SARSWATI DEVI Vs. STATE OF SIKKIM

JUDGEMENT

(1.) By filing this revision petition the three accused persons (hereinafter referred to as the Convicts) namely, Smt. Saraswati Devi, Shri Govind Agarwal and Shri Bharat Prasad challenged the judgment of conviction and order of sentence passed by the learned Sessions Judge (South and West) in Criminal Appeal No. 1 of 1998 on the 18th September, 1998 wherein, the ld. Sessions Judge (South and West) dismissed the appeal and upheld the Judgment and Order of the ld. Judicial Magistrate, East Sikkim passed on the 4th May, 1990 in Criminal Case No. 34 of 1984 with modifications.

(2.) After hearing the argument of Mr. Ghosh, Advocate for petitioner and Mr. Sharma, Public Prosecutor at length it is considered not necessary to examine the depositions of the witnesses. Although revisional power of the High Court under Section 439 read with Section 435 of old Cr.P.C. corresponding to Section 401 and 397 of new Cr.P.C., is as wide as the power of Court of appeal under Section 423 of the old Cr.P.C. and Sections 385(2) and 386 of new Cr.P.C., yet it is to be exercised only in exceptional cases when there is a glaring defect in the procedure or where there is a manifest error on point of law which has consequently resulted in flagrant miscarriage of justice. The High Court is not expected to act under Section 435 or 439 of old Cr.P.C. and its corresponding provisions under the new Cr.P.C. as if it is hearing an appeal.

(3.) After considering the facts and materials on record, the Convict No. 1, Smt. Saraswati Devi was sentenced by the learned Judicial Magistrate, East to pay a fine of Rs. 100/- or in default of payment of fine to undergo simple imprisonment for one week and the Convict No. 2, Govind Agarwal and the Convict No. 3, Bharat Prasad were sentenced to undergo simple imprisonment till the rising of the Court and to pay a fine of Rs. 200/- each or in default of payment of fine to undergo simple imprisonment for one month each. This judgment of conviction and order of sentence were challenged by preferring an appeal before the learned Sessions Judge (East and North). Mr. Tashi Wangdi, the learned Sessions Judge (East and North) expressed his inability to hear the appeal. The appeal was, therefore, transferred to the file of Mr. B. C. Sharma, learned Sessions Judge (South and West).