Kishan Lal And Others vs State Of U.P.
2023 Latest Caselaw 25268 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:184426
 

 
REPORTABLE
 

 
Reserved on 12.05.2023
 
Delivered on 19.09.2023
 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 

 

 

 
Krishan Lal And Others			                                        ...Revisionists
 
v/s
 
State of U.P. 		                                                     ...Opposite Parties
 
JUDGMENT

HON'BLE SANJAY KUMAR PACHORI, J.

1. Heard Sri Srijan Pandey, learned counsel for the revisionists and Sri Karunakar Singh, learned A.G.A. for the State are present and perused the material on record. No one has appeared on behalf of the opposite party no. 2, even in the revised call.

2. The Present Criminal Revision has been preferred to set-aside the judgement and order dated 04.06.2009 passed by Additional Sessions Judge Court No. 12, Aligarh in Criminal Appeal No. 87 of 2008 affirming the order dated 10.11.2008 passed by the Additional Sub Divisional Magistrate, Kol, Aligarh in Case No. 17 of 2008, under Section 198-A(2) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (herein after referred as "U.P. Z.A. & L.R. Act") and sentenced the revisionist to undergo imprisonment for six months with fine of Rs. 1,000/-, and in default of payment of fine, one month additional imprisonment.

3. Brief facts of the case are that the first information report dated 23.07.2002 was lodged against the appellants Kishan Lal, Rajpal, Rajvir, Rajendra, Satya Prakash and one Nathi Lal (exonerated by the Investigating Officer) under Section 198-A of the U.P. Z.A. & L.R. Act, on the basis of an application which was moved before the District Magistrate, Aligarh stating that on 10.11.2001 the possession of Gata No. 99 M. Rakba 0.230 hectare of village Lodha, had been given to Dileep Chandra (deceased allottee). He retained the possession for a long time and maintained his family. But on being dispossessed by the accused persons, allottee (deceased) made a complaint to the Revenue Officers. On complaint, the Revenue Inspector, Roshan Lal went to the place on 23.10.2000 and gave the possession to the allottee (Dileep Chandra). Again, allottee had been dispossessed by the accused persons, on which again Revenue Inspector, Roshan Lal gave the possession to the allottee (Dileep Chandra) on 10.04.2001. Then on his information, first information report was registered at Police Station, Lodha. The Investigating Officer after completing the investigation, has exonerated accused Nathi Lal and submitted charge- sheet against the revisionists.

4. In order to prove the prosecution case, two witnesses have been examined PW-1 Roshan Lal (Revenue Inspector) and PW-2 Sukhram (son of the deceased allottee). After examining the prosecution witnesses, statement of the revisionists were recorded under Section 313 of Cr.P.C. wherein they stated that the prosecution evidence is false and they had given evidence due to enmity and they wanted to usurp the land of the revisionists. The revisionists have examined DW-1 Ranvir Singh (Ex Village Pradhan).

5. Learned counsel for the revisionists submits that the findings recorded by the trial court as well as appellate court are perverse and the prosecution has not proved the case against the revisionists. There is no evidence with regard to proving the dispossession of the allottee. No damage had been ascertained against the revisionists by the revenue authorities. It is further submitted that witness of dispossession letters (dakhalnama) have not been summoned. PW-1, who prepared the alleged possession letters (dakhalnama) was not the competent authority.

6. It is further submitted that there is no finding with regard to the fact that any order for eviction was passed by Assistant Collector as per Section 198-A(1) of the U.P. Z.A. & L.R. Act. It is further submitted that as per prosecution case, the son of the allottee was not in possession of the land in question. There is no evidence produced by the prosecution with regard to the fact that Dileep Chandra (deceased) was an allottee of the land in question.

7. It is further submitted that there is material contradiction between the statement of (PW-1) and (PW-2) with regard to possession of the land in question. It is further submitted that the first information report has been lodged on the basis of an order passed by the SSP, Aligarh on complaint of the deceased allottee which was filed before the District Magistrate, who has no authority to pass an order to lodge the report. It is further submitted that the prosecution has not produced original dispossession letters (Dakhalnama) before the trial Court.

8. Before the trial court, the revisionists argued that the prosecution had not proved the original dispossession letters (Dakhalnama) dated 23.10.2000 & 10.04.2001 which were alleged to be prepared/issued by the PW-1 Roshan Lal in favour of Dileep Chandra (deceased allottee). The original dis-possession letters were not produced before the trial Court. There is material inconsistency with regard to giving physical possession of the land in question to the allottee. On the other hand, PW-2 Sukhram stated that he is not in possession of the land today.

9. Per contra, learned A.G.A. has supported judgment and the order passed by the appellate court as well as trial court and vehemently submits that there is no illegality in the impugned judgment and orders.

