Dismissed

Shiv Shanker Gupta v. State of U.P.

Allahabad HC8 Dec 2017CRLR/2129/2010

Case brief

AI extract

What is this about?

High Court revisited conviction and sentence for misappropriation of wheat. Upholding that revision is supervisory, not appellate, the Court found no manifest error in concurrent findings of fact and dismissed the appeal, canceling pending bail.

What did the court decide?

Revision dismissed; bail cancelled; accused to be arrested and lodged in jail to serve three years rigorous imprisonment.

Shiv Shanker Gupta Vs State of U.P. — Criminal Trial and Appeal | Allahabad HC (2017)

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Court No. - 34

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Case :- CRIMINAL REVISION No. - 2129 of 2010

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Revisionist :- Shiv Shanker Gupta Opposite Party :- State Of U.P. Counsel for Revisionist :- A. Kumar Srivastava, Anwar Hussain,Avinash Mani Tripathi Counsel for Opposite Party :- Govt. Advocate

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Hon'ble Sudhir Agarwal,J.

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Pursuant to order of date passed on Restoration Application, Criminal Revision is restored to its original number.

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Heard Mr. Anwar Hussain for Revisionist. Learned A.G.A. Is present for State of U.P. As requested and agreed by learned counsel for parties, I proceed to hear and decide this case at this stage.

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This criminal revision under Section 401 read with Section 397 Cr.P.C. has been filed against judgment and order dated 10.5.2010 passed by Additional Sessions Judge, Court No. 3, Shahjahanpur in Criminal Appeal No. 4 of 2000, dismissing appeal of Accused Revisionist and confirming judgment and order of conviction and sentence dated 11.1.2000, passed by Chief Judicial Magistrate, Shahjahanpur in Case No. 1441 of 1999 whereby Accused Revisionist was convicted for committing offence under Section 407 I.P.C and sentenced to undergo three years rigorous imprisonment and fine of Rs. 10,000/-.

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Accused Revisionist was authorized contractor for handling purchase of wheat at Wheat Purchase Centre Gutaiya, Rotapur, District Shahjahanpur. The charge against Revisionist was that 1534 bags of wheat worth Rs. 2,54,797/- purchased by the Centre during period 1.5.1984 to 8.7.1984 was assigned to the accused Revisionist for depositing the same to the store of Indian Food Corporation, but he did not deposit the said wheat therein and used the same for his own benefit.

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On trial learned Magistrate found the charge proved upto hilt and accordingly, convicted and sentenced the Revisionist as aforesaid. Appeal filed before the Sessions Judge against conviction and sentence was also dismissed. Feeling dissatisfied, the instant revision has been filed by accused.

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At the outset, this Court is inclined to observe that concurrent findings of fact have been recorded by trial Court as well as Appellate Court.

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Learned counsel for the revisionists contended that the Courts below have not properly appreciated evidence and, therefore, conviction is illegal. He tried to take this Court to the judgments and made endeavor to show that the view taken by courts below in appreciating the evidence is not correct.

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However, I find difficult to accept the above submission for the reason that in revisional jurisdiction this Court cannot sit in appeal and re-appreciate the evidence.

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The judicial review in exercise of revisional jurisdiction is not like an appeal. It is a supervisory jurisdiction which is exercised by the Court to correct the manifest error in the orders of subordinate courts but should not be exercised in a manner so as to turn the Revisional court in a Court of Appeal. The legislature has differently made provisions for appeal and revision and the distinction of two jurisdictions has to be maintained.

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Construing old Section 437 of Criminal Procedure Code, 1898, pertaining to revisional jurisdiction, the Court in D. Stephens Vs. Nosibolla, AIR 1951 SC 196 said that revisional jurisdiction under Section 439 of the Code ought not to be exercised lightly particularly when it is invoked by private complainant against an order of acquittal which could have been appealed against by the Government under Section 417. It could be exercised only in exceptional cases where the

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interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. In other words, the revisional jurisdiction of the High Court cannot be invoked merely because the lower court has taken a wrong view of law or misappreciated the evidence on record.

