a criminal revision cannot also be dismissed in default."

(Emphasis supplied by the Court)

28. In Rameshwar Prasad v. State of Rajasthan (2009) 4 SCC 471, the Court said as under :

"8. It is to be noted that neither in appeal before the learned Sessions Judge nor in the revision before the High Court was there no (sic any) examination of appeal on merits. The first appellate court as rightly noted by the High Court remanded the matter to the tral court for consideration of various aspects which in essence were to fill the lacunae in the prosecution version. The High Court noted that this was impermissible in law. Having said that the high court ought to have examined the case of the appellant on merits because the same was not done by the first appellate court."

29. The plain language of Section 385 makes it clear that if the appellate Court does not consider the appeal fit for summary dismissal, it must call for the records and section 386 mandates that after record is received, the appellate Court may dispose of the appeal after hearing as indicated.

30. Pith and substance of above referred case laws relating to the criminal appeals viz. Shyam Deo Pandey, Sita Ram and Others, Biswanath Ghosh, Bhunda and Others, Abhai Raj Singh, Pati Ram and Another and Laukush and Another (all Supra) is that the Apex Court as well as High Court's have taken a consistent view that when record of the Courts below is destroyed by fire or on account of natural or unnatural calamities, reconstruction should be ordered.

31. If the record is reconstructed the High Court may itself hear and dispose of the appeals, on their own merits in the manner envisaged under Section 386 Cr.P.C.

32. Now, I will examine another aspect regarding sending of the case for retrial.

33. In Sita Ram (supra) the Court while examining the aspect of sending a case for retrail, observed and held as under :

"11. ...... We are further of the opinion that if the time lag between the date of the incident and the date on which the appeal comes up for hearing is short, the proper course would be to direct retrial of the case since witnesses normally would be available and it would not cause undue strain on the memory of witnesses. Copies of F.I.R., statements of witnesses under Section 161, Cr. P.C. reports of medical examination etc. would also be normally available if the time gap between the incident and the order of retrial is not unduely long. Where, however, the matter comes up for consideration after a long gap of years, it would neither be just nor proper to direct retrial of the case, more so when even copies of F.I.R. and statements of witnesses under Section 161, Cr. P.C. and other relevant papers have been weeded out or are otherwise not available. In such a situation even if witnesses are available, apart from the fact that heavy strain would be put on the memory of witnesses, it would not be possible to test their statements made at the trial with reference to the earlier version of the incident and the statements of witnesses recorded during investigation. Not only that the accused will be prejudiced but even the prosecution would be greatly handicapped in establishing its case and the trial would be reduced to a mere formality entailing agony and hardship to the accused and waste of time, money and energy of the State.

34. In the cases viz. Sita Ram and Others, Bhunda and Others, Abhai Raj Singh, Pati Ram and Another and Laukush and Another (all supra) an option of sending the cases for re-trial was also not found fruitful due to lapse of long time between the incident and time for consideration of above option for re-trial of the case.

35. In the above circumstances i.e. impossibility of reconstructins of the record and non desireablity of retrial of the case, the Courts concerned have adopted the recourse of allowing the appeals and acquitting the appellants by setting aside their conviction and sentence as is evident from the judgment in the cases of Sita Ram and Others, Bhunda and Others, Abhai Raj Singh, Pati Ram and Another, Laukush and Another (all supra).

36. After examining the above referred various aspects and modes of adjudication of Criminal Appeals, in cases where records of the Courts below have been weeded out/destroyed, not available and re-construction of the same is also not possible. Now, it has to be seen as to whether similar mechanism may be adopted for adjudication of the Criminal Revisions lying on the same footing?

37. To find out answer of the above question, it will be appropriate to consider the powers of the Revisional courts. In the above regard it may be stated here that like the powers of Appellate Courts to call for the record of lower Courts and its perusal for proper determination of the appeal, Section 397(1) Cr.P.C. authorises the Revisional Courts to call for and examine the record of any proceeding before any inferior criminal Court, in appropriate cases, 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 regularity of any proceeding of such inferior Court. More over, Section 401 (1) Cr.P.C. authorises the High Court in exercise of its powers as Revisional Court in its discretion to exercise any of the powers conferred on the Court of Appeal by Sections 386, 389, 390 and 391 Cr.P.C.

