Bhagwan Swaroop vs State of U.P. and Others

Om Prakash-VII, J.—The present application under Section 482, Cr.P.C. has been preferred by one Bhagwan Swaroop challenging the order dated 13.5.2003 passed by Additional District and Sessions Judge, Court No. 17, Agra in Criminal Revision No. 377 of 1999, Purushottam v. State and others, whereby the court below has declined to take additional evidence in criminal revision proceeding. The brief facts of the case are as follows:

The proceeding under Section 145, Cr.P.C. was decided by the Sub-Divisional Magistrate, Bah, Agra with the direction that the second party shall not interfere in the peaceful possession of the first party in disputed property Nos. 1478, 1479, 1480 and 1481. Copy of the order was also sent to the S.O. concerned for necessary action. The second party, feeling aggrieved with the order, filed a criminal revision before the Sessions Judge, Agra, being Criminal Revision No. 377 of 1999, Purushottam v. State and others. During pendency of the revision, the opposite party moved an application with a prayer to take some additional evidence in the criminal revision. Objection was filed by the revisionist. The lower revisional court vide order dated 13.5.2003 rejected the application observing that revisional court has to see only the legality/illegality of the impugned order on the basis of records available in the lower court, but not on the basis of evidence adduced during criminal revision. Feeling aggrieved with that order, present application under Section 482, Cr.P.C. has been filed.

Heard Sri Akhilesh Kumar Sharma, learned counsel for the applicant, learned A.G.A. for the State and perused the material available on record.

It is submitted by learned counsel for the applicant that there is clear provision that revisional court can take evidence during pendency of the revision. Lower revisional court has illegally rejected the application of the applicant. It was also submitted that the present case is with regard to the proceeding under Section 145, Cr.P.C., which is a quasi-judicial civil proceeding. Hence, referring the provision of the Cr.P.C., prayer has been made to allow the application. It has further been argued that present forum is the appropriate forum.

Learned A.G.A. has submitted that impugned order does not suffer from any illegality and hence no occasion arises to exercise the extraordinary jurisdiction of the court.

Before discussing the question raised by the applicant that criminal revisional court has jurisdiction to take the additional evidence in the revisional proceeding or not, I would like to quote the provisions of Sections 399, 401 and 391, Cr.P.C.

"399. Sessions Judge''s powers of revision.--(1) In the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub-section (1) of Section 401.

(2) Where any proceeding by way of revision is commenced before a Sessions Judge under sub-section (1), the provisions of sub-sections (2), (3), (4) and (5) of Section 401 shall, so far as may be apply to such proceeding and references in the said subsections to the High Court shall be construed as references to the Sessions Judge.

(3) Where any application for revision is made by or on behalf of an person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other court.

This section deals with the power of the Sessions Judge in revision and clearly provides that power of sessions court in revision may be the same as High Court and the sessions court can exercise the same powers as the High Court while disposing of the revision.

Section 401(1), Cr.P.C. defines the revisional powers of High Court and it runs as under:-

"401. High Court''s powers of revisions.--(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a court of appeal by Sections 386, 389, 390 and 391 or on a court of Session by Section 307 and, when the Judges composing the court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392.

(2) to (5) ..............................

"Section 391, Cr.P.C. reads as follows:

(1) In dealing with any appeal under this Chapter, the appellate court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the appellate court is a High Court, by a Court of Session or a Magistrate.

(2) to (4) .......................".

This Court in the case of Vinod Kumar Vs. Smt. Mohrawati, , has held that Court of Sessions has similar power as of High Court in revision and as High Court is authorized to take additional evidence in revision, therefore, the sessions court has also jurisdiction to take additional evidence.

Since powers conferred to the Sessions Judge are analogous to the powers of the High Court and there is provision under Sections 391 and 401, Cr.P.C. that additional evidence in criminal revision may be taken, therefore, after analysing the impugned order with the facts of the present case and also the case law cited here-in-above, this Court without going to this fact that applicant has not availed any other forum, this Court finds it to be a fit case for exercise of its extra-ordinary powers under Section 482, Cr.P.C. Since impugned order is in clear violation of the legal provision and if it sustained, there would be a miscarriage of justice.

In view of these facts, I am of the opinion that Sessions Judge has jurisdiction to take additional evidence in revision. Therefore, in my opinion, the order dated 13.5.2003, whereby the court below has declined to take additional evidence, is not a correct order and it is, therefore, liable to be set aside. Thus, the application under Section 482, Cr.P.C. is allowed. The order dated 13.5.2003 passed by Additional District and Sessions Judge, Court No. 17, Agra in Criminal Revision No. 377 of 1999, Purushottam v. State and others, is hereby set-aside and the court concerned is directed to take the evidence filed by the revisionist on record and to proceed with the revision in accordance with law after affording opportunity to the other parties also.