Allahabad High Court
Om Prakash Jain And Others vs State Of U.P. on 25 April, 2023
Bench: Jyotsna Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 93.................................... .. AFR
Case :- CRIMINAL REVISION No. - 4598 of 2009
Revisionist :- Om Prakash Jain And Others
Opposite Party :- State of U.P.
Counsel for Revisionist :- Vidya Prakash Singh
Counsel for Opposite Party :- Govt. Advocate,Akshat Sinha,Y.K.Singh
Hon'ble Mrs. Jyotsna Sharma,J.
1. Heard Vidya Prakash Singh, learned counsel for the revisionists and Sri O.P. Mishra, the learned A.G.A. for the State and perused the material on record.
2. By means of this criminal revision, the revisionists no. 1, 2 & 3 have challenged the order dated 06.11.2009 passed in Criminal Appeal No. 01 of 2005, Sanjay Jain & Others Vs. State of U.P., arising out of Case Crime No. 175 of 1999, under section-498-A I.P.C. read with section 3/4 of D.P. Act, Police Station- Kavi Nagar, District Ghaziabad, by which the learned Additional Sessions Judge, Ghaziabad passed an order that it shall be presumed that one of the accused person namely, Sanjay Jain, is absconding and accordingly the appeal shall proceed.
3. Some other relevant facts are below:-
i. Sanjay Jain, Om Prakash Jain, Smt. Nisha and Smt. Shakuntala were tried for the offences under sections 498-A I.P.C. and Section 3/4 of Dowry Prohibition Act, Case Crime No. 175 of 1999. The trial court decided the case convicting all the accused persons for the offences under sections 498-A I.P.C. and section 3/4 of D.P. Act and sentenced them to undergo different span of imprisonment and fine.
ii. The convicts preferred an appeal. During the course of hearing of the appeal, the revisionists-Om Prakash Jain and others informed the appellate court that one of the appellants namely, Sanjay Jain (husband of the victim), has died. On this application, a report was called from the police, who submitted certain papers including death certificate from Nagar Palika Parishad and some medical papers. The victim (wife of Sanjay Jain) filed an application no. 55-B stating therein that her husband is still alive and that forged and fake papers have been given from the side of the appellants so that the case against him is closed.
iii. The learned appellate court went through the papers filed in this regard and considered the contentions of both the sides and concluded as below:-
"?? ?????? ??????? ???????????? ?? ????? ??? ??? ?? ???????? ?? ??????? ??? ?? ???????? ?? ?????? ?????????? ?? ???? ?? ???? ??? ?? ?????? ??????? ???? ?? ?? ?? ??? ???? ?? ?????? ???? ??? ??? ?????? ??? ???? ??? ?? ???? ????? ???? ?? ???????? ???? ???? ????????? ???"
4. From the side of respondent no. 2, it is contended that order is purely interlocutory in nature, therefore criminal revision is not maintainable. In addition, this objection has been raised on behalf of State as well as respondent no. 2 that the instant revisionist do not have any locus standi to assail the order. The respondent no. 2 has cited judgments of the Hon'ble Supreme Court given in Madhu Limaye Vs. The State of Maharashtra in Crl. Appeal No. 81 of 1977 decided on 30.10.1977 and Amar Nath & Others Vs. State of Harayana & Others in Crl. Appeal No. 124 of 1977 decided on 29.07.1977 in this regard.
5. In reply to the above contention, it is stated on behalf of revisionists that they being the parents of Sanjay Jain have tried to bring the true facts before the court so that the appeal can proceed. They may not strictly fall in the category of aggrieved persons, however they can very well point out the mistake if any, has been committed by the trial court or the appellate court and in this view of the matter this revision cannot be thrown out at the very threshold.
6. I went through the impugned order. As far as the fact of death of one of the accused/appellant is concerned, it is a matter of inquiry and in case the court comes to a conclusion that in fact he has died the case against him may abate. There may be cases where the such fact of death is disputed and is contested. In such circumstances, the court has to proceed in a very cautious manner. If the court cannot come to any concrete conclusion, it may register a separate miscellaneous case and proceed to inquire into the facts and direct the authorities concerned to furnish evidence. The appeal cannot be left pending just because a collateral issue or a question of mere procedural importance has cropped up which may demand calling for further evidence and may require inquiry.
7. In such peculiar circumstances it was just not right for the appellate court to presume that the appellant is absconding. It would have been much better if a separate miscellaneous case is instituted to decide upon the fact of death of one of the appellant and to proceed with the appeal of the rests of the appellants. It may be made clear that if at any stage of the proceeding the court concerned finds that forged paper has been submitted before it, then it will be within its power to institute an enquiry under section 340 of Cr.P.C. or file an F.I.R. if found fit in the circumstance of matter.
8. The impugned order is set aside and the learned court below is directed to separate the case of appellant Sanjay Jain and to proceed to inquire into the fact of his death. The appeal of the rest of the appellants (the revisionists in this case) shall proceed as per law.
9. Accordingly, this revision is disposed of.
Order Date :- 25.4.2023
Vibha
