Himachal Pradesh High Court

Nikka Ram And Another vs Roshni Devi And Anotherrt on 9 January, 2024

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Revision No. 413 of 2023

Reserved on: 08.12.2023

Date of Decision: 09.01.2024.

Nikka Ram and another ...Petitioners

of Versus

Roshni Devi and anotherrt ...Respondents

Coram

Hon'ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No.

For the Petitioners : Mr. Mohd. Amir, Advocate.

For the Respondents : Ms. Tanu Sharma, Advocate, Legal Aid Counsel for respondent No.1.

Ms. Avni Kochhar, Deputy

Advocate General, for respondent No.2-State.

Rakesh Kainthla, Judge

The present revision is directed against the order

passed by learned Additional Sessions Judge, Hamirpur, Circuit

Court at Barsar, vide which the application for condonation of

delay was allowed.

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

2. It is asserted that respondent No.1-informant lodged

an FIR No. 23 of 2016 with the Police Station Barsar. The police

filed charge sheet in the Court of learned Judicial Magistrate

First Class (JMFC), Barsar. The accused faced trial and they were

acquitted by the learned Trial Court. Respondent No.1-

informant filed an appeal against the judgment passed by

of learned JMFC, Barsar. She also filed an application for

condonation of delay. The accused contested the application by rt filing a reply. Learned Additional Sessions Judge, Hamirpur,

Circuit Court at Barsar allowed the application vide order dated

12.7.2023. Learned Additional Sessions Judge failed to appreciate

the facts and circumstances of the case. Learned First Appellate

Court heavily relied upon the application and the affidavit and

did not rely upon the cross-examination and admission made by

the informant during her cross-examination. The informant

admitted that she was at her home from 24.1.2020 till 9.3.2020.

She also stated that she was at Jalandhar in MAX Hospital which

is not possible. The husband of the informant was discharged on

1.2.2020 and the delay in filing the appeal was due to the lapse

and inaction on the part of the informant. Therefore, it was

prayed that the present petition be allowed and the order passed

by the learned Additional Sessions Judge be set aside.

3. I have heard Mr Mohammad Amir, learned Counsel

for the petitioners, Mr Tanu Sharma, learned Legal-Aid Counsel

for respondent No.1 and Ms Avni Kochhar, learned Deputy

Advocate General for respondent No.2-State.

4. Mr. Mohammad Amir, learned Counsel for the rt petitioners submitted that the learned First Appellate Court

erred in allowing the application and condoning the delay. The

informant had failed to show sufficient cause for condonation of

delay. She was at home as per her admission and should have

filed the appeal within time. She failed to file an appeal within

time. Therefore, it was prayed that the present revision be

allowed and the order passed by the learned First Appellate

Court be set aside.

5. Ms. Tanu Sharma, learned Legal Aid Counsel for

respondent No.1 supported the order passed by the learned First

Appellate Court and submitted that there is no infirmity in the

same. The husband of the informant was ill and she was at home

taking care of him. He was critically ill as is evident from the fact

that he died subsequently. She had a sufficient cause and learned

First Appellate Court had rightly condoned the delay.

6. Ms. Avni Kochhar, learned Deputy Advocate General

for the respondent No.2-State submitted that an appropriate

order be passed.

7. I have given considerable thought to the submissions

at the bar and have gone through the records carefully.

8. rt The informant supported her case by way of her

proof affidavit. She stated in her cross-examination that she

used to update herself regarding the progress of the case. She

volunteered to say that her son used to update her regarding the

case. She did not remember the date of receipt of intimation

from the State that no appeal was being filed by the State. She

did not remember the date of obtaining the certified copy of the

decision of the learned Trial Court. She could not say that she

had received a certified copy in January 2020. She was in her

home from 24.1.2020 till 9.3.2020. She volunteered to say that

her husband was ill and she was in Jalandhar Hospital. Her son

and daughter-in-law accompanied her but they had returned.

