Allahabad High Court
Suresh Chand Gupta And Others vs State Of U.P. Thru Secy. Home Deptt. And ... on 25 September, 2013
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved Case :- MISC. SINGLE No. - 959 of 2012 Petitioner :- Suresh Chand Gupta And Others Respondent :- State Of U.P. Thru Secy. Home Deptt. And Another Counsel for Petitioner :- Mrityunjay Datt Tiwari, Anil K. Tiwari Counsel for Respondent :- Govt. Advocate, M.N. Iqbal, S.K. Dixit Hon'ble Arvind Kumar Tripathi (II),J.
1. This writ petition has been filed by Suresh Chand Gupta, Puneet Kumar Gupta and Shiv Poojan for quashing the judgment and order dated 10.11.2011 passed by the learned Special Judge (Ayurved Scam Matter)/Additional Sessions Judge, Lucknow in Criminal Case No.174 of 2010 (Suresh Chand Gupta and two others v. State of U.P. and another) by which the application moved for condonation of delay in filing the revision has been rejected. It has also been prayed that the judgment and order dated 1.6.2009 passed by the learned Special Chief Judicial Magistrate Customs, Lucknow in Criminal Complaint Case No.2128 of 2009 (Shiv Kumar Gupta v. Suresh Chand Gupta and others) (Annexure 11 to the writ petition) be also quashed.
2. Heard Shri Anil Kumar Tiwari, learned counsel for the petitioners and Shri S.K. Dixit, learned counsel for the respondents.
3. The brief facts of the case are that the marriage of Jyoti Gupta daughter of Suresh Chand Gupta (revisionist no.1) was solemnized with Vikas Gupta son of Shiv Kumar Gupta (respondent no.2). Suresh Chand Gupta had given considerable dowry in the marriage along with valuable ornaments, clothes and other belongings. Smt. Jyoti Gupta, daughter of Suresh Chand Gupta, returned after vidai on 10.3.2000 from her matrimonial house, and on 26.4.2000, she again went to her matrimonial house from parental house. She was discharging her marital liabilities during her stay in matrimonial house. Unfortunately, Vikas Gupta died on 18.12.2000, and after his death Jyoti Gupta was kicked from her matrimonial house by keeping her entire ornaments and other belongings. Several meetings were held through the relatives, but Shiv Kumar Gupta did not pay heed and kept the stridhan of Jyoti Gupta in his possession. A legal notice was given to him, and his family members, demanding the stridhan of Jyoti Gupta. When no reply was submitted, a criminal complaint under Section 406 IPC was filed against Shiv Kumar Gupta and family members. This criminal complaint was registered as Complaint Case No.121 of 2001. After recording the statement under Section 200 and 202 Cr.P.C. the Additional Chief Judicial Magistrate summoned Shiv Kumar Gupta, Rajesh Kumar, Smt. Lalli Devi and Vijya Bharti to face trial under Section 406 IPC vide order dated 24.10.2001 to appear before the court. Shiv Kumar Gupta appeared before the court, and prayed for discharge by moving discharge application under Section 245 (2) Cr.P.C. on 29.5.2008. The learned Magistrate vide order dated 3.2.2009 rejected the discharge application. Thereafter, Shiv Kumar Gupta - respondent no.2 filed Criminal Revision No.199 of 2009, which was allowed by the Additional Sessions Judge, Court No.6, Lucknow. Aggrieved, Criminal Revision No.1683 of 2010 (Suresh Chand Gupta v. State of U.P. and others) was filed before this Court. When the said revision came up for admission, this Court stayed the proceedings of criminal case, and the revision is still pending, and interim order is still continuing. As a counter blast, Shiv Kumar Gupta filed a complaint case against the petitioners on 23.6.2008. The statement of Shiv Kumar Gupta was recorded under Section 200 Cr.P.C., and later on, two witnesses were also examined under Section 202 Cr.P.C. On the basis of the above statement, the learned Special Chief Judicial Magistrate Customs, Lucknow summoned the petitioners to face trial under Sections 452, 323, 504, 506 and 427 IPC. The criminal revision was filed by by the petitioners on 31.10.2009, but the said counsel filed revision showing wrong discrepancies making Shiv Kumar Gupta as revisionist. However, the said revision was withdrawn to file revision showing the appropriate parties. After that, a Criminal Misc. Case No.174 of 2010 (Suresh Chand Gupta and others v. State of U.P. and another) was filed along with delay condonation application supported by an affidavit. This delay condonation application was rejected by the revisional court. Feeling aggrieved, this writ petition has been filed.
4. It was submitted by the learned counsel for the petitioners that while deciding the application of condonation of delay the court below should have adapted a liberal approach. The petitioners have acted in particular manner on wrong advice of the counsel, and as such they could not have held guilty of negligence. The petitioners have also filed a complaint case against Shiv Kumar Gupta, and the said matter is still pending. The alleged commission of offence of 'Marpit' is the matter of investigation and the learned Magistrate had wrongly summoned the petitioners to face trial. There is no injury report in the complaint case.
5. There is no provision for revision to be withdrawn and petitioner could have moved an application for amendment in the memo of revision.
6. In the case of Dashnami v. State of U.P., 1999 Criminal Reporter (Hindi) 68 (Allahabad), and in the decision of the Apex Court in the case of Shaikh Salim Haji v. Kumar, 2006 (1) ARC 334 (SC) it has been held that though there is no specific provision in Criminal Procedure Code for amendment of errors etc. in the memo of appeal/revision, or application in criminal proceedings, but the courts need not apply hyper-technical approach in allowing the accidental and bona fide mistakes to be corrected. The courts may permit correction of bona fide errors and omissions in the applications etc in the criminal proceedings.
7. In view of above, the revisionist had an opportunity to move proper application in the memo of body of the revision and the mistakes could have been corrected then and there, but this was not done.
8. In the case of Gowardhan Das Bansal v. State of Delhi, AIR 2009 SC 788 Apex Court has held that when the Court has admitted the revision, then it implies that it raises some arguable point.
9. Once the revision is admitted for hearing under Section 397 Cr.P.C., there is no procedure for dismissing the same in default. Even if the revisionist is absent, the revision cannot be dismissed in default, but it has to be decided on merits, as has been held by the Apex Court in the case of Madan Lal Kapoor v. Rajiv Thapar 2007 (59) ACC 788.
10. A perusal of Section 397 Cr.P.C. clearly reveals that under the Criminal Procedure Code, the High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any proceedings. This clearly goes to show that when a revision has been filed, and is admitted, it is to be decided on merit.
11. From the above discussion, it is clear that criminal revision cannot be withdrawn. Criminal revision cannot be dismissed for default, and the courts may permit corrections of accidental and bona fide mistakes in memo of revision.
12. In view of this, it is clear that there was mistakes on the part of the lawyer concerned. It is a settled view that client cannot be made to suffer for the mistakes of his lawyer.
13. The impugned order clearly reveals that the Court below has also not applied its judicial mind in permitting the withdrawal instead of directing the petitioner to correct the accidental and bona fide mistake in the memo of revision. If the memo of revision would have been amended or corrected, then there was no need to file fresh revision along with delay condonation application.
14. Considering the entire circumstances of the case, learned court below has wrongly rejected the delay condonation application.
15. In view of the above, the writ petition is allowed. The impugned order is quashed. The matter is remanded back to the court below for deciding the delay condonation application afresh in the light of the observations made above.
Order Date :- September 25, 2013 Anupam (Justice Arvind Kumar Tripathi - II)