Allahabad High Court
Kulbul And Others vs State Of U.P. on 16 November, 2022
Author: Gautam Chowdhary
Bench: Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 87 Case :- CRIMINAL REVISION No. - 987 of 1995 Revisionist :- Kulbul And Others Opposite Party :- State of U.P. Counsel for Revisionist :- K.S. Tiwari,Vivekanand Counsel for Opposite Party :- .../Govt. Advocate,Kalp Nath,Shri Prakash Dwivedi Hon'ble Dr. Gautam Chowdhary,J.
List revised. None appears for the revisionists to press this revision.
The matter is very old one pending since 1995. With the assistance of learned A.G.A. I have through the pleadings, grounds as also reliefs sought by the revisionist.
This criminal revision has been filed against the judgment and order dated 07.08.1995 passed by learned Sessions Judge, Mirzapur in Criminal Appeal No. 9 of 1995 (Kulbul and others Vs. State of U.P. and another) whereby appeal filed by the revisionists has been dismissed affirming the Judgement and order of conviction dated 09.03.1995 passed by learned Additional Chief Judicial Magistrate, Ist, Mirzapur in Criminal Case No. 1118 of 1991 (State Vs. Kulbul and others) whereby the revisionist no.1 has been sentenced to undergo R.I. of one year for the offence under Section 148 I.P.C., to undergo R.I. of one year under Section 324 read with Section 149 I.P.C. to undergo R.I. of six months under Sections 323 read with Section 149 I.P.C. and that the revisionist nos. 2 to 9 has been sentenced to undergo R.I. of six months under Section 147 I.P.C. to undergo R.I. of one year under Section 324 I.P.C.read with Section 149 I.P.C. to undergo R.I. of six months for the offence under Section 149 I.P.C.
It has been averred in the instant revision that the trial Court has erred in believing the testimony of the witnesses. He has further argued that whole approach of the trial Court, convicting and sentencing the accused-revisionist is incorrect. The impugned judgment and order suffers from gross illegality, which has resulted in miscarriage of justice and, therefore, this Court, in exercise of jurisdiction under Section 397/401 CrPC, should set-aside the impugned judgment and order passed by the Courts below and the accused-revisionist is liable to be acquitted from the charges levelled against him.
Per contra, learned A.G.A. has submitted that the trial Court has correctly analyzed the evidence and has rightly come to the conclusion that the prosecution has proved its case beyond reasonable doubt against the accused-revisionist. He has further submitted that the impugned judgment and order has been passed by the trial Court after analyzing the evidence in detail, which is not liable to be interfered with by this Court in exercise of jurisdiction under Section 397/401 CrPC. He has further submitted that the view taken by the Courts below is not an impossible view and, therefore, this Court should not interfere with the order of conviction, and he has prayed for dismissal of the revision.
I have considered the pleadings made in the present revision, submissions advanced by the learned Additional Government Advocate, representing respondent-State, including the evidence led by the prosecution in support of its case.
The revision jurisdiction of the High Court as contemplated under Section 401 of Cr.P.C. operates within narrow limits and can be exercised only in exceptional cases where interests of public justice require interference for the correction of gross miscarriage of justice. It cannot be exercised because the lower court has taken a wrong view of the law or mis-appreciated evidence on record. The revision power of the High Court is to be exercised when there is manifest error of law or glaring defect in the procedure.
In the instant case, close scrutiny of evidence reveals that on the basis of evidence, learned trial Court has rendered that the prosecution version was established. Considering the entire evidence, it cannot be said that the findings rendered by learned trial Court are perverse or suffers from any illegality or error of jurisdiction. It is well settled that the revision Court generally would not re-appreciate evidence and would not substitute findings of fact unless the findings of Court below is not based on evidence or suffers from perversity or illegality. It is also well settled, if on the basis of evidence two views are possible, the view favourable to accused persons has to be taken. In the instant case, considering entire evidence it cannot be said that the impugned judgment and orders suffer from any such illegality, perversity or error of jurisdiction so as to warrant any interference by this Court.
However considering the fact, more than 27 years have lapsed from the date of order passed by the learned Magistrate, this Court is of the opinion that sentence of punishment may be converted into fine in view of the Judgement rendered in the matter of Majister @ Budhpal versus State of U.P. in 2004 (49) ACC 539 wherein this Court has taken note of the fact that 19 years have elapsed since the date of revision and the accused was on bail during the pendency of revision and therefore, sending the accused to jail after lapse of 17 years would be against humanitarian approach and therefore, liberty was given to avail the benefit of provisions of Section 433(d) Cr.P.C. and the imprisonment was converted into fine.
Paragraph 8, relevant part of paragraph-9 and paragraph 10 of the aforesaid judgment is quoted hereinunder:-
"8. Section 433 (d) aforesaid provides for commutation of sentence of simple imprisonment for fine by the appropriate Government. In the leading case of N. Sukumaran Nair v. Food Inspector, Mavelikara, the Supreme Court in such circumstances provided such relief as being permissible to an accused. Para 3 of the judgment is extracted below-
"The offence took place in the year 1984. The appellant has been awarded six months simple imprisonment and has also been ordered to pay a fine of Rs. 1000. Under clause (d) of Section 433 of the Code of Criminal Procedure, "the appropriate government" is empowered to commute the sentence of simple imprisonment for fine. We think that this would be an appropriate case for commutation of sentence where almost a decade has gone by. We therefore, direct the appellant to deposit in the Trial Court a sum of Rs. 6,000/- as fine in commutation of the sentence of six months' simple imprisonment within a period of six weeks from today and intimate to the appropriate government that such fine has been deposited. On deposit of such fine, the State Government may formalize the matter by passing appropriate orders under clause (d) of Section 433 of the Code of Criminal Procedure."
9. In the case of Maqbool Ahamed v. State of U.P.(supra), learned Single Judge of this Court relying upon the aforesaid N. Sukumaran Nair v. Food Inspector, Mavelikara, altered the sentence awarded in such a case of food adulteration to the accused to six months simple imprisonment and also directed the State Government that instead of sentence of actual imprisonment he would pay fine which shall be deposited within stipulated period and then he would move an application before the State Government which on receipt of such application shall formalize the matter under the provisions of section 433 (d) of the Code of Criminal Procedure.
10. In the case of Prem Chand v. State of U.P. (supra) and Roop Chand v. State of U.P. (supra), learned single Judge has also preferred to adopt the same view of the matter to provide benefit of alternative to the accused under Section 433(d) aforesaid for the purposes to avoid his further sufferance in jail, which in the circumstances of the aforesaid case was not justified."
Reduction of sentence, as awarded in such case under the prevention of Food Adulteration Act is permitted as has also been held by the Hon'ble Apex Court in the matter of Haripada Das v. State of W.B. and another reported in 1998 (9) SCC 678.
After perusing the record as well as the averments contained in the present revision, this Court is of the opinion that as 27 years have elapsed since the date of revision and the revisionist has remained on bail during the pendency of revision, this Court thinks appropriate for commutation of sentence whereby more than two decades have gone by.
This Court, therefore, directs the revisionist to deposit before the concerned Chief Judicial Magistrate a sum of Rs. 2,000/- as fine in commutation of sentence awarded to the revisionist within a period of two months from today and intimate to the appropriate government that such fine has been deposited. On deposit of such fine, the State Government may formalize the matter by passing appropriate orders under clause (d) of Section 433 of the Code of Criminal Procedure.
Let a copy of this judgement be sent to the concerned Court for necessaru compliance.
With the aforesaid directions, present revision is finally disposed of.
Order Date :- 16.11.2022 S.Ali