She remained in the hospital with her husband. She denied that

she filed a false case to save herself from the civil suit for

damages.

9. Heavy reliance was placed upon the cross-

examination of this witness, wherein she admitted that she was

at home from 24.1.2020 to 9.3.2020. The learned First Appellate

Court had rightly observed that the informant's husband died

of subsequently and he was treated at Care MAX hospital in rt Jalandhar. Being a wife she was busy in taking care of her

husband. Even if he was at home, the informant would have been

taking care of her husband who was critically ill rather than

running to the Court to file an appeal. Hence, the learned First

Appellate Court had rightly held that the applicant had

succeeded in establishing a sufficient cause.

10. The medical record shows that the husband of the

informant was admitted on 24.1.2020 and was discharged on

26.1.2020. He was again admitted on 30.1.2020 and was

discharged on 1.2.2020. He was treated at Civil Hospital, Barsar

on 14.2.2020. OPD procedure was carried out on 9.3.2020. This

clearly shows that he was under treatment and was being treated

in different hospitals. The petitioners never appeared before the

learned First Appellate Court to state that the informant's

husband was hale and hearty and did not require any care and

attention from any person. Hence, the learned First Appellate

Court had rightly accepted the plea of the informant that she had

sufficient cause.

11. It was laid down by the Hon'ble Supreme Court in

of State of Gujarat v. Dilipsinh Kishorsinh Rao, 2023 SCC OnLine SC rt 1294 that the revisional court does not sit in appeal over the

order sought to be revised and only examines the legality or

regularity of the procedure. It was observed:

13. The power and jurisdiction of the Higher Court under Section 397 Cr. P.C. which vests the court with the power to call for and examine records of an inferior court is for the

purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The

object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept into such proceedings. It would be apposite to refer to

the judgment of this court in Amit Kapoor v. Ramesh Chandra, (2012) 9 SCC 460 where the scope of Section 397 has been considered and succinctly explained as under:

"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bear a token

of careful consideration and appear to be in accordance with the law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be

invoked where the decisions under challenge are grossly

erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised

arbitrarily or perversely. These are not exhaustive classes but are merely indicative. Each case would have to be determined on its own merits.

13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or rt interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to

injustice ex-facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the exercise of its revisional

jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much- advanced stage in the proceedings under the CrPC."

14. This Court in the aforesaid judgment has also laid down

principles to be considered for the exercise of jurisdiction under Section 397 particularly in the context of prayer for quashing of charge framed under Section 228 Cr. P.C. is

sought for as under:

"27. Having discussed the scope of jurisdiction under these two provisions i.e. Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered

for the proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the

.

Code or together, as the case may be:

27.1. Though there are no limits to the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be

exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code

of should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 27.2. The Court should apply the test as to whether the rt uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the

allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a

criminal offence are not satisfied then the Court may interfere.

27.3. The High Court should not unduly interfere. No

meticulous examination of the evidence is needed for considering whether the case would end in conviction

or not at the stage of framing of charge or quashing of charge.

27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even

broadly satisfied, the Court should be more inclined to permit the continuation of prosecution rather than its quashing at that initial stage. The Court is not

.

expected to marshal the records with a view to

deciding admissibility and reliability of the documents or records but is an opinion formed prima facie."

15. The revisional court cannot sit as an appellate court

and start appreciating the evidence by finding inconsistency in the statement of witnesses and it is not legally permissible. The High Courts ought to be

of cognizant of the fact that trial court was dealing with an application for discharge."

12. There is no infirmity in the procedure adopted by the rt learned First Appellate Court. Hence, no interference is required.

13. In view of the above, the present petition fails and is

dismissed.

14. The observation made herein before shall remain

confined to the disposal of the petition and will have no bearing,

whatsoever, on the merits of the case.

(Rakesh Kainthla)

Judge 9th January, 2024 (Chander)