Reserve Judgment
Court No. - 40
Case :- CRIMINAL REVISION No. - 760 of 1988 Revisionist :- Bhola Singh And Others Opposite Party :- State And U.P.
Counsel for Revisionist :- M.A. Qadeer,B.B.Paul,Deepak Dubey,M.C. Agarwal Counsel for Opposite Party :- V.S. Saxena,A.G.A.,I.N. Misra,M. Islam
Hon'ble Shashi Kant,J.
1. Heard Sri Deepak Dubey, learned counsel for the revisionists and Sri Amit Raj Chaurasiya, learned A.G.A. appearing for the State of U.P.
2. This criminal revision under Section 397/401 Criminal Procedure Code, 1973 (in short “Cr.P.C.”) has been filed by the revisionists against the judgment and order dated 08.06.1988 passed by Vth Additional Sessions Judge, Fatehpur in Criminal Appeal No. 5 of 1988 – Bhola Singh and 3 Others Vs. State of U.P., whereby the aforesaid Criminal Appeal was dismissed and the judgment and order dated 16.01.1988, passed by the Munsif Magistrate, Khaga, District - Fatehpur in Criminal Case No. 622 of 1985, whereby the revisionists were convicted and sentenced under Sections 452 and 323/34 of Indian Penal Code, 1860 (in short “I.P.C.”) for six months' R.I., was confirmed.
3. Being aggrieved from the impugned judgment and orders the accused-revisionists have filed the present revision.
4. Learned counsel for the revisionists contended that since the parties have entered into compromise outside the Court and the fact of compromise between the parties has been verified by the Trial Court, in this view of the matter, this revision deserves to be allowed in terms of compromise and the revisionists be acquitted accordingly.
5. On pointing out the fact that offence under Section 452 I.P.C. is not compoundable, in respect to Secction 452 I.P.C. learned counsel for the revisionists confined his challenge and prayer only to the sentence part of the impugned judgment and orders. He drew attention of the Court towards the fact that the accused-revisionist nos. 1 and 3 are aged about 57 and 53 years respectively, they have settled in life, under family obligations and have served some part of the sentence. They were first time convicted and punished by the court on 16.01.1988, appeal filed by him has been decided on 08.06.1988. The revisionists filed this revision against the impugned judgment and orders passed by the courts below in the year 1988 and were granted bail vide order dated 14.06.1988 passed by this Court while the instant revision is being heard after laps of more than 28 years.
6. In the above circumstances this Hon'ble Court may take lenient view and graciously modify the sentence awarded to them for the period undergone alongwith fine. In case this Hon'ble court finds it desirable to impose the fine the revisionists will not treat it as enhancement of sentence.
7. Per contra learned A.G.A. opposed the above arguments by submitting that any compromise between the parties could not materialize at the revisional stage. Moreover, Section 452 I.P.C. is not compoundable in view of the above, this revision is devoid of merits and liable to be dismissed.
8. I have thoughtfully considered the submissions raised by learned counsel for the parties and carefully perused the record.
9. Perusal of record reveals that during pendency of this revision the accused-revisionist nos. 2 and 4 namely Lusuru @ Laxmi Prasad and Ram Bishal have died and the revision filed by them was abated vide order dated 18.07.2016. Now this revision is confined to accused-revisionist nos. 1 and 3 namely Bhola Singh and Kamal Singh only.
10. The parties have entered into a compromise agreement out side the Court and the same has been brought on record by way of filing a supplementary affidavit dated 05.08.2016, a copy of the compromise agreement is Annexure SA-1 to the supplementary affidavit.
11. Vide order dated 15.11.2016, the aforesaid compromise agreement was sent to the Trial Court for verification.
12. After verification of the aforesaid compromise the Distrtict Judge, Fatehpur submitted his report dated 24.01.2018 which is available on record.
