BHOGI LAL Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) There was a Criminal Case No. 439 of 1980 State v. Bhogi Lal & others under Section 323/325 I.P.C. in the Court of Additional Munsif Magistrate, Shikohabad, District Mainpuri, in which the applicants were acquitted on 287.1981. 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 re-examine Dr. M.L Agarwal (D.W. 1). It is against the order of the VII Additional Sessions Judge dated 6th January, 1982, this Revision has been filed.

(2.) Learned counsel for the applicant ha3 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 under Section 378 Cr. P.C. 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 an 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 under Section 397 and 401 Cr. P.C. There cannot be any bar for the Sessions Court, in entertaining revision against acquittal, if High Court can entertain such revisions. Section 399 Cr. P.C. makes it clear and states that the power of the Sessions Judge are the same as that of the High Court, in such matters Seclion 399 Cr. P.C. is being reproduced as under: 399. Sessions Judges powers of revision-

(3.) 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 initialled certain documents viz. Ext. Ka-5, Ext. Ka-C1, Ext. Ka-C2 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 incidents, that is given in the F.I.R. 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. Chennaswami v. State of Andhra Pradesh and also in Mahendra Pratap Singh v. Sarju Singh & 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 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 interferring in such matters and it will be relevant to refer Mahendra Pratap Singh v. Sarju (supra), the relevant 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 v. State of Andhra Pradesh (supra) 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 overlooked some evidence. Although the list given by this Court is not exhaustive of all the circumstances in which the High Court may interfere with an 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 that, 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. 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.