Shiv Shankar vs The State Of Madhya Pradesh
2023 Latest Caselaw 14433 MP

                                                  Cr.R. No. 542/2016

      IN THE HIGH COURT OF MADHYA PRADESH
                 AT JABALPU R
                           BEFORE
             JUSTICE ACHAL KUMAR PALIWAL

             CRIMINAL REVISION No.542 OF 2016


BETWEEN:-

1.    SHIV SHANKAR S/O NILAMBAR KRISHNA
      DUBEY,      AGED ABOUT 35 YEARS, R/O PALI
      PROJECT P.S.     PALI  UMARIA   (MADHYA
      PRADESH).
2.    RAMASHANKAR S/O NILAMBAR KRISHNA
      DUBEY, AGED ABOUT 28 YEARS, PALI PROJECT
      P.S. PALI UMARIA (MADHYA PRADESH).
3.    KAMLA BAI W/O NILAMBAR KRISHNA DUBEY,
      AGED ABOUT 66 YEARS,      PALI   PROJECT
      P.S. PALI UMARIA (MADHYA PRADESH).


                                                  .....PETITIONERS

(BY SHRI CHANDRAHAS DUBEY - ADVOCATE)

AND

1.    THE STATE OF MADHYA PRADESH THROUGH
      P.S. PALI UMARIA (MADHYA PRADESH).

2.    PRATIBHA CHATURVEDI W/O SHIVSHANKAR
      DUBEY D/O SHYAMLAL CHATURVEDI, AGED
      ABOUT 45 YEARS, OCCUPATION: TEACHER IN
      GOVERNMENT       SECONDARY      SCHOOL
      BARBSPUR    R/O    CURRENT     ADDRESS
      BARBSAPUR,ANUPPUR PIN CODE 484224,
      PERMANENT ADDRESS WARD NO 23, PILIYAS
      NO 2, POST OFFICE DHANPURI DISTRICT
      SHAHDOL    PINCODE    484114  (MADHYA
      PRADESH).

                                              .... RESPONDENTS

(BY DINESH PATEL - DEPUTY GOVERNMENT ADVOCATE AND
                                                                   Cr.R. No. 542/2016

NONE FOR THE RESPONDENT NO.2)
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Reserved on            :      24.08.2023
Pronounced on          :      04.09.2023
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       This criminal revision having been heard and reserved for order,
coming on for pronouncement this day, Justice Achal Kumar Paliwal
pronounced the following:


                                    ORDER

This criminal revision under Section 397/401 of Cr.PC. has been preferred against the judgment dated 21.01.2016 passed by learned Second Additional Sessions Judge, Umaria in Criminal Appeal No.62/2009 (Shiv Shankar and others Vs. State of MP), whereby judgment dated 28.11.2007, passed by the learned Chief Judicial Magistrate in Criminal Case No. 266/1999 convicting the petitioners for commission of offence under Section 498-A/34 of IPC has been affirmed but sentence of 2 years RI and fine of Rs.1000/- with default stipulation has been modified & petitioners have been sentenced to imprisonment till rising of court & fine enhanced to Rs. 5,000/- with default stipulation.

2. Brief facts relevant for the disposal of present revision are that complainant Pratibha Dubey lodged a written report against the petitioners with respect to demand of dowry and harassment and on the basis of written report lodged by complainant, FIR under Section 498- A/34 of IPC was registered against the petitioners and co-accused persons and after investigation, charge sheet was filed against Cr.R. No. 542/2016

petitioners and co-accused persons under Section 498-A/34.

3. Learned trial Court vide judgment dated 28.11.20007 passed in Criminal Case No. 266/1999 (State of MP Vs. Shivshankar and others), after evaluation of evidence, found petitioners to have committed offence under Section 498-A/34 of IPC and sentenced them as above. Against the above judgment, petitioners filed an appeal and learned appellate Court, vide judgment dated 21.01.2016 passed in Cr.A. No. 62/2009, dismissed the appeal of petitioners and affirmed the trial Court's judgment with respect to conviction but modified the sentence as above. Against this, petitioners have preferred present revision.

