Vishram Singh vs State Of U.P. And Another
2018 Latest Caselaw 3363 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 48
 

 
Case :- APPLICATION U/S 482 No. - 37326 of 2018
 

 
Applicant :- Vishram Singh
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Jai Raj Singh Tomar,Kavita Tomar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Karuna Nand Bajpayee,J.

This application under Section 482 Cr.P.C. has been filed with the prayer to quash the impugned order dated 20.9.2018 passed by learned Additional District Judge,Court No. 10, Kanpur Dehat in Criminal Revision No. 13 of 2015, Vishram Singh vs. Naresh Singh @Dhyan Singh and others, rejecting the application No. 8Ga2 and 19Ga 2 filed by the applicant under Sections 145 and 146 Cr.P.C.

Heard learned counsel for the applicant and learned A.G.A. for the State. Perused the record.

The matter and issues involved in this case are purely legal in nature. Ordinarily this Court would have issued notices to the opposite party no. 2 before passing any final orders. But that course could have been quite detrimental to the interest of both the parties as in that situation the proceedings of the lower court had to be stayed. In the wake of heavy pendency of the cases in this Court it would not have been likelihood for this matter to be taken up at at any early date and the matter would have dragged for indefinite period of time. As this Court finds that the issues involved are absolutely legal in nature and the order passed by the lower revisional court is patently in the teeth of the law this Court deems it proper in the interest of justice to straightaway decide this matter without issuing notices to the opposite party no.2.

Learned A.G.A. is present representing the opposite party no. 1, who has also been heard apart from the counsel for the applicant.

It appears that some application was moved in the lower revisional court whereby certain documents were required to be submitted as additional evidence. The lower revisional court rejected the application moved on behalf of the applicant and gave its reasons in the impugned order. The prime reason which appears to have prompted the lower revisional court to reject the application was a wrong impression of law which it appears to have had in its mind. It was observed twice by the lower revisional court in its impugned order that at the stage of revision no documentary or oral evidence can be allowed to be brought on record any such evidence at the stage of revision is not permissible. It is apparent from the perusal of the order that this concept of law has dissuaded the court below not to allow the application moved by the applicant to bring certain documents on record as a matter of additional evidence. So far as the law on the point is concerned, it should be made clear that the power of the appellate court to take additional evidence is not different from the power of the revisional court to take additional evidence. In this regard it may be relevant to keep in perspective of Sections 391, 399 and 401 of Code of Criminal Procedure which may be useful to quote herein below:

"391.Appellate Court may take further evidence or direct it to be taken.-

(1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate.

(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.

(3) The accused or his pleader shall have the right to be present when the additional evidence is taken.

(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry.

399.Sessions Judges powers of revision.-

(1) In the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub-section (1) of section 401.

(2) Where any proceeding by way of revision is commenced before a Sessions Judge under sub-section (1), the provisions of sub-sections (2), (3), (4) and (5) of section 401 shall, so far as may be, apply to such proceeding and references in the said sub-sections to the High Court shall be constructed as references to the Sessions Judge.

(3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court.

401.High Courts powers of revision.-

(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 defense.

(3) Nothing in this section shall be deemed to authorize 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 an 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."

Section 399 of Cr.P.C. deals with Sessions Judge's powers of revision. As per sub-section (1) of Section 399 Cr.P.C. the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub-section (1) of Section 401 Cr.P.C. Sub-section (1) of Section 401 Cr.P.C. confers power upon the High Court, while acting in revisional jurisdiction to exercise any of the powers conferred on a Court of Appeal by Section 391 Cr.P.C. As quoted above in sub-section (1) of Section 391 Cr.P.C., the Appellate Court, if it thinks additional evidence to be necessary, shall record its reason and may either take such evidence itself, or direct it to be taken by a Magistrate. A combined reading of above mentioned provisions of Code of Criminal Procedure clearly shows that the power of Sessions Court while acting in revisional jurisdiction is the same as that of High Court with regard to taking additional evidence in revisional jurisdiction. It also becomes so clear that the High Court's powers of revision includes the powers conferred on a Court of Appeal by Section 391 of Code of Criminal Procedure which provides to take additional evidence while hearing the appeal. That brings the Court of Session and the High Court on the same footing so far as it relates to the power of taking additional evidence during the course of its hearing in revision.

Applicant's counsel has also placed reliance upon the decision of this Court given in the case of Bhagwan Swaroop vs. State of U.P. and another, 2015(88) ACC 454 in which it has been held by the High Court that additional evidence may be taken while hearing the criminal revision and this position of law was made clear and has been authenticated in the aforesaid case law also. That being the position of law. It is not difficult to see that the impugned order passed by the court below, has been passed under misimpression of law and therefore cannot be sustained.

The impugned order dated 20.9.2018 is hereby quashed. The matter is remanded back. The lower revisional court is directed to give a re-look to the application moved on behalf of the applicant and pass appropriate orders as it may deem fit in accordance with law keeping in view the facts and circumstances of the case.

The application stands allowed.

It is being clarified this order has not been passed on the merits of the case and should not be construed to have any reflection upon the appropriateness or need to take additional evidence in the matter. That is for the lower revisional court to decide in the facts and circumstances of the case. The impugned order has been quashed only because this Court has found that the same was passed under misconception of law which appears to have given the misimpression to the lower revisional court that while entertaining the revision it did not have the power to take additional evidence or that it was not permissible.

Office is directed to communicate this order to lower court concerned by the fastest mode available.

Order Date :- 26.10.2018

Naresh/Shiv