Shyamveer Singh vs State Of U.P. And Another
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Allahabad High Court

Shyamveer Singh vs State Of U.P. And Another on 23 May, 2024

Author: Rajeev Misra

Bench: Rajeev Misra

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:93629
 
Court No. - 77
 

 
Case :- CRIMINAL REVISION No. - 4841 of 2023
 

 
Revisionist :- Shyamveer Singh
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Revisionist :- Dharmendra Kumar Singh
 
Counsel for Opposite Party :- Agnivesh,G.A.,Jadu Nandan Yadav
 

 
Hon'ble Rajeev Misra,J.
 

1. Heard Mr. Dharmendra Kumar Singh, the learned counsel for revisionist, the learned A.G.A. for State-opposite party-1 and Mr. Agnivesh, the learned counsel representing opposite party-2.

2. Perused the record.

3. This criminal revision has been filed challenging the judgment and order dated12.06.2023 passed by Special Judge, POCSO Act/Additional Sessions Judge, Farrukhabad in Criminal Appeal No. 12 of 2023 (Juvenile 'S' Vs. State of U.P. and Another), whereby aforementioned criminal appeal arising out of the judgment and order dated 23.01.2023 passed by Juvenile Justice Board, Farrukhabad in Criminal Case No. 182 of 2005 (State of U.P. Vs. Juvenile 'S') arising out of Case Crime No. 160 of 1995, under Sections 325, 506 IPC, Police Station-Kamalganj, District-Farrukhabad, whereby the accused has been convicted under Sections 325, 506 IPC and consequently, sentenced to 3 years imprisonment along with fine of Rs. 5,000/-, under Section 325 IPC and one year imprisonment along with fine of Rs. 1,000/-, under Section 506 IPC, has been allowed and the accused juvenile 'S' has been acquitted of the charges alleged against him.

4. Present criminal revision came up for admission on 03.01.2024 and this Court passed the following order:-

"Heard learned counsel for the revisionist, learned AGA for the State and learned counsel for the opposite party no. 2.

The present criminal revision has been filed by the revisionist against the judgement and order dated 12.06.2023 passed by learned Special Judge, POCSO Act/Additional Session Judge, Farrukhabad in Criminal Appeal No. 12 of 2023 (Juvenile 'S' vs. State of U.P. and another) arising out of Criminal Case No. 182 of 2005 arising out of Case Crime No. 160 of 1995, under Sections 325, 506 IPC, Police Station Kamalganj, District Farrukhabad acquitting the opposite party no. 2.

Learned counsel for the opposite party no. 2 has raised a preliminary objection on the maintainability of the present criminal revision against the order impugned on the ground that order of acquittal cannot be challenged under Section 401 Cr.P.C. as it prohibits/bars the High Court to convert a finding of acquittal into one of conviction.

However, learned counsel for the revisionist has cited the law laid down by Hon'ble the Apex Court in Joseph Stephen and others vs. Santhanasamy and others, 2022 0 Supreme (SC) 43 wherein it has been held that in a case where the finding of acquittal is recorded on account of misreading of evidence or non-consideration of evidence or perverse appreciation of evidence, nothing prevents the High Court from setting aside the order of acquittal at the instance of the informant in revision and directing fresh disposal on merit by the trial court. In the event of such direction, the trial court shall be obliged to reappraise the evidence in light of the observation of the Revisional Court and take an independent view uninfluenced by way of the observations of the Revisional Court on the merit of the case. By way of abundant caution, we may herein observe that interference with the order of acquittal in revision is called for only in cases where there is manifest error of law or procedure and in those exceptional cases in which it is found that the order of acquittal suffers from glaring illegality, resulting into miscarriage of justice. The High Court may also interfere in those cases of acquittal caused by shutting out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue has been overlooked. In such an exceptional case, the High Court in revision can set aside an order of acquittal but it cannot convert an order of acquittal into that of an order of conviction. The only course left to the High Court in such exceptional cases is to order retrial.

In the light of the aforesaid judgement, the criminal revision is maintainable under Section 401 Cr.P.C. against an order of acquittal as observed aforesaid.