10. I have heard the submissions made by learned counsel for the revisionists and learned A.G.A. for the State and perused the material on record.

11. Before appreciating the evidence and submissions of the revisionists, it would be appropriate to discuss the scope of invoking the jurisdiction of the High Court in criminal revision against the conviction.

12. The Supreme Court in Raj Kumar v. State of Himachal Pradesh, (2008) 11 SCC 76, observed as under:

"9. In Duli Chand v. Delhi Admn, (1975) 4 SCC 649 the scope of invoking jurisdiction of the High Court in criminal revision was examined and it was held in a case involving vehicular accident as follows: (AIR p. 1960)

The question whether the accused was guilty of negligence in driving the bus and the death of the deceased was caused due to his negligent driving is a question of fact which depends for its determination on an appreciation of the evidence. Where the Magistrate, and the Additional Sessions Judge arrived, on an assessment of the evidence at a concurrent finding of fact that the death of the deceased was caused by negligent driving of the bus by the accused and the High Court even though justified in refusing to re-appreciate the evidence reviewed the same in order to satisfy itself that there was evidence in support of the finding and that the finding was not perverse, came to the conclusion that the evidence established the death of the deceased was caused by the negligent driving of the bus by the accused, the Supreme Court on an appeal under Article 136 refused to interfere.

10. In State of Orissa v. Nakula Sahu, (1979) 1 SCC 328, it was held that the High Court should not have interfered with the concurrent findings recorded by the trial court and the Sessions Judge in exercise of revisional jurisdiction when there was no error or fact or law arrived at by the trial court or the Sessions Judge.

11. In State of Kerala v. Puttumana Illah Jathavedan Namboodiri, (1999) 2 SCC 452, it was held that the revisional 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 reappriciate the evidence and come to its own conclusion on the same unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.

13. In State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand & Others, (2004) 7 SCC 659, the Apex Court has been observed that:

"22. The Revisional Court is empowered to exercise all the powers conferred on the Appellate Court by virtue of the provisions contained in Section 401 CrPC. Section 401 CrPC is a provision enabling the High Court to exercise all powers of an Appellate Court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Sessions Court. Section 397 CrPC confers power 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 passed, 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 powers of an 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."

14. In Krishnan & Another v. Krishnaveni & Another, (1997) 4 SCC 241, the Supreme Court observed as under:

"1. Exercises of the revisional power by the high court under Section 397 read with Section 401 is to call for the records of any inferior Criminal Court and to examine 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 to pass appropriate orders. The Court of Sessions and the Magistrates are inferior criminal courts to the High Court and Courts of judicial Magistrate are inferior criminal courts to the sessions judge. Ordinarily, in the matter of exercise of power of revision by any High Court, Section 397 and  Section 401 are required to be read together. Section 397 gives powers to the High Court to call for the records as also suo motu power under  Section 401 to exercise the revisional power on the grounds mentioned therein, i.e. to examine 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 to dispose of the revision in the manner indicated under Section 401 of the Code. The revisional. power of the high Court merely conserves the power of the high Court to see that justice is done in accordance with the recognised rules of criminal jurisprudence and that its subordinates courts do not exceed the jurisdiction or abuse the power vested in them under the code or to prevent abuse of the process of the inferior criminal courts or to prevent miscarriage of justice."

15. It is well settled principle of law that the inherent as well as revisional jurisdiction should be exercised cautiously. Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. (Vide: Amit Kappor v. Ramesh Chander (2012) 9 SCC 460).

16. It is also well settled principle of law that the findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible evidence. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide: Rajinder Kumar Kindra v. Delhi Administration AIR 1984 SC 1805; H.B. Gandhi & Ors. v. Gopi Nath & Sons 1992 supp. (2) SCC 312; Triveni Rubber & Plastics v. Collector of Central Excise, Cochin AIR 1994 SC 1341; Gaya Din (D) thr. Lrs. & Ors. v. Hanuman Prasad (D) thr. Lrs. & Ors. AIR 2001 SC 386; Aruvelu & Anr. (Supra); and Gamini Bala Koteswara Rao & Ors. v. State of Andhra Pradesh thr. Secretary (2009) 10 SCC 636).

17. Section 198-A(2) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 provides as under:

"198A. Restoration of possession to the allottees of Gaon Sabha or the Government lessee. - (1) Where any person is admitted as a bhumidhar with non-transferable rights of any land, under Section 195, or as an asami of any land, under Section 197, (such person hereinafter referred to in this section as the allottee) or where any land is let out to any person by the State Government (such person hereinafter referred to in this section as the lessee) and any person other than the allottee or lessee is in occupation of such land in contravention of the provisions of this Act, the Assistant Collector may of his own motion and shall on the application of the allottee or lessee, as the case may be, put him in possession of such land and may, for that purpose, use or cause to be used such force as he considers necessary.

