Allahabad High Court
Afsari Akbar Qayyum And 2 Others vs State Of U.P And Another on 29 July, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Court No. - 86 Case :- APPLICATION U/S 482 No. - 21400 of 2022 Applicant :- Afsari Akbar Qayyum And 2 Others Opposite Party :- State Of U.P And Another Counsel for Applicant :- Ambreen Masroor,Sr. Advocate Counsel for Opposite Party :- G.A. Hon'ble Shree Prakash Singh,J.
1. Heard learned counsel for the applicants, learned counsel for the State-respondent and perused the record.
2. By instituting the instant application, a prayer has been made for quashing of the order dated 18.06.2022 passed by the learned Additional Sessions Judge, Court No.12, Moradabad in Criminal Revision No.94 of 2020 arising out of Case Crime No.1378 of 2017, under Section 420, 467, 468, 471, 120-B IPC, Police Station-Civil Lines, District-Moradabad, which is pending in the court of learned Additional Sessions Judge, Moradabad.
3. Factual matrix of the case is that, one of the owner of the property Smt. Ram Kali Devi sold out her half of the portion from the land in question to the three persons namely, Vineet Kishore Jain, Sitaram and Shiv Autar Agarwal vide registered sale deed dated 15.03.1990 and out of sale consideration amounting Rs.1,50,000/- Rs.20,000/- was paid at the time of execution of sale deed and remaining amount of Rs.1,30,000/- was agreed to be paid and later on the same was also paid. After receiving the entire sale consideration, Smt. Ram Kali Devi challenged the said sale deed by way of filing a Original Suit No.348 of 1991. Thereafter, written statement was filed on 13.08.1991. The suit was decreed on 13.03.2015, in favour of vendor. Further, another petition was filed by the applicants under Article 227 bearing No.5000 of 2018, which was dismissed by this Court on 18th July, 2018. The vendee, Vineet Kishore Jain filed an application under Order IX Rule 13 of C.P.C. for setting aside the ex parte judgment and decree dated 13.03.2015 and the aforesaid application was allowed and the ex parte judgment was recalled vide order dated 09.01.2022. He submits that an FIR was lodged on 30.11.2017 by one Sunita Singhal, under Sections 420, 467, 468, 471, 506 IPC against the present applicants as the applicants claimed their right in property in question on the basis of "Hibanama". The matter was investigated by the police and charge sheet was filed and thereafter cognizance was taken by the court below. The applicant filed an application under Section 245(2) of Cr.P.C. which was dismissed vide order dated 2.11.2020 by the Chief Judicial Magistrate and fixed the date on 18.11.2020 for framing of charges.
4. Being aggrieved with the order dated 2.11.2020, the applicants filed, Revision No.94 of 2020 on 11.11.2020 in which a prayer was made by the present applicants that there are certain additional documents and evidence, which may be permitted to file and the same may be taken on record for the proper adjudication of the matter. The aforesaid revision was rejected vide order dated 18.06.2022, by Additional Sessions Judge, Court No. 2, Moradabad wherein the following findings have been recorded, which are read as under:-
"??????? ????????? ?? ?????? ???? ?? ?? ?????? ???? ???????? ?? ?o???o??o ???? 401 ?? ???????1 ?? ??????? ????? ?? ?????? ???? ???????? ?????? ???? 399(1) ?o???o??o ?? ???????? ??? ???? ?? ???? ?? ?? ?????? ???? ????????? ?? ????? ??????? ???"
5. The submissions of the learned counsel for the applicants are that, the Additional Sessions Judge can exercise all the powers of Session Judge, given in Chapter XXX of the Cr.P.C. in respect with any case transferred to him by general or special order of the Sessions Judge.
6. He added that under the provision of Section 400 of Cr.P.C., it has specifically been mentioned that an Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under this Chapter in respect of any case which may be transferred to him by or under any general or special order of the Sessions Judge. He next submits that under the mandate of the aforesaid provision, the Additional Sessions Judge while hearing the matter in a revision exercised all the powers of Session Judge which is envisaged under Chapter XXX of Cr.P.C. which are referred to him by an special or general order of the Sessions Judge. In support of his contention he has referred the judgment of Vinod Kumar Vs. Smt. Mohrawati reported in 1990 Crl. LJ 2018 and submits that in this matter the Court has held that the Sessions Judge can take additional evidence in revision.
7. Placing reliance on the aforesaid judgment, he added that the Court has very categorically held that since the learned Sessions Judge examined the question of taking the additional evidence in view of the powers conferred on him by sub-Section (1) of Section 399 of Cr.P.C. which is the analogous provisions of Section 401 of Cr.P.C., therefore additional evidence in revision can very well be taken by the learned Sessions Judge.
8. He further placed reliance on a judgment in case of Vishram Singh Vs. State of U.P. and another reported in (37326) under Section 482) 2018 and has referred the ratio of the judgment wherein, it has been held that Appellate Court if it thinks fit, can take additional evidence wherever, it is necessary and shall record reasons himself or by directing it to the Magistrate concerned to do so. The relevant paragraph of the aforesaid judgment reads as under:-
"Section 399 of Cr.P.C. deals with Sessions Judge's powers of revision. As per sub-section (1) of Section 399 Cr.P.C. the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub-section (1) of Section 401 Cr.P.C. Sub-section (1) of Section 401 Cr.P.C. confers power upon the High Court, while acting in revisional jurisdiction to exercise any of the powers conferred on a Court of Appeal by Section 391 Cr.P.C. As quoted above in sub-section (1) of Section 391 Cr.P.C., the Appellate Court, if it thinks additional evidence to be necessary, shall record its reason and may either take such evidence itself, or direct it to be taken by a Magistrate. A combined reading of above mentioned provisions of Code of Criminal Procedure clearly shows that the power of Sessions Court while acting in revisional jurisdiction is the same as that of High Court with regard to taking additional evidence in revisional jurisdiction. It also becomes so clear that the High Court's powers of revision includes the powers conferred on a Court of Appeal by Section 391 of Code of Criminal Procedure which provides to take additional evidence while hearing the appeal. That brings the Court of Session and the High Court on the same footing so far as it relates to the power of taking additional evidence during the course of its hearing in revision."