Let the counter affidavit and rejoinder affidavit be exchanged between the parties within four weeks.

List this matter on 06.02.2024 as fresh."

5. Mr. Dharmendra Kumar Singh, the learned counsel for revisionist submits that the order impugned in present criminal revision is manifestly illegal, therefore, the same is liable to be set aside by this Court. According to the learned counsel for revisionist, admittedly, the Trial Court vide judgment and order dated 23.01.2023, upon due appraisal and appreciation of the evidence on record had convicted the accused juvenile. The Court below without setting aside the findings recorded by the Trial Court has set aside the judgment and order passed by the Trial Court simply on the ground that it has another view of the matter. The judgment passed by the Trial Court cannot be set aside simply on the aforesaid ground. The Appellate Court while reversing the judgment of the Trial Court, has to point out the illegality committed by the Trial Court and only thereafter, the judgment rendered by the Trial Court can be set aside. On the above premise, he, therefore, contends that the impugned judgment and order passed by Court below cannot be sustained and therefore, liable to be set aside by this Court.

6. Per contra, the learned A.G.A. for State-opposite party-1 and Mr. Agnivesh, the learned counsel representing opposite party-2 have vehemently opposed the present criminal revision. They submit that the order impugned in present criminal revision is perfectly just and legal. Consequently, the same is not liable to be interfered with by this Court.

7. It is then contended by the learned A.G.A. that the Appellate Court has set aside the judgment and order dated 23.01.2023 passed by the Trial Court by giving cogent findings. The findings returned by Court below, which are discernible from the document occurring at page 21 of the paper book i.e. internal page 11 of the certified copy of the order impugned could not be dislodged by the learned counsel for revisionist as being illegal, perverse or erroneous. Once the findings returned by Court below in support of the conclusion drawn by it could not be dislodged, the conclusion cannot be altered. He, therefore contends that no question of law is involved in present criminal revision so as to warrant interference by this Court. The revision is concluded by findings of fact and therefore, liable to be dismissed by this Court.

8. Having heard the learned counsel for revisionist, the learned A.G.A. for State-opposite party-1, the learned counsel representing opposite party-2 and upon perusal of record, this Court finds that the following issues are involved in present criminal revision is;- (A) parameters of review in exercise of revisional jurisdiction, (B) whether the reasonings/findings returned by Court below for setting aside the judgment of the Trial Court are sustainable in law. Issue No. 1 involved in present criminal revision need not detain this Court inasmuch as, the same has been effectively dealt with by a learned Single Judge of this Court in Criminal Revision No. 4257 of 2005 (Deepak Kumar V. State of U.P.) decided on 05.08.2016. Paragraphs 5, 6, 7, 8, 9, 10, 11 and 12 of the report are relevant for the controversy in hand. The same are accordingly reproduced herein under:-

"5. The judicial review in exercise of revisional jurisdiction is not like an appeal. It is a supervisory jurisdiction which is exercised by the Court to correct the manifest error in the orders of subordinate courts but should not be exercised in a manner so as to turn the Revisional court in a Court of Appeal. The legislature has differently made provisions for appeal and revision and the distinction of two jurisdictions has to be maintained.

6. Construing old Section 439 of Criminal Procedure Code, 1898, pertaining to revisional jurisdiction, the Court in D. Stephens Vs. Nosibolla, AIR 1951 SC 196 said that revisional jurisdiction under Section 439 of the Code ought not to be exercised lightly particularly when it is invoked by private complainant against an order of acquittal which could have been appealed against by the Government under Section 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. In other words, the revisional jurisdiction of the High Court cannot be invoked merely because the lower court has taken a wrong view of law or misappreciated the evidence on record.

7. In K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, AIR 1962 SC 1788 it was held that revisional jurisdiction should be exercised by the High Court in exceptional cases only when there is some glaring defect in the procedure or a manifest error on a point of law resulting in flagrant miscarriage of justice. However, this was also a case in which revisional jurisdiction was invoked against an order of acquittal. If the Court lacks jurisdiction or has excluded evidence which was admissible or relied on inadmissible evidence or material evidence has been overlooked etc., then only this Court would be justified in exercising revisional power and not otherwise.

