BARU Vs. PRAKASH

JUDGEMENT

(1.) OPPOSITE Party, Prakash son of Natthan, was convicted of an offence under section 376 IPC and sentenced to 3 years- RI by the Assistant Sessions Judge, Muzaffarnagar vide his order dated 27th April, 1978. His conviction and sentence has been set aside in appeal by the District and Sessions Judge, Muzaffarnagar on 29th July, 1978. Hence this revision.

(2.) A question has been raised in this case, whether a revision by a private party is at all maintainable in this court in a police challani case. Reliance for this purpose is placed upon a decision of Brother M. P. Saxena, J. in Kanhaiya v.Kashi Nath, 1979 AWC 75 where it has been observed that in a case which proceeds upon a police report a private party has no locus standi. I have carefully perused this decision of Brother Saxena, J. It is based upon certain observations, Which have been made by the Supreme Court in Thakur Ram v. State of Bihar, 1966 CrLJ. 700. In that Supreme Court case, the position was that an order of discharge had been passed by the Magistrate which was being challenged by the complainant. The case had proceeded on the basis of police challani report. The relevant facts of that case, insofar as, they concern the point at issue were that successive attempts were being made by the complainant to get the accused committed to the court of sessions. The first attempt having failed, second attempt was made for the same purpose on the same facts 15 months later. The second attempt having failed a third attempt was made again by the complainant for getting the case committed to the court of sessions. Even this third attempt failed. By then the entire defence evidence had closed and the arguments had been heard. The case was over and judgment had to be pronounced. It was at that stage that a revision was filed not by the State, but by the private party before the Sessions Judge, who ordered commitment of the accused to the court of sessions. The matter then came up to the High Court. This court made an observation that the Sessions Judge was not unjustified in making the order which he had made. It was in this background of circumstances, that the Supreme Court had made an observation that if a private party approaches the court by way of a revision, then the revisional court will not lose sight of the fact that criminal law is not to be used as an instrument of wrecking private vengeance on an aggrieved party. It is true that the Supreme Court has held in that case that the private party has no locus standi but at the same time, it has also been observed in the very next sentence as follows : "No doubt the terms of section 435 CrPC under which the jurisdiction of the learned Sessions Judge was invoked are very wide and he could have taken up the matter suo moto". This implies that the revisional court can interfere either when a revision is filed before it or suo moto. This legal position is also obvious from a mere perusal of Section 401 CrPC, which runs as follows :-

(3.) COMING now to the merits of the case, learned counsel for the opposite party has submitted that since a finding has been recorded by the courts below that the prosecution story that the accused had taken the girl Kusum by inducement on 4-3-73 was not true, since Smt. Shanti, her mother was not at all present on the place and the prosecution version that she permitted her daughter to go with the accused on hearing that her husband had sustained injuries in village Kakrail was unbelievable. Therefore, on the basis of this finding, the accused should be acquitted and the case should not be remanded back. He has also argued that so far as the age of the applicant is concerned, the evidence on the record does not establish that she was a minor on the date of the alleged offence.