[(1-A) Where any person, after being evicted under sub-section (1), reoccupies the land or any part thereof without lawful authority, the Assistant Collector shall, without prejudice to the proceeding under sub-section (2), direct such person to pay such damages to the allottee as he thinks fit considering the location and potentiality of the land and such other factors as may have bearing on the subject:

Provided that the amount of the damages shall not be less than five thousand rupees [and more than] fifteen thousand rupees per hectare per year.

(1-B) A person aggrieved by an order of the Assistant Collector under subsection (1-A) may, within thirty days of such order, prefer an appeal before the Collector in such manner as may be prescribed and the order of the Collector shall be final.

(1-C) If the person directed to pay damages by the Assistant Collector under sub-section (1-A) or, by the Collector if an appeal is preferred under sub-section (1-B), fails to pay the same within the time fixed by the Assistant Collector or the Collector, as the case may be, it shall be recovered as arrears of land revenue and paid to the allottee.]

(2) Where any person, after being evicted under this section, re-occupies the land or any part thereof without lawful authority, he shall be punishable with imprisonment for a term which may extend to two years but which shall not be less than three months and also with fine which may extend to three thousand rupees :

Provided that the Court convicting the accused may, while passing the sentence direct that the whole or such portion of the fine that may be recovered as the Court considers proper be paid to the allottee or lessee, as the case may be, as damages for use and occupation.

(3) Where in any proceeding under sub-section (2), the Court, at any stage after cognizance of the case, has been taken, is satisfied by affidavit or otherwise that-

(a) the accused is in occupation of the land to which such proceeding relates, in contravention of the provisions of this Act; and

(b) the allottee or lessee, as the case may be, is entitled to the possession of such land, the Court may summarily evict the accused from such land pending the final determination of the case and may put the allottee or lessee, as the case may be, in possession of such land.

(4) Where in any proceeding under sub-section (2), the accused is convicted, the interim order passed under sub-section (3) shall be confirmed by the Court.

(5) Where in any proceeding under sub-section (2), the accused is acquitted or discharged and the Court is satisfied that the person so acquitted or discharged is entitled to be put back in possession over such land, the Court shall, on the application of such person, direct that delivery of possession be made to him.

(6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, offence under sub-section (2) may be tried summarily.

(7) For the purpose of speedy trial of offence under this section, the State Government may, in consultation with the High Court, by notification, constitute special Courts consisting of an officer not below the rank of Sub-Divisional Magistrate, which shall subject to the provisions of the Code of Criminal Procedure, 1973, exercise in relation to such offences the powers of a Judicial Magistrate of the First Class.

(8) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence punishable under sub-section (2) shall be cognizable and non-bailable.

18. Sub-section 1 of Section 198-A of U.P. Z.A. & L.R. Act, provides that any person other than the allottee or lessee found in possession, the Assistant Collector may on his own motion and shall on the application of the allottee or lessee, as the case may be, put him in possession of such land.

19. Sub-section 1-A of Section 198-A of the U.P. Z.A. & L.R. Act provides that where any person, after being evicted under sub-section (1), reoccupies the land or any part thereof without lawful authority, the Assistant Collector direct such person to pay such damages to the allottee as he thinks fit. Provided that the amount of the damages shall not be less than five thousand rupees.

20. Sub-section 2 of Section 198-A of the U.P. Z.A. & L.R. Act provides that where any person, after being evicted, re-occupies the land or any part thereof without lawful authority, he shall be punishable with imprisonment for a term which may extend to two years but which shall not be less than three months and also with fine which may extend to three thousand rupees.

21. PW-1 Roshan Lal (Revenue Inspector) stated in his examination-in-chief that on 10.04.2001 after dispossession from the land in question, dispossession letter (dakhalnama) was prepared in favour of allottee (father of the PW-2).

22. PW-1 Roshan Lal stated in his cross-examination that on 23.10.2000 and 10.04.2001 the possession of land in question was given to the deceased allottee. Further, he stated that at the time of inspection, the portion was found partially occupied and the remaining portion was found open. He did not remember that at the time of an inspection crop had been sowed or not, also the deceased allottee complains to the higher revenue authorities and further stated that he cannot verbally disclose as to how much portion of the disputed land belongs to the accused person.

Having gone through the evidence of PW-1 following facts emerged:

(i) On 10.04.2001, this witness prepared document (dispossession letter) in favour of the deceased allottee Dileep Chandra and after that again dispossessed the accused persons;

(ii) This witness prepared dispossession letter dated 10.04.2001;

(iii) The first dispossession letter dated 23.10.2000 is a photostat copy.