13. To buttress his submissions learned counsel for the revisionist placed his reliance on Nand Lal Vs. State of Uttarakhand and others reported in (2010) 4 SCC 562 paragraph no. 3, 4 and 5 of above decision read thus:-
"1. The learned counsel appearing for the appellant urged that the appellant had been wrongly convicted of the offence alleged against him since the mustard oil in question had been purchased by the appellant from the open market and was not meant for human consumption, but to be used for lighting lamps during Deepawali. It may immediately be indicated that the said defence of the appellant was not accepted by the trial court, the appellate court of the High Court. Learned counsel then pleaded that since the incident is alleged to have taken place about 27 years ago, the sentence of the appellant may be reduced to the period already undergone by him. In fact, notice was issued on 29.09.2006, on the said ground.
2. Having heard the learned counsel for the parties and having regard to the fact that the incident had taken place almost 27 years ago and the appellant is now more than 70 years of age, suffering from several medical ailments, we are inclined to accept the submission made on behalf of the appellant for reduction of his sentence.
3. In that view of the matter and in circumstances mentioned herein above, we allow the appeal to the extent that while maintaining the conviction of the appellant, we reduce his sentence to the period already undergone. Let the appellant be discharged form his bail bonds."
He also placed reliance on the decision of Suresh Vs. State of U.P. Criminal Revision No. 597 of 1990 decided on 18.02.2016 relevant part of the above judgment read thus:-
"Submission of learned counsel is that alleged offence is said to have been committed on 2.11.1988. Further, sending the revisionist to jail after a period of 28 years would not be at all in the interest of justice. Moreover, revisionist has already served out nearly one month in jail. Learned counsel does not address the Court on merit of the revision but confines his plea on the quantum of sentence. He states that raise in amount of fine will not amount to enhancement.
Revision is dismissed. Judgment and orders passed by courts below are confirmed with the modification that revisionist is sentenced to period undergone in addition to fine of Rs. 5000/-. He will deposit a sum of Rs. 5,000/- as fine, within three months. In default of payment, revisionist will face further simple imprisonment of one month".
14. In the above circumstances, this Hon'ble court may take a view of leniency and graciously modified the sentence awarded to revisionists to the period already undergone alongwith fine. In case this Hon'ble Court finds it desirable to enhanced the fine, the revisionists will not treat the same as enhancement of sentence.
15. Considering the factum of compromise between the parties and its verification by the Trial Court, I find it desirable that conviction and sentence of the accused-revisionists under Section 323/34 I.P.c. be set aside. However, in view of the fact that that offence punishable under Section 452 I.P.C. is non-compoundable, the accused- revisionists are not entitled for setting aside their conviction and sentence provided by the Courts below under this Section.
16. For the aforesaid conviction and sentence of the accused- revisionists under Section 323/34 I.P.C. by the Courts below is set aside.
17. As far conviction and sentence awarded under Section 452 I.P.C. is concerned, the orders of conviction of the accused- revisionists under the above Section is confirmed. However, sentence part of this Section, considering the facts that the accused-revisionist nos. 1 and 3 are aged about 57 and 53 years respectively, they have settled in life, under family obligations and have served some part of the sentence. This revision against the impugned judgment and orders passed by the courts below in the year 1988 and were granted bail vide order dated 14.06.1988 passed by the Court while the instant revision is being heard after laps of more than 28 years. Coupled with the above facts keeping in view the factum of compromise arrived between the parties, I am of the view that ends of justice would be served if the revisionists are sentenced for the period undergone alongwith fine of Rs.10,000/- each, which shall be deposited within sixty days from today, failing which they will serve additional simple imprisonment of one month. The accused-revisionists will be entitled to adjustment of the amount of fine deposited by them, if any.
18. In view of the above, this revision is partly allowed.
19. The impugned judgment and orders are modified accordingly to the above extent.
20. Office is directed to certify this order to the Courts below for necessary compliance. The lower Court's record shall be remitted back to the Court concerned forthwith.
Order Date :- 30.5.2018 A. Verma