Madhya Pradesh High Court
Ramprakash vs The State Of Madhya Pradesh on 1 September, 2021
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
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HIGH COURT OF MADHYA PRADESH
Manoj Kumar Sharma and others Vs.State of M.P. (Cr.R.No.1210 of 2021)
Ramprakash Vs. State of M.P. (Cr.R. No.1128 of 2021)
Gwalior, dated 1-9-2021
Shri H.K. Shukla, Counsel for applicants no.1 and 2 in Cr.R.
No.1210 of 2021.
Shri B.S. Dhakad, Counsel for applicant no.3 in Cr.R. No.1210
of 2021 through video conferencing.
Shri H.K.Shukla, Counsel for applicant in Cr.R. No.1128/2021.
Shri A.K. Nirankari, Counsel for the State.
Heard both the Criminal Revisions on the question of
admission.
1. Criminal Revision No.1210 of 2021 has been filed against the
judgment dated 19-3-2021 passed in Cr.A. No.s 405/2015, 400/2015
and 409/2015 and Cr.R. No.1128 of 2021 has been filed against the
judgment dated 19-3-2021 passed in Cr.A. No.396/2015 passed VIth
Additional Sessions Judge, Shivpuri arising out of judgment dated 4-
11-2015 passed by J.M.F.C., Pohari, Distt. Shivpuri in RCT No.
587/09 by which the applicants have been convicted and sentenced as
under :
Under Section Sentence
467 of I.P.C. One year R.I. and fine of Rs. 2,000 in default 2
months R.I.
2. The applicants were also convicted under Sections 420, 423,
468 and 419 of I.P.C., but during the pendency of the appeal, an
application under Section 320 of Cr.P.C. was filed and by order dated
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HIGH COURT OF MADHYA PRADESH
Manoj Kumar Sharma and others Vs.State of M.P. (Cr.R.No.1210 of 2021)
Ramprakash Vs. State of M.P. (Cr.R. No.1128 of 2021)
10-2-2021, said application was partially allowed and the applicants
were acquitted of charges under Sections 419, 420, 423 of I.P.C. but
since, the offence under Section 467, 468 of I.P.C. are not
compoundable, therefore, appeal was heard on merits. By the
impugned judgment, the applicants have been acquitted of charge
under Section 468 of I.P.C. but have been convicted for the above
mentioned offence.
3. It is submitted by the Counsel for the parties, that they donot
want to argue on the question of merits, and their prayer is that in
view of the compromise arrived at between the parties, the sentence
may be reduced to the period already undergone by the applicants.
4. Considered the submissions made by the Counsel for the
parties.
5. The Supreme Court in the case of Nagpal Traders Vs.
Devinder Singh reported in (2017) 11 SCC 431 has held as under :
10. We may also refer to the judgment of this Court in
Jeetu4 where this Court has while considering as to how the
appeal should be disposed of by the appellate court when
there is no challenge to conviction observed that it is the
obligation of the court to decide the appeal on merits and
not accept the concession and proceed to deal with the
sentence, for the said mode and method defeats the
fundamental purpose of the justice-delivery system. This
Court further noted that there are many cases where the
High Courts after recording the non-challenge to the
conviction, have proceeded to dwell upon the
proportionality of the quantum of sentence. It was observed
that such a course is impermissible in law and should not be
resorted to. We respectfully agree with this view of this
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HIGH COURT OF MADHYA PRADESH
Manoj Kumar Sharma and others Vs.State of M.P. (Cr.R.No.1210 of 2021)
Ramprakash Vs. State of M.P. (Cr.R. No.1128 of 2021)
Court. We are dealing with one of such cases. In our
opinion, the High Court should not have shown leniency to
the respondent. We will have to therefore rectify the error
committed by the High Court.
6. Thus, in the light of the judgment passed in the case of Nagpal Traders (Supra), this Court has to consider the merits of the case on its own, as the matter was not argued on merits by the Counsel for the applicants.
7. Before considering the merits of the case, this Court would like to consider the scope of interference by this Court under Sections 397, 401 of Cr.P.C.
8. The Supreme Court in the case of State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand reported in (2004) 7 SCC 650 has held as under :
21. In embarking upon the minutest re-examination of the whole evidence at the revisional stage, the learned Judge of the High Court was totally oblivious of the self-
restraint that he was required to exercise in a revision under Section 397 CrPC. On behalf of the accused, reliance is placed on the decision of this Court to which one of us (Justice Sabharwal) is a party i.e. Ram Briksh Singh v. Ambika Yadav. That was the case in which the High Court interfered in revision because material evidence was overlooked by the courts below.
