Allahabad High Court
Lalita Devi vs State Of U.P. And Another on 6 May, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:80356 Reserved on 04.04.2024 Delivered on 06.05.2024 Court No. - 77 Case :- CRIMINAL REVISION No. - 227 of 2023 Revisionist :- Lalita Devi Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Anjani Kumar Tripathi,Maruti Kumar Tripathi Counsel for Opposite Party :- G.A.,Ravindra Prakash Srivastava Hon'ble Rajeev Misra,J.
1. Heard Mr. Anjani Kumar Tripathi, the learned counsel for revisionist, the learned A.G.A. for State and Mr. R. P. Srivastava, the learned counsel representing opposite party-2.
2. This criminal revision is directed against the judgement and order dated 13.10.2022 passed by Additional Sessions Judge 4th/Special Judge (E. C. Act), Basti, in Criminal Appeal No. 15 of 2014, whereby the court below has allowed the aforesaid appeal filed by accused/opposite party-2, Satyanarayan and set aside the judgement and order dated 24.03.2014 passed by Additional Chief Judicial Magistrate, Court No. 10, Basti, in Complaint Case No. 533 of 2013 (Smt. Lalita Devi Vs. Satyanarayan) under Section 494 I.P.C., whereby the trial court had convicted the accused/opposite party-2 under Section 494 I.P.C. and consequently, sentenced him to 3 years rigorous imprisonment alongwith fine of Rs. 2,000/- and the accused/opposite party-2 has been acquitted of the charge under Section 494 I.P.C.
3. Perused the record.
4. Record shows that a complaint was filed by revisionist Lalita Devi alleging therein that during subsistence of the first marriage of opposite party-2 with revisionist, he has solemnised second marriage with one Usha Devi, daughter of Ram Sundar. The trial court dealing with the complaint after the preliminary exercise of recording the statements of the complainant and that of his witnesses in terms of Sections 200 and 202 Cr.P.C. recorded it's prima facie satisfaction on the complaint so made by the revisionist and summoned opposite party-2 to face trial under Section 494 I.P.C.
5. Charge was framed against opposite party-2 under Section 494 I.P.C., who denied the same and pleaded innocence. Consequently, the trial procedure commenced. Revisionist in support of her case, adduced herself as P.W.-1, Sukai as P.W.-2, Jagnandan as P.W.-3. Revisionist also filed documentary evidence. As per list of document dated 18.08.2011, the complainant filed photocopy of Notoried Sanad, 2009, the photocopy of the High School Certificate of 2007 pertaining to Arvind Kumar, copy of the judgement dated 14.06.1995 decided by J. M. Basti in a case under Section 125 Cr.P.C., the photocopy of voter list pertaining to the State Legislative Assembly.
6. The accused in support of his defence adduced one Ganga Ram and further gave his statement under Section 313 Cr.P.C., wherein he denied the adverse circumstances put to him in question answer from.
7. Upon perusal of record and appreciation of the evidence on record, the trial court came to the conclusion that the accused is guilty of committing an offence under Section 494 I.P.C. and consequently convicted him under Section 494 I.P.C. and further sentenced him to 3 years rigorous imprisonment alongwith file of Rs. 2.000/- In case of default in payment of fine, the accused was to undergo two months additional rigorous imprisonment.
8. Feeling aggrieved by aforementioned judgement and order dated 24.03.2014, accused filed an appeal before the Appellate Court, which was registered as Criminal Appeal No. 15 of 2014. The said appeal filed by accused came to be allowed by the Appellate Court vide order dated 13.10.2022 passed by Additional Sessions Judge 4th/Special Judge (E. C. Act) Basti.
9. Perusal of the order dated 13.10.2022 passed by the Appellate Court goes to show that complainant could not establish the very story which she set out to prove before court below. The Appellate Court upon appraisal and evaluation of the evidence on record came to the conclusion that the registration applied for by accused was refused on the ground that same has been presented after expiry of a period of limitation i.e. 90 days. However, by reason of the said document, it cannot be presumed that the second marriage took place between the accused and the lady Usha Devi. The ingredients necessary for establishing the charge under Section 494 I.P.C. that there was a valid marriage and during the subsistence of the first marriage, second marriage was solemnised by husband and lastly both the marriages were solemnised in accordance with the customs and usage applicable to the parties. However, P.W.-2, Jagnandan in his cross-examination has clearly stated about his ignorance regarding second marriage of accused with Usha Devi. There is nothing on record to show that second marriage of opposite party-2, accused was solemnized before Additional District Magistrate/ Marriage Officer, Basti on 25.09.1993.
