Allowed

Shah Alam v. State of U.P. and Another

Allahabad HC10 May 2018CRLR/1127/2016

Case brief

AI extract

What is this about?

The High Court held that the order passed by the Additional Sessions Judge in criminal revision no. 219 of 2015 was a final order, not an interlocutory one. Consequently, the revision was maintainable, and the order setting aside the Magistrate's decision was set aside, allowing the present revision.

What did the court decide?

The judgment and order dated 5.3.2016 passed byAdditional Sessions Judge is set aside and present criminal revision is allowed.

Shah Alam Vs State of U.P. and Another — Civil Procedure and Limitation | Allahabad HC (2018)

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Court No. - 28

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Case :- CRIMINAL REVISION No. - 1127 of 2016

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Revisionist :- Shah Alam Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- Gaurav Kumar Shukla,Vishal Jaiswal

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Counsel for Opposite Party :- G.A.,Ashutosh Pandey,Ganesh Kumar,Ravindra Prakash Srivasta

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Hon'ble Umesh Chandra Tripathi,J.

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1. Heard learned counsel for the revisionist, learned counsel for the opposite party no. 2 and learned A.G.A., for the State.

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2 . This criminal revision has been preferred against the judgment and order dated 5.3.2016 passed by the Additional Sessions Judge, Court No. 4, Basti in criminal revision no. 219 of 2015 (Ram Gopal Vs. State of U.P. and other) whereby criminal revision filed against the order dated 11.8.2015 passed by the Judicial Magistrate, Court No. 19, Basti was allowed and the order dated 11.8.2015 passed by the Judicial Magistrate was set aside. By the impugned order, Judicial Magistrate was directed to pass fresh order in the light of observation made by the revisional court.

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3 . By the order dated 11.8.2015, learned Judicial Magistrate has rejected the application filed by the prosecution to commit the case to sessions court as offence under Sections 376, 511 IPC is made out against the accused/revisionist.

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4 . As per prosecution version on 17.1.2009 at about 6:00 PM accused/revisionist (Shah Alam) tried to outrage the modesty of prosecutrix and attempted to commit rape on her.

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5. After investigation, police has filed chargesheet against the accused under Sections 354 and 506 IPC. Prosecution has submitted application to commit the case to the court of sessions as offence under Sections 376 and 511 IPC is made out against the accused/revisionist. After recording evidence of the prosecutrix, on the basis of her statement, learned Magistrate found that offence under Section 376 and 511 IPC is not made out against the accused/revisionist.

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6. Against impugned order, prosecution has filed criminal revision no. 219 of 2015 (Ram Gopal Vs. State of U.P. and others) in which impugned order dated 5.3.2016 has been passed.

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7. Learned counsel for the revisionist contended that from the statement of the prosecutrix and allegation made in the FIR, offence under Sections 376 and 511 IPC is not made out against the accused/revisionist. Learned trial court passed the impugned order on the basis of evidence on record. Learned revisional court has no jurisdiction to appreciate the evidence on record. Learned revisional court has passed the impugned order and reappreciated the evidence which is not permissible in law.

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8. Learned counsel for the opposite party no. 2 and learned A.G.A., for the State have placed reliance upon the judgment of this Court in the case of Ram Kishore Singh Vs. State of U.P. and others, 2016 (4) ALJ 366, and contended that impugned order is interlocutory order against which revision is not maintainable. From the evidence of prosecutrix before the court, offence under Sections 376 and 511 IPC is made out against the accused/revisionist. They further contended that there is no illegality in the impugned order dated 5.3.2016 passed the Additional Sessions Judge, Court No. 4, Basti.

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9. Perused the statement of prosecutrix before the court and first information report. In examination-in-chief, prosecutrix has not narrated the fact that accused/revisionist has attempted to commit rape on her. She simply stated that accused/revisionist has lifted her petticoat. This fact is not mentioned in the FIR. After appreciating the evidence, learned Magistrate has passed the impugned order. Revisional court has no jurisdiction to re-appreciate the evidence in revisional jurisdiction.

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10 . In the case of Ram Kishore Singh (supra), this court has not held that final judgment and order passed in the revision by the revisional court is inter-locutory order. In that case, judgment of Hon'ble Apex Court in Madanraj Vs. Jalamchand Lodha and another, AIR 1960 SC 744 has been referred, in which case, Hon'ble Apex Court held that order of remand passed by the High Court does not finally decide the points in the case and it is essentially of an interlocutory character. Hon'ble Apex Court also has not held that judgment and order passed in the revision is interlocutory order.

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11. Judgment and order passed in revision is final order against which revision is maintainable.

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12 . In view of above, order passed by the revisional court is against law, which is not sustainable.

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13 . Accordingly, the judgment and order dated 5.3.2016 passed by the Additional Sessions Judge, Court No. 4, Basti in criminal revision no. 219 of 2015 (Ram Gopal Vs. State of U.P. and other) is hereby set aside.

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14 . Consequently, the present criminal revision stands allowed .

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Order Date :- 10.5.2018 Jaswant

Shah Alam v. State of U.P. and Another

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Shah Alam v. State of U.P. and Another

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