8. The above view has been reiterated in Mahendra Pratap Singh Vs. Sarju Singh, AIR 1968 SC 707; Khetrabasi Samal Vs. State of Orissa, AIR 1970 SC 272; Satyendra Nath Dutta and another Vs. Ram Narain, AIR 1975 SC 580; Jagannath Choudhary and others Vs. Ramayan Singh and another, 2002(5) SCC 659; and, Johar and others Vs. Mandal Prasad and another, 2008 Cr.L.J. 1627 (S.C.).

9. In Duli Chand Vs. Delhi Administration, 1975(4) SCC 649 the Court reminded that jurisdiction of High Court in criminal revision is severely restricted and it cannot embark upon a re-appreciation of evidence. While exercising supervisory jurisdiction in revision the Court would be justified in refusing to re-appreciate evidence for determining whether the concurrent findings of fact reached by learned Magistrate and Sessions Judge was correct.

10. In Pathumma and another Vs. Muhammad, 1986(2) SCC 585 reiterating the above view the Court said that in revisional jurisdiction the High Court would not be justified in substituting its own view for that of a Magistrate on a question of fact.

11. In Munna Devi Vs. State of Rajasthan and another, 2001(9) SCC 631 the Court said:

"The revision power under the Code of Criminal procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the First Information Report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged."

12. In Ram Briksh Singh and others Vs. Ambika Yadav and another, 2004(7) SCC 665, in a matter again arising from the judgment of acquittal, the revisional power of High Court was examined and the Court said:

"4. Sections 397 to 401 of the Code are group of sections conferring higher and superior courts a sort of supervisory jurisdiction. These powers are required to be exercised sparingly. Though the jurisdiction under Section 401 cannot be invoked to only correct wrong appreciation of evidence and the High Court is not required to act as a court of appeal but at the same time, it is the duty of the court to correct manifest illegality resulting in gross miscarriage of justice."

9. In so far as the second issue is concerned, this Court finds that Court below has set aside the judgment of the Trial Court on the following grounds;-

(A). there is civil dispute pending between the parties and on account of above, false implication of the juvenile in the crime in question cannot be ruled out.

(B). the written report given by the first informant, which is the basis of present criminal prosecution, was not produced in original before the Trial Court, the copy of the same, which has been admitted by the second party has not been duly constituted.

(C). though it has been alleged by the prosecution that the juvenile caused injury to the victim Sachin Kumar in his eyes but no documentary evidence has been filed regarding the same. The juvenile is hale and hearty and his eye sight in both the eyes is perfectly correct. PW-1 Naurang in his deposition has stated that the juvenile caused injury in the right eye of the injured Sachin Kumar, whereas, PW-3 Shyamveer in his statement has stated that injury was caused in the left eye of the injured.

(D). though it is alleged by the prosecution that on account of injury caused by juvenile, there was bleeding in the eye of injured Sachin Kumar but no documentary evidence has been filed regarding the injury sustained by the injured.

(E). except for the medical certificate, no document pertaining to the medication/medical prescription of the injured has been brought on record.

10. It is on the strength of aforesaid findings that Court below has set side the judgment and order dated 23.01.2023 passed by the Trial Court. The learned counsel for revisionists in spite of his vehement effort cannot dislodge the said findings recorded by Court below in support of it's conclusion to acquit the juvenile. As such, the reasonings recorded by Court below remain intact. It is well settled that if the findings/reasonings cannot be dislodged, the conclusion cannot be altered.

11. Having heard the learned counsel for revisionist, the learned A.G.A. for State-opposite party-1, the learned counsel representing opposite party-2 and upon perusal of record, this Court finds that present criminal revision is concluded by findings of fact, which could not be dislodged by the learned counsel for revisionist. As such, Court below while passing the order impugned has neither committed ajurisdictional error nor has it exercised it's jurisdiction with such material irregularity so as to vitiate the order impugned and warrant interference by this Court.

12. In view of above, the present criminal revision fails and is liable to be dismissed.

13. It is, accordingly, dismissed.

Order Date :- 23.5.2024

Vinay