10. Thus feeling aggrieved by the aforesaid judgement and order dated 13.10.2022 passed by Appellate Court, revisionist i.e. complainant has now approached this Court by means of present criminal revision.
11. Learned counsel for revisionist contends that order impugned in present criminal revision is manifestly illegal in view of the fact that court below has set aside the order passed by the trial court on the ground that it has another view of the matter. It is well settled by now that where there are two views possible, the view taken by the trial court should be sustained. The trial court on the basis of the evidence on record had come to a definite conclusion by way of adverse inference that second marriage was solemnized by opposite party-2. However, in spite of the fact that there was no such cogent evidence on the record to dislodge the adverse inference drawn by trial court yet the Appellate Court has set aside the judgement of the trial court and acquitted the accused/opposite party-2 of the charge alleged against him. He, therefore, contends that order impugned cannot be sustained and is, therefore, liable to be set aside by this Court.
12. Per contra, the learned A.G.A. for State and the learned counsel representing opposite party-2 have vehemently opposed this criminal revision. Much emphasis was laid on the recital occurring at internal pages 6 and 7 of the order impugned and on basis thereof, it was urged that in view of aforesaid, it cannot be said that court below has set aside the order passed by the trial court on unsustainable ground. Court below has examined the merit of the evidence adduced and upon proper evaluation and appreciation of the same has returned a cogent finding that it is not established that second marriage was performed by accused/opposite party-2 during subsistence of the first marriage. They, therefore, submit that unless and until the aforesaid finding recorded by trial court is dislodged as being illegal, perverse or erroneous, the conclusion drawn by court below is not liable to be interfered with. As the finding recorded by court below that as per material on record, it is not established that accused/opposite party-2 has solemnized second marriage during subsistence of the first marriage, therefore, submissions urged on behalf of the learned counsel for revisionist are devoid of substance and therefore order impugned in present criminal revision is not liable to be interfered with. As such, present criminal revision is liable to be dismissed.
13. Having heard the learned counsel for revisionist, the learned A.G.A. for State, the learned counsel representing opposite party-2 and upon perusal of record this court finds that the only issue involved in present criminal revision is whether the court below was right in setting aside the judgement and order passed by trial court and whether the reason recorded by the court below in support of the conclusion so drawn by it is sustainable in law?
14. Before proceeding to undertake the aforesaid exercise, it would be prudent to consider the scope of Sections 397 and 401 Cr.P.C. with regard to matters, where court below either convicted an accused or acquitted an accused of the charge alleged against him. In this regard, reference be made to the judgement of this Court in Criminal Revision No. 4257 of 2005 (Deepak Kumar Vs. State of U.P.) wherein following has been observed in paragraphs 6 to 12 of the report:-
6. Construing old Section 439 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 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.
7 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.
8. 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.).
9. 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.
10. In Pathumma and another Vs. Muhammad, 1986(2) SCC 585 reiterating the above view the Court said that in revisional jurisdiction the High Court would not be justified in substituting its own view for that of a Magistrate on a question of fact.
11. In Munna Devi Vs. State of Rajasthan and another, 2001(9) SCC 631 the Court said:
"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."
12. 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:
"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."
15. When the order impugned is examined in the light of caution given by this Court as noted herein above, this Court is required to find out as to whether the finding returned by court below that accused/opposite party-2 has not solemnised second marriage during subsistence of first marriage is a finding sustainable in law or not? The court below as is evident from the recital contained at internal pages 6 and 7 of the certified copy of the impugned judgement has given cogent reason, which has already noted herein above and on basis thereof has concluded that it cannot be definitely concluded that accused/opposite party-2 has solemnized second marriage during the subsistence of the first marriage. The learned counsel for revisionist in spite of his vehement effort, could not dislodge the same with reference to any material on record to establish that accused/opposite party-2 has performed second marriage with Usha Devi during the subsistence of the first marriage. Present case appears to be a case of suspicion. It is by now well settled that suspicion how so ever strong cannot take the place of proof. As the prosecution has failed to establish by cogent evidence the very story which is set out to prove, court below has not committed any jurisdictional error in passing the order impugned nor has it exercised it's jurisdiction with such material irregularity so as to vitiate the order impugned warranting interference by this Court.
16. In view of the discussion made above, it is evident that there is nothing on record to show as to which evidence has been ignored by the court below, which if taken into consideration could lead alteration of the decision impugned nor the finding of fact recorded by court below could be dislodged as perverse being contrary to the material already on record. Therefore, no good ground is made out for interference by this Court. As a result, present criminal revision fails and is liable to be dismissed.
17. It is, accordingly, dismissed.
18. Considering the facts and circumstances of the case, there shall be no order as to costs.
Order Date :- 06.05.2024 Vinay