38. At this stage, I would also like to recapitulate the above referred case laws relating to the powers of the revisional Court, which are as under :

39. In Madan Lal Kapoor (Supra), the Apex Court expressed its opinion to the effect that In Our Opinion the same reasoning applies to criminal revisions also, and hence a criminal revision cannot also be dismissed in default.

40. In Paresh Chandra Bhowmick (supra) the Court said with reference of Section 423 Cr.P.C. which mentions some of the powers of the Appellate Court that in its revisional jurisdiction the High Court has all these powers and perhaps some thing more.

41. In A.K. Subbaiah and Others (supra) the Apex Court said that the Court when call for the record in exercise of powers under Section 397 Ccr.P.C. it is expected to examine the records for the purpose of satisfying itself about the correctness, legality or propriety of any finding, sentence or order recorded or passed and also about the regularity of the proceedings.

42. In Puttumana Illath Jathavedan Namboodiri (supra) the Apex Court said that in its revisional jurisdiction the High Court can call for and examine the records of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed. However, the said revisional power cannot be equated with the power of the Appellate Court nor can it be treated even as a second appellate jurisdiction.

43. In Jagmohan Singh Kuldip Singh Anand and others (supra) the Apex Court said that the revisional Court is empowered to exercise all the powers conferred on the appellate Court by virtue of provisions contained in Section 401 Cr.P.C.

44. In Remeshwar Prasad (supra) the Apex Court said that in the facts and circumstances of the case the High Court ought to have examined the case of the appellants on merits in exercise of its revisional jurisdiction because the same was not done by the first Appellate Court.

45. As such, it is a well established fact that no satisfaction regarding to the correctness, legality or propriety of any finding, sentence or order recorded or passed can be recorded in absence of the records of the inferior Courts and without its examination i.e. the evidence available on record which is a foundation of the judgment and basis for recording various findings. Similarly correctness of procedure adopted by the Courts below and also could not be examined in absence of the record.

46. The learned counsel for the revisionist in his arguments has paid much emphasis ragarding wrong appreciation of the prossecution evidence by the Courts below, truthfulness and correctness of which could not be decided without looking the evidence available on record, but unfortunately in the case in handrecords of the Courts below had weeded out and could not be reconstructed despite all the best efforts.

47. So far sending the case in hand for retrial is concerned it will serve no useful purpose as the incident of this case relates to the intervening night of 17/18.11.1984 on the trivial issue of earlier incident of slapping to the acccused revisonist by the complainant. The Trial Court has decided the case vide impugned judgment and order dated 10.05.1989 and the Appellate Court has confirmed the impugned judgment and order on November 13, 1991. The revisionist was directed to be released on bail vide order dated 28.11.1991 since then he is on bail and approximately 34 years have been passed in between.

48. In view of the above, after a lapse of appromateily 34 years sending the present case will not cause miseries and prejudice only to the accused revisionist but prosecution will also feel itself handicapped in establishing its case. As such, retrial would reduce itself into a mere formalily and in their aggravate the agony and hardships of the accused revisionist. Moreover, such exercise will prove a mere wastage of time, money and energy of the State without serving any good purpose.

49. For the aforesaid discussion I am of the considered opinion that same strategy should be adopted for the determination of this criminal revision which is adopted for determination of above referred criminal appeals of like nature.

50. In the above referred facts and circumstances, this Court is left with no option but to allow this revision and acquit the revisionist from the charges framed against him.

51. Consequently, this revision is allowed. The judgment and orders dated 10.05.1989 passed by 7th Assistant Sessions Judge. Agra in Sessions Trial No. 147 of 1988 - State Vs. Shri Kishan, under Section 308 I.P.C., Police Station - Firozabad Uttar, District - Agra and November 13, 1991 passed by Vth Additional Sessions Judge, Agra in Criminal Appeal No. 71 of 1989 - Shri Krishna Vs. State, are hereby set aside. The revisionist is on bail, he is not required to surrender and the bail bonds and sureties submitted by him stand discharged.

52. However, keeping in view the provisions of Section 437-A Cr.P.C., the revisionist Kishan is directed to furnish personal bonds of the amount fixed by the Chief Judicial Magistrate/Court concerned and two reliable sureties each in the like amount (which shall be effective for a period of six months) to the effect that in the event of filing of Special Leave Petition or for grant of leave to appeal against this judgment, the revisionist on receipt of notice thereof shall appear before the Hon'ble Supreme Court.

Order date : 30.05.2018

A. Verma/Monika