Bhogilal and Others vs State of U.P. and Another

K.C. Dhuliya, J.—There was a Criminal Case No. 439 of 1980 State v. Bhogi Lal, u/s 323/325 IPC in (he Court of Additional Munsif Magistrate, Shikohabad, District Mainpuri, in which the applicants were acquitted on 28-7-1981. The informant filed a Revision before the VII Additional Sessions Judge, Mainpuri, who allowed the same and gave direction to the Trial Court to decide the case again and give opportunity to the applicants to reexamine Dr. M.L. Agarwal (D.W. 1). It is against order of the VII Additional Sessions Judge dated 6th January, 1982, this Revision has been filed.

Learned Counsel for the applicant has made two submissions. His first submission is that the Sessions Judge had no power to entertain Revision against acquittal, inasmuch as, this power vests only in the High Court. His reasoning is that since the appeal against acquittal can only be filed in the High Court u/s 378 Code of Criminal Procedure the revision also can only be entertained, against acquittal, in the High Court, as in case of appeal being filed in the High Court and revision by the informant is filed before the Sessions Judge, there is likelihood of conflicting decisions and as such to avoid such conflict, revision against acquittal is to be entertained by the High Court alone. I do not accept this reasoning. The power of High Court and the Court of Sessions, with respect to Criminal Revisions, are concurrent powers, and are given u/s 397 and 401 Code of Criminal Procedure. There cannot be any bar for the Sessions Court, in entertaining revision against acquittal, if High Court can entertain such revisions. Section 399 Code of Criminal Procedure makes it clear and stated that the power of the Sessions Judge are the same as that of the High Court, in such matters. Section 399 Code of Criminal Procedure is being reproduced as under;

Sessions Judge''s powers of revision

(1) In the case of any proceeding the record of which has been called for 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 Session Judge under Sub-section (1), the provisions of Sub-section (2), (3), (4) and (5) of Section 401 shall, so far may be, apply to such proceeding and references in the said sub-sections 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 any 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.

The power of the Additional Sessions Judge are the same as that of a Sessions Judge for deciding the Criminal Revisions and the same has been made clear u/s 400 Code of Criminal Procedure which is being reproduced below:

Power of Additional Sessions Judge--An Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under this Chapter in respect of any case which may be transferred to him by or any general or special order of the Sessions Judge.

Thus the first submission made by the learned Counsel for the applicant is untenable and is rejected. The powers of the Sessions Judge are concurrent with that of the High Court in matters of all types of Criminal Revisions.

The second submission made by learned Counsel for the applicant is this that learned Additional Sessions Judge has reappraised the evidence and on the basis of the consideration of the evidence he has allowed the application of the complainant and remanded the case to the Trial Court, merely on the technical ground that the Magistrate has not initialed certain documents, viz. Ext. Ka. 5, Ext. Ka C-1, Ext. Ka C-2 and the material Ext. 1, the X-ray plate. I have perused the judgment of the learned Additional Sessions Judge and I do not find any such reasoning in the judgment for allowing the Revision against acquittal. It generally happens that at the time of hearing when certain documents are exhibited, the Presiding Officer forgets to initial the document which cannot be said to be an illegality or procedural error, prejudicing any of the parties. In fact the documents in question referred to by the VII Additional Sessions Judge are mostly injury reports, which have been discussed by the Trial Court. It has not come in the judgment of the Trial Court that injury reports were rejected. The Trial Court has held that the statements of the prosecution witnesses do not tally with the injury reports and as such the time of incident, that is given in the FIR is doubtful. This was the main reasoning given by the learned Magistrate for acquitting the accused opposite party. The Supreme Court in the case of K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, and also in Mahendra Pratap Singh Vs. Sarju Singh and Another, has held that "High Court is not entitled to interfere even if a wrong view of law is taken by the Court of Sessions or there is mis-appreciation of evidence.

In the this view of the matter learned Additional Sessions Judge was not justified in allowing the Revision against acquittal. The High Court and the Court of Sessions should not interfere in Revision against acquittal, except in cases which fall within the scope of the guidelines given by the Supreme Court in the above two cases for interfering in such matters and it will be relevant to refer Mahendra Pratap Singh v. Sarju Singh (Supra), the relevant portion of the judgment is being extracted and quoted below:

...It is pointed out further that by ordering a retrial, the dice is loaded against the accused, because however much the High Court may caution the Subordinate Court, it is always difficult to re-weigh the evidence ignoring the opinion of the High Court. Again in K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, it is pointed out that an interference in revision with an order of acquittal can only take place if there is a glaring defect of procedure such as that the Court had no jurisdiction to try the case or the Court had shut out some material evidence which was admissible or attempted to take into account evidence which was not admissible or had over looked some evidence. Although the list given by this Court is not exhaustive of all the circumstances in which the High Court may interfere with AS acquittal in revision it is obvious that the defect in the judgment under revision must be analogous to those actually indicated by this Court. As stated not one of these points which have been laid down by this Court was covered in the present case. In fact on reading the judgment of the High Court it is apparent to us that the learned Judge has re-weighed the evidence from his own point of view and reached inferences contrary to those of the Sessions Judge on almost every point. This we do not conceive to be his duty in dealing in revision with an acquittal when Government has not chosen to file an appeal against it. In other words, the learned Judge in the High Court has not attended to the rules laid down by this Court and has acted in breach of them.

In this view of the matter as discussed above the Additional Sessions Judge was not justified in allowing the revision against acquittal, inasmuch as, the Trial Magistrate has jurisdiction to try the case and he did not shut out any material evidence, which was admissible and was attempted by the prosecution for being adduced. The injury reports referred to by he Additional Sessions Judge were not discarded by the Trial Court. The doctor was examined as Court witness and it was after examining the doctor, the Magistrate gave the finding that there is difference between the statements of the doctor and of the prosecution witness for fixing timing of the incident. It is true that the Magistrate might have taken a wrong view, but in matters of Revision against acquittal, even if there is an error on the point of law or in appreciation of evidence the higher court should not interfere in the finding of the acquittal. This being so, the Revision application succeeds and the judgment of the VII Additional Sessions Judge dated 6-1-1982 is set aside.

This Criminal Revision is allowed.