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In K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, AIR 1962 SC 1788 it was held that revisional jurisdiction should be exercised by the High Court in exceptional cases only when there is some glaring defect in the procedure or a manifest error on a point of law resulting in flagrant miscarriage of justice. However, this was also a case in which revisional jurisdiction was invoked against an order of acquittal. If the Court lacks jurisdiction or has excluded evidence which was admissible or relied on inadmissible evidence or material evidence has been overlooked etc., then only this Court would be justified in exercising revisional power and not otherwise.

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The above view has been reiterated in Mahendra Pratap Singh Vs. Sarju Singh, AIR 1968 SC 707; Khetrabasi Samal Vs. State of Orissa, AIR 1970 SC 272; Satyendra Nath Dutta and another Vs. Ram Narain, AIR 1975 SC 580; Jagannath Choudhary and others Vs. Ramayan Singh and another, 2002(5) SCC 659; and, Johar and others Vs. Mandal Prasad and another, 2008 Cr.L.J. 1627 (S.C.).

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In Duli Chand Vs. Delhi Administration, 1975(4) SCC 649 the Court reminded that jurisdiction of High Court in criminal revision is severely restricted and it cannot embark upon a re-appreciation of evidence. While exercising supervisory jurisdiction in revision the Court would be justified in refusing to re-appreciate evidence for determining whether the concurrent findings of fact reached by learned Magistrate and Sessions Judge was correct.

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In Pathumma and another Vs. Muhammad, 1986(2) SCC 585 reiterating the above view the Court said that in revisional jurisdiction

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the High Court would not be justified in substituting its own view for that of a Magistrate on a question of fact.

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In Munna Devi Vs. State of Rajasthan and another, 2001(9) SCC 631 the Court said:

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“The revision power under the Code of Criminal procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the First Information Report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged.”

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In Ram Briksh Singh and others Vs. Ambika Yadav and another, 2004(7) SCC 665, in a matter again arising from the judgment of acquittal, the revisional power of High Court was examined and the Court said:

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“4. Sections 397 to 401 of the Code are group of sections conferring higher and superior courts a sort of supervisory jurisdiction. These powers are required to be exercised sparingly. Though the jurisdiction under Section 401 cannot be invoked to only correct wrong appreciation of evidence and the High Court is not required to act as a court of appeal but at the same time, it is the duty of the court to correct manifest illegality resulting in gross miscarriage of justice.”

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Having heard learned counsel for the revisionists and gone through the impugned judgment, I do not find any manifest error or otherwise illegality so as to warrant interference.

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Looking to the matter in the case in hand I find that the virtual ground taken in this revision is that the Courts have not properly appreciated evidence led on behalf of accused though both the courts below have recorded concurrent findings of fact holding revisionist guilty for the offence and have sentenced accordingly. Despite repeated query, learned counsel for the revisionists, except of reading the judgment, could not point out any manifest illegality in the concurrent findings of fact and also could not show that any relevant evidence has been ignored or omitted or inadmissible evidence has been relied or there is any other manifest error in the judgment.

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The revision is dismissed.

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Accused Shiv Shanker Gupta is on bail. His bail bonds and surety bonds are cancelled. The Chief Judicial Magistrate concerned shall cause him to be arrested and lodged in jail to serve out the sentence passed against him. Compliance shall be made within two months.

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Certify this judgment to the lower court immediately.

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Order Date :- 8.12.2017 Akn

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Court No. - 34

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Delay Condonation Application no.85781 of 2017

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In Criminal Misc. Restoration/Recall Application No. 85782 of 2017

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Case :- CRIMINAL REVISION No. - 2129 of 2010

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Revisionist :- Shiv Shanker Gupta Opposite Party :- State Of U.P. Counsel for Revisionist :- A. Kumar Srivastava, Anwar Hussain, Avinash Mani Tripathi Counsel for Opposite Party :- Govt. Advocate

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Hon'ble Sudhir Agarwal,J.

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