9. Referring the aforesaid judgment, he submits that it has been settled that learned Sessions Judge under Section 399 of Cr.P.C. is having an analogous powers as has envisaged under Section 401 of Cr.P.C. He next submits that in Section 400 of Cr.P.C. the Additional Sessions Judge has empowered to exercise all the powers of Sessions Judge under Chapter XXX thus, the Additional Sessions Judge can call additional evidence. Thus, submission is that the finding recorded by the learned Additional Sessions Judge, under challenge in this application, is perverse and erroneous and is liable to be set aside.
10. On the other hand, learned counsel appearing for the State submitted that the order passed by the learned Additional Sessions Judge is not assailing any illegality or infirmity and, as such, the same he is not liable to be interfered.
11. He added that Section 399 (1) of Cr.P.C. is very clear on this point that Sessions Judge in the case of any proceeding where the record of which has been called by himself can exercise all the powers as the High Court exercise its power under Section 401 of Cr.P.C. He submits that this is not open to the Additional Sessions Judge for calling additional evidence as is evident from the bare perusal of the Section 400 of Cr.P.C.
12. Having heard learned counsel for the parties and after perusal of records, it reveals that Additional Sessions Judge while passing the order dated 18.06.2022 has recorded the finding that Sessions Judge can exercise the powers under Section 399 of Cr.P.C. which is analogous to Section 401 of Cr.P.C., in an event where the Sessions Judge himself has called for the record.
13. Before entering into the question that whether criminal revisional court is empowered to take additional evidence in the revisional proceedings or not, the provisions which attracts i.e., Section 399, 401, 391 of Cr.P.C. are liable to be quoted hereunder:-
"399. Sessions Judge's powers of revision.
(1) In the case of any proceeding the record of which has been called for by himself the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under Sub-Section (1) of section 401.
(2) Where any proceeding by way of revision is commenced before a Sessions Judge under Sub-Section (1), the provisions of Sub-Sections (2), (3), (4) and (5) of section 401 shall, so far as may be, apply to such proceeding and references in the said subsections to the High Court shall be construed as references to the Sessions Judge.
(3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court.
14. Above said section deals with the provisions of regarding power of Sessions Judge in revision and the analogous power as envisaged under Section 401 of Cr.P.C. in respect with power of revision to the High Court.
15. The revisional power of High Court has been envisaged under Section 401 (1) of Cr.P.C.
(1) In the case of any proceeding the record of which has been called for by it self or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392.
(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.
(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.
(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way if revision shall be entertained at the instance of the party who could have appealed.
(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.
16. From bare reading of Section 401 of Cr.P.C. it is evident that High Court may in its discretion exercise any of the power conferred on a court of appeal of Section 386, 389, 390, 391 meaning thereby the High Court while exercising the power under the aforesaid provision, can call for additional evidence, if necessary.
Section 391 of Cr.P.C:-
(1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate.
(2) to (4) ................................................
17. When this Court examine the order dated 18.06.2022 passed by the Additional District and Sessions Judge, it reveals that court below is conclusive that the Sessions Judge can exercise the power under Section 399 (1) which is the analogous provision to Section 401 (1) of Cr.P.C. The court below, though is of the aforesaid view but has erred to consider that in Section 401 (1) of Cr.P.C., the High Court is empowered to exercise its discretion which is conferred upon a court of appeal, by virtue of Section 386, 389, 390, and 391 of Cr.P.C.
18. This Court is of considered opinion that as per the provision of Section 391 of Cr.P.C., the appellate court is empowered and can call additional evidence. Further as per the provisions of Section 401, the High Court, in its discretion, exercise any of the powers conferred on a court of appeal by Section 386, 389, 390 and 391. Thus, once the High Court is empowered to call the additional evidence, while exercising its revisional power, then Sessions Judge under Section 399(1) of Cr.P.C. by operation of law, is also empowered to call an additional evidence.
19. So far as the power of Additional Sessions Judge under Section 400 of Cr.P.C. is concerned, bare reading reveals that 'Additional Sessions Judge shall have exercised all the powers of Sessions Judge' under chapter XXX of Cr.P.C. Had their been any intent of the legislature, not to give the power to Additional Sessions Judge equivalent to the Sessions Judge, certainly there would have been overt provisions, in this section. This Court is of considered opinion that the power of Sessions Judge under Section 399 of Cr.P.C., vest in toto, in an Additional Sessions Judge, when he exercises the powers under Section 400 of Cr.P.C.
20. In view of the submissions and discussions aforesaid, the order dated 18.06.2022 passed by the learned Additional Sessions Judge, Court No. 12 Moradabad in Criminal Revision No. 94 of is erroneous and hence is not sustainable.
21. Consequently, the order dated 18.06.2022 in Criminal Revision No. 94 of 2022 is hereby set aside.
22. The matter is remitted back to the court below to proceed in accordance with observations made above.
22. The instant application is allowed accordingly.
Order Date :- 29.7.2022 Ujjawal