22. The revisional court is empowered to exercise all the powers conferred on the appellate court by virtue of the provisions contained in Section 401 CrPC. Section 401 CrPC is a provision enabling the High Court to exercise all powers of an appellate court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Sessions Court. Section 397 CrPC confers power on the High Court or Sessions Court, as the case may be, 4 HIGH COURT OF MADHYA PRADESH Manoj Kumar Sharma and others Vs.State of M.P. (Cr.R.No.1210 of 2021) Ramprakash Vs. State of M.P. (Cr.R. No.1128 of 2021) "for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court". It is for the above purpose, if necessary, the High Court or the Sessions Court can exercise all appellate powers. Section 401 CrPC conferring powers of an appellate court on the revisional court is with the above limited purpose. The provisions contained in Section 395 to Section 401 CrPC, read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power.
23. On this aspect, it is sufficient to refer to and rely on the decision of this Court in Duli Chand v. Delhi Admn. in which it is observed thus: (SCC p. 651, para 5) "The High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing to reappreciate the evidence for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned Additional Sessions Judge was correct. But even so, the High Court reviewed the evidence presumably for the purpose of satisfying itself that there was evidence in support of the finding of fact reached by the two subordinate courts and that the finding of fact was not unreasonable or perverse."
24. It is necessary to note that in the case of Duli Chand the High Court had reappreciated the whole evidence and confirmed the findings of the two courts below. This Court, therefore, did not interfere with them.
9. The Supreme Court in the case of Sheonandan Paswan Vs. State of Bihar reported in (1987) 1 SCC 288 has held as under :
88. There is no appeal provided by the Act against an order giving consent under Section 321. But the order is revisable under Section 397 of the Criminal Procedure Code. Section 397 gives the High Court or the Sessions Judge jurisdiction to consider the correctness, legality or propriety of any finding, sentence or order and as to the regularity of the proceedings of any inferior court. While considering the legality, propriety or the correctness of a finding or a conclusion, normally, the revising court 5 HIGH COURT OF MADHYA PRADESH Manoj Kumar Sharma and others Vs.State of M.P. (Cr.R.No.1210 of 2021) Ramprakash Vs. State of M.P. (Cr.R. No.1128 of 2021) does not dwell at length upon the facts and evidence of the case. The court in revision considers the materials only to satisfy itself about the correctness, legality and propriety of the findings, sentence or order and refrains from substituting its own conclusion on an elaborate consideration of evidence.
10. The Supreme Court in the case of Akalu Ahir and others vs. Ramdeo Ram reported in AIR 1973 SC 2145 has held as under:-
"7. Now adverting to the power of revision conferred on a High Court by Sec. 439 read with Sec. 435, Cr. P.C. it is an extraordinary discretionary power vested in the superior Court to be exercised in aid of justice; in other words, to set right grave injustice. The High Court has been invested with this power to see that justice is done in accordance with the recognised rules of criminal jurisprudence and that the subordinate Courts do not exceed their jurisdiction or abuse the power conferred on them by law. As a general rule, this power, in spite of the wide language of Sections 435 and 439, Cr. P.C. does not contemplate interference with the conclusions of fact in the absence of serious legal infirmity and failure of justice. This power is certainly not intended to be so exercised as to make one portion of the Code of Criminal Procedure conflict with another; as would seem to be the case when in the garb of exercising revisional power, the High Court in effect exercises the power of appeal in face of statutory prohibition."
11. Thus, it is clear that while exercising power under Section 397 and 401 of Cr.P.C., this Court can merely exercise its supervisory powers and cannot act as a Court of Facts. Accordingly, the record of the Court below is perused in the light of the limited scope of interference.
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HIGH COURT OF MADHYA PRADESH Manoj Kumar Sharma and others Vs.State of M.P. (Cr.R.No.1210 of 2021) Ramprakash Vs. State of M.P. (Cr.R. No.1128 of 2021)
12. According to the prosecution story, the applicant Ramprakash and the complainant Kalia are the joint owners of agricultural land bearing survey no.308 are 0.96 hectares. The applicant Ramprakash by impersonating the applicant Narayani as complainant Kalia, executed a sale deed in favor of Ramgopal (died during pendency of appeal), thereby adversely affecting the rights of the complainant Kalia.
13. The applicant Ramprakash is the co-seller of agricultural land bearing no.308. The applicant Narayani signed the sale deed, Ex. P.15 by impersonating herself as complainant Kalia, whereas Ramgopal is the beneficiary of the said sale deed, who died during the pendency of the appeal. The applicants Manoj Kumar Sharma and Vinod had signed the sale deed as witnesses.
14. The Trial Court after considering the Evidence led by the parties as well as after hearing both the parties, convicted the applicants for offence under Sections 419, 420, 423, 467 and 468 of I.P.C.
15. Being aggrieved by the judgment and sentence passed by the Trial Court, the applicants preferred an appeal on 16-11-2015. Ultimately on 10-2-2021, an application under Section 320(2) of Cr.P.C. was filed for compromise, which was partially accepted, and the applicants were acquitted for the offences punishable under Sections 419,420,423 of I.P.C.