4. I have heard both the parties and perused the record of the case. Scope of Revision u/s 397 & 401 of CrPC:-

5. Before analyzing the facts of the case on merits, it would be appropriate to examine the scope & ambit of criminal revision/powers of court u/s 397 & 401 of CrPC. In this connection, I would like to refer decisions of Hon'ble apex court in State Vs. R. Soundirarasu , AIR 2022 SC 4218, State of Maharashtra vs. Jagmohan Singh Kuldip Singh Anand, (2004) 7 SCC 659 & Duli Chand v. Delhi Administration, (1975) 4 SCC 649 (3-Judge Bench).

6. In Duli Chand (supra),Hon'ble apex court has held as under:-

"5.........The High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing to re- appreciate the evidence for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned Additional sessions Judge was correct. But even so, the High Court reviewed the evidence presumably for the purpose of satisfying itself that there was evidence in support of the finding of fact reached by the two subordinate courts and that the finding of fact was not unreasonable or perverse. ....."

Cr.R. No. 542/2016

7. In R. Soundirarasu (supra),Hon'ble apex court has held as under:-

"75. In Munna Devi v. State of Rajasthan & Anr., (2001) 9 SCC 631: (AIR 2002 SC 107: 2002 cri LJ 225 (SC)), this Court held as under:-

"3.....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."

76. Thus, the revisional power cannot be exercised in a casual or mechanical manner. It can only be exercised to correct manifest error of law or procedure which would occasion injustice, if it is not corrected. The revisional power cannot be equated with appellate power. A revisional court cannot undertake meticulous examination of the material on record as it is undertaken by the trial court or the appellate court. This power can only be exercised if there is any legal bar to the continuance of the proceedings or if the facts as stated in the charge-sheet are taken to be true on their face value and accepted in their entirety do not constitute the offence for which the accused has been charged. It is conferred to check grave error of law or procedure."

8. In Jagmohan Singh Kuldip Singh Anand (supra), Hon'ble apex court has held as under:-

"21. In embarking upon the minutest re-examination of the whole evidence at the revisional stage, the learned Judge of the High Court was totally oblivious of the self- restraint that he was required to exercise in a revision under Section 397 Cr.P.C. On behalf of the accused, reliance is placed on the decision of this Court to which one of us (Justice Sabharwal) is a party, i.e. Criminal Cr.R. No. 542/2016

Appeal No. 523 of 1997 decided on 9.3.2004 [Ram Briksh v. Ambika Yadav]. That was the case in which the High Court interfered in revision because material evidence was overlooked by the courts below.

22.The Revisional Court is empowered to exercise all the powers conferred on the Appellate Court by virtue of the provisions contained in Section 410 Cr.P.C. Section 401 Cr.P.C. is a provision enabling the High Court to exercise all powers of 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 Cr.P.C. 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 Cr.P.C. conferring powers of Appellate Court on the Revisional Court is with the above limited purpose. The provisions contained in Section 395 to Section 401 Cr.P.C., read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power."

Findings:-

9. Now in the light of above legal parameters, I will examine facts of the instant case.

10. Grounds taken by the petitioners in their revision petition and submissions made by learned counsel for the petitioners reveal that their primary thrust is that there is no evidence with respect to cruelty/harassment in the evidence adduced by the prosecution and there are only omnibus and general allegations with respect to cruelty/harassment and there is no specific evidence with respect to above.

11. Now, I will examine whether there is any legal/cogent/specific Cr.R. No. 542/2016

evidence with respect to cruelty/harassment of complainant by the petitioners in relation to demand of dowry etc. In this connection, I will refer relevant depositions of prosecution witnesses. Complainant Pratibha Dubey (PW-1) has deposed in her examination-in-chief that her mother-in-law Kamla Devi starting harassing (Paresan) and used to run after him to throttle her neck. When she lived in her in-laws' house, then, her mother-in-law & sister-in-law used to harass (paresan) her. Her mother-in-law was strangulating her from behind. She used to tell her father, mother and brother in her parents house about accused persons' act. Thus, examination-in-chief of complainant Pratibha itself reveal that complainant has stated nothing against the petitioner No.1 Shiv Shankar and petitioner No.2 Ramashankar and sister-in-law has been acquitted by the trial Court itself.