23. PW-2 Sukhram (son of the deceased allottee) stated in his examination-in-chief that in the year of 2000, the accused persons Nathi Lal Sharma, Kishan Lal, Rajpal, Rajvir, Rajendra and Satya Prakash after dismantling the boundary of the land in question' dispossessed the allottee. Again in the year 2000-2001 the revenue officers gave possession to his father and prepared dispossession letter. He further stated that even today he is not in possession of land in question.

24. PW-2 in his cross-examination briefly stated that the lease of the land in question was allotted to his father in the year of 1975. The land, which is adjoining to the land in question, belongs to Nathi Lal. At the time of re-possession of the land in question, his father was bhumidhar of the land. The defence asked suggestions that i.e., it is wrong to say that the possession has never given to his father and forged dispossession letters were prepared in connivance of Lekhpal and Revenue Inspector.

Having gone through the evidence of this witness, it is significant that the land in question and land of the accused Nathi Lal are adjacent and Nathi Lal had been exonerated by the Investigating Officer and no protest petition was filed by the first informant.

It is also noteworthy that the allottee neither said anything nor made any complaint regarding dispossession from the land in question after 10.04.2001.

25. The appellate court has not recorded any finding with regard to contradiction between the evidence of PW-1 Roshan Lal and PW-2 Sukhram, wherein PW-1 stated that on 10.04.2001, the possession of land was given to the allottee Dileep Chandra (deceased) and he prepared dispossession letter, whereas on the other hand PW-2 Sukhram stated that he is not in possession of the land in question.

26. Having gone through the evidence produced by the prosecution, the son of the allottee is not in possession of the land in question after 10.04.2021.

(ii) Original dispossession letters dated 23.10.2000 and 10.04.2001 respectively have not been proved by the prosecution.

(iii). Dispossession letters (Dakhalnama) dated 23.10.2000 & 10.04.2001 were not prepared by the Assistant Collector as provided in sub-section 1 of Section 198-A of U.P. Z.A. & L.R. Act.

(iv) As per evidence of PW-2, one Nathi Lal, who has been exonerated by the Investigating Officer, had dismantled the ram (मेढ़) of his land.

(v) In the present case, no damage was ascertained by the Assistant Collector as provide under sub-section 1-A of Section 198-A of U.P. Z.A. & L.R. Act.

(vi) There is no evidence with regard to the fact that Dileep Chandra (deceased allottee) was an allottee of the land in question.

(vii) There is material contradiction between the statement of PW-1 and PW-2 with regard to possession of letter in question after 10.04.2001. PW-1 stated that he had given to the possession of the land in question after dispossessing the accused/ revisionists, whereas, PW-2 stated that he is not in possession of the land in question.

27. The contrary view taken by the trial court is against the weight of the evidence. I hardly find objective evaluation, analysis, or scrutiny of evidence in a proper perspective. The serious infirmities pointed out by the defence raising doubt with regard to the prosecution case have been brushed aside by the learned trial judge. The trial court, in my view, was not right and justified in lightly brushing aside the contradictions and omissions borne out from the prosecution evidence, that too, when the entire prosecution rested on witness, PW-1 Roshan Lal (Revenue Inspector) and PW-2 Sukhram (son of the deceased allottee).

28. For all the reasons recorded and discussed above, I am of the considered view that the prosecution has failed to prove the charge of offence punishable under Section 198-A of U.P. Z.A. & L.R. Act against the revisionists Kishan Lal, Rajpal, Rajveer, Rajendra and Satya Prakash, beyond reasonable doubt. As the evidence on record does not bring home the guilt of the revisionists beyond the pale of doubt, the revisionists are entitled to the benefit of doubt. Consequently, the revisionists are entitled to be acquitted of the charge for which they were tried.

29. As a result, criminal revision is allowed. The judgment and order dated 10.11.2008 passed by Additional Sub Divisional Magistrate Kol, Aligarh and order dated 04.06.2009 passed by the Appellate Court are set-aside. The revisionists are acquitted of all the charges. The revisionists are on bail, therefore, their personal bonds and sureties are hereby discharged. The revisionists Kishan Lal, Rajpal, Rajveer, Rajendra and Satya Prakash, will fullfil the requirement of section 437-A Cr.P.C. to the satisfaction of the trial Court at the earliest.

30. The trial court record be returned forthwith together with a certified copy of this judgment for compliance. The office is further directed to enter the judgment in compliance register maintained for the purpose of the Court.

(Sanjay Kumar Pachori, J.)

Dated: 19.9.2023

Ishan