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HIGH COURT OF MADHYA PRADESH Manoj Kumar Sharma and others Vs.State of M.P. (Cr.R.No.1210 of 2021) Ramprakash Vs. State of M.P. (Cr.R. No.1128 of 2021)
16. In the application filed under Section 320 of Cr.P.C., it was pleaded that the applicants and complainant are related to each other, and now they have decided to resolve their dispute.
17. The allegations are that Ramprakash and the complainant were the co-owners of Survey No.308 and Ramprakash fradulently sold the share of the complainant by producing Narayani as the complainant.
18. Both the Courts below have given concurrent findings of facts and this Court has gone through the evidence as well as the findings given by the Courts below, and no perversity could be found in the concurrent findings of the facts.
19. The only question for consideration is that whether the period already undergone by the applicants is sufficient to reduce the sentence or not?
20. The Trial Court had awarded Rigorous Imprisonment of 3 years for offence under Section 467 of I.P.C. and the Appellate Court has already reduced the jail sentence to R.I. for one year.
21. The only question which is to be considered is as to whether the contention of the applicants that since, the parties are related to each other and now they have compromised the matter, therefore, the jail sentence may be reduced to the period already undergone by them, is liable to be accepted or not?
22. The applicant Ramprakash and the complainant Kalia were the co-owners of the agricultural land bearing survey no.308. The 8 HIGH COURT OF MADHYA PRADESH Manoj Kumar Sharma and others Vs.State of M.P. (Cr.R.No.1210 of 2021) Ramprakash Vs. State of M.P. (Cr.R. No.1128 of 2021) applicant Rampakash fraudulently sold the share of the complainant Kalia and the other applicants actively participated in the same. The most unfortunate part of the case is that the questioned sale deed was executed on 19-3-2004 and the F.I.R., Ex. P.5 was lodged on 25-5- 2004. The charge sheet was filed on 31-12-2004 and the applicants were convicted by judgment dated 4-11-2015 and the application for compromise was filed on 10-2-2021 i.e., after 17 years of committing offence, after 6 years of conviction by the Trial Court and after 5 ½ years of filing of Criminal Appeal. Thus, it is clear that only when the applicants realized that their conviction is likely to be maintained, then they persuaded the complainant to enter into compromise. If the applicants had any remorse for their illegal act, then they should have entered into a compromise at the earliest possible opportunity. They not only deprived the complainant of her legitimate right, but they also dragged her to Court and only when they realized that their conviction is likely to be maintained, then they persuaded the complainant to enter into a compromise. Even the terms of compromise have not been mentioned in the application. It is not known as to whether the applicants have executed a deed of re- conveyance or have paid the consideration amount at the present market rate or they have pressurized the complainant to enter into a compromise.
23. Accordingly, this Court is of the considered opinion, that the 9 HIGH COURT OF MADHYA PRADESH Manoj Kumar Sharma and others Vs.State of M.P. (Cr.R.No.1210 of 2021) Ramprakash Vs. State of M.P. (Cr.R. No.1128 of 2021) Appellate Court has already shown much leniency by reducing the jail sentence of 3 years to R.I. One year.
24. Considering the conduct of the applicants in dragging the case for years together and in playing fraud on the complainant, thereby depriving her from her legitimate right, this Court is of the considered opinion, that no further leniency is required to be shown to the applicants. Accordingly, while upholding the conviction of the applicants for offence under Section 467 of I.P.C., the sentence awarded by the Appellate Court is also Maintained.
25. Accordingly, the judgment and sentence dated 19-3-2021 passed in Cr.A. No.s 405 of 2015, 400 of 2015, 409 of 2015 and 396 of 2015 passed by VIth Additional Sessions Judge, Shivpuri are hereby affirmed.
26. The applicant Ramprakash in Cr.R. No.1128 of 2021 is on bail. His bail bonds are hereby cancelled. He is directed to immediately surrender before the Trial Court for undergoing the remaining jail sentence.
27. The other applicants namely Manoj Kumar, Vinod and Smt. Narayani are in jail. They shall undergo the remaining jail sentence.
10. A copy of this judgment be provided to the applicants, free of cost.
28. With aforesaid observations the Cr.R. Nos.1210/2021 and 1128/2021 are hereby dismissed. The records of the Courts below be 10 HIGH COURT OF MADHYA PRADESH Manoj Kumar Sharma and others Vs.State of M.P. (Cr.R.No.1210 of 2021) Ramprakash Vs. State of M.P. (Cr.R. No.1128 of 2021) returned immediately for necessary information and compliance.
(G.S. Ahluwalia) Judge ARUN KUMAR MISHRA 2021.09.06 17:18:51 +05'30'