Allahabad High Court
Rajesh Tripathi vs State Of U.P on 26 September, 2022
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 19
Case :- CRIMINAL REVISION No. - 102 of 2010
Revisionist :- Rajesh Tripathi
Opposite Party :- State Of U.P
Counsel for Revisionist :- Mohd. Sulat Wasim
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Saurabh Lavania,J.
Case called out. No one appeared on behalf of revisionist to press the revision. However, learned A.G.A. is present for State.
Present revision under Section 397/401 CrPC has been filed assailing the order dated 20.01.2010 passed by Additional Sessions Judge, Court No. 17, Lucknow passed in S.T. No. 1372 of 2009, Case No. 179 of 2005 (State vs. Rajesh Tripathi), whereby the Court concerned has rejected the discharge application of the revisionist preferred under Section 227 CrPC.
Here, it may be profitable to refer to the decision of the Supreme Court in Madan Lal Kapur vs. Rajiv Thapar and others, (2007) 7 SCC 623, wherein the obligation of a revisional court to decide on merits, has been approved as the only lawful course of action by their Lordships, in the following words:
"4. 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.
5. Thus in Bani Singh v. State of U.P. [(1996) 4 SCC 720 : 1996 SCC (Cri) 848], 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. [(1996) 4 SCC 720 : 1996 SCC (Cri) 848] the Supreme Court overruled its earlier decision in Ram Naresh Yadav v. State of Bihar[AIR 1987 SC 1500 : 1987 Cri LJ 1856] 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 : 1994 SCC (Cri) 1320] 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."
It is settled principle of law that the Court concerned while considering the discharge application has to consider the evidence, which has been collected by the Investigating Officer during the investigation and the at the time of dealing of the application for discharge, the Court concerned is not under obligation to consider the evidence produced by the accused. Further, mini trial cannot be held by the Trial Court at the time of considering the discharge application.
Considering the aforesaid as also the age of revision and taking note of the judgment of Hon'ble Apex Court, this Court, in absence of counsel for the revisionist, proceeded to consider the impugned order dated 20.01.2010 in the light of scope of revisional jurisdiction under Section 397 read with Section 401 of Cr.P.C.
It would be appropriate to refer herein that the Court has limited scope to deal with the matters related to criminal revision. Revisional jurisdiction can only be exercised by the Revisional Court, if there is jurisdictional error or the Court concerned has passed the order without jurisdiction or the Court concerned has recorded a finding which appears to be perverse.
Upon due consideration, this Court finds that the Trial Court after considering the evidence collected by the Investigation Officer during investigation against the present revisionist as also after considering the law placed before it and plea of alibi taken by the present revisionist in the application for discharge held that the prima facie, the offence against the revisionist is made out, as such, the trial Court rejected the application for discharge. The Trial Court while rejecting the application for discharge also observed that the plead of alibi can not be taken note of at this stage of the proceedings.
Further from the paper book it appears that this Court has not protected the interest of the revisionist. In other words, no interim order was passed in favour of the present revisionist by this Court at the time of entertaining the present revision. It further transpires from the paper book that present revision has not been admitted till date.
This Court, upon due consideration, in the facts of the case, is of the view that the Trial Court has not committed any jurisdictional error while rejecting the application for discharge of the revisionist. It also be noted that the discharge application was rejected vide order dated 20.01.2010 and no interim order is operating in favour of the present revisionist and the trial must have been concluded.
Accordingly, the revision lack merits and the it is accordingly dismissed.
Order Date :- 26.9.2022
Vinay/-