12. Prosecution witness Anil Kumar Chaturvedi (PW-2) has deposed in his examination-in-chief that his sister used to tell him that sister-in- law and brother-in-law also harass (paresan) and this witness has stated in para-3 of his cross-examination that his sister had not told him that her sister-in-law used to harass (paresan). Accused Ram Lakhan did not harass (paresan). Thus, Anil Kumar Chaturvedi (PW-2) has not specifically stated in his deposition that her sister used to tell him that present petitioners harass (paresan) him. Thus, this witness has also stated nothing about petitioners specifically in his deposition.

13. Shyamlal Sharma (PW-3) father of complainant, has stated in his examination-in-chief that accused persons used to harass (Tang) his daughter in relation to dowry. Pratibha had told about harassment (Paresan) by Anil. Prosecution witness Ruchila Chaturvedi (PW-4), mother of complainant, has stated in his examination-in-chief that after Cr.R. No. 542/2016

second vida, accused started harassing (Paresan) her daughter.

14. Thus, depositions of complainant Pratibha's brother Anil Kumar Chaturvedi, father Shyamlal Chaturvedi and mother Ruchila Chaturvedi reveal that they have not specifically stated in their depositions about how and in what way petitioners used to harass (Paresan/tang) complainant Pratibha. No specific act of harassment/nature of harassment is mentioned in the testimonies of above witnesses. Complainant Pratibha's brother Anil Kumar Chaturvedi has stated nothing about petitioners specifically in his deposition. Further father Shyamlal Chaturvedi, brother Anil Kumar Chaturvdi and mother Ruchila Chaturvedi have nowhere stated in their depositions that complainant's mother-in-law used to throttle the neck of/strangulate complainant, as deposed by complainant Pratibha himself.

15. Further, complainant Pratibha himself has not specifically mentioned with respect to harassment (Paresan) meted out to him by petitioner Shivshankar and Ramashankar and she has also not stated as to how and in what manner, petitioners Shivshankar and Ramashankar used to harass (Paresan) her. Acts of harassment (Paresan) mentioned by complainant Prathibha in written report Ex. P-1 have not been deposed by her during examination-in-chief itself.

16. Thus, from above, it is apparent that there is no specific/categorical/cogent/legal evidence with respect to harassment (Paresan) by petitioners of complainant in relation to demand on dowry etc. Word "harassment (Pareshan)" has not been clarified. Thus, it is a case of virtually no evidence.

17. Further, from evidence on record, it is apparent that written Cr.R. No. 542/2016

report Ex. P/1/FIR Ex. P-2 has been lodged on 11.02.1999 whereas complainant Pratibha was living/residing in her parents' house since 18.03.1996 and reasons for not reporting the matter at the earliest/prior to 11.02.1999 are not established at all from depositions of prosecution witnesses.

18. Therefore, in view of above, in this Court's considered opinion, learned Courts below have acted with material illegality as virtually there is no specific/categorical/cogent/legal evidence with respect to harassment/cruelty (Paresan/tang) as required for constituting offence under Section 498-A of IPC. It is also important to note that no charge with respect to demand of dowry has been framed against petitioners nor there is any conviction under Dowry Prohibition Act.

19. Therefore, in view of above, the revision petition filed by petitioners is allowed and impugned judgment dated 21.01.2016 passed in Cr.A. No. 62/2009 by learned appellate Court, second additional sessions judge, Umaria, so far as it relates to petitioners, is set aside and petitioners are acquitted of the charge under Section 498- A/34 of IPC and fine amount deposited by the petitioners be refunded to them.

20. A copy of this order be sent forthwith to learned trial court/ learned appellate Court i.e. second additional sessions judge, Umaria, District Umaria, for information & necessary action.

21. Present revision petition is disposed off accordingly.

(ACHAL KUMAR PALIWAL) JUDGE L.R.

Digitally signed by LALIT SINGH RANA Date: 2023.09.05 10:46:55 +05'30'