Court No. - 34
Case :- CRIMINAL REVISION No. - 1597 of 1991 Revisionist :- Radhey Shyam Opposite Party :- State Counsel for Revisionist :- Lakshmi Kant Davey,S.D.Dwivedi Counsel for Opposite Party :- A.G.A.
Hon'ble Sudhir Agarwal,J.
1. This criminal revision under Section 401 read with Section 397 Cr.P.C. has been filed by accused, against judgment and order dated 28.10.1991 passed by Sri M.Lal, Sessions Judge, Shahjahanpur in Criminal Appeal No.10 of 1991, Radhey Shyam and others vs. State of U.P., dismissing the appeal against revisionist and partly allowing the appeal against co-accused namly Gaya Din, thereby convicting and sentencing under Section 307 IPC for three years' rigorous imprisonment and fine of Rs.500/- to revisionist, confirming conviction and sentence passed by Assistant Sessions Judge in S.T. No.410 of 1987.
2. Learned counsel for the revisionist contended that he has been falsely implicated and convicted hence judgement of Lower Appellate Court is liable to be set aside so far as conviction and sentence of revisionist has been maintained under Section 307 IPC. The Courts below have not appreciated the facts and law correctly.
3. Learned A.G.A. defended the impugned judgment and stated that after due appraisal of evidence, Lower Appellate Court has passed the order and there is no illegality or irregularity, which require interference by this Court. He submitted that scope of revision is very limited and reappraisal of evidence by Revisional Court is not permissible.
4. I have heard Sri Atul Kmar Singh, Advocate, holding brief of Sri S.D.Dwivedi, learned counsel for the revisionist, learned A.G.A. and perused the record.
5. In the matter of judicial review in criminal revision I find that this Court does not sit in appeal but the scope is very limited. It is a supervisory jurisdiction which is exercised by the Court to correct manifest error in the orders of subordinate courts but should not be exercised in a manner so as to turn the Revisional court in a Court of Appeal. The legislature has differently made provisions for appeal and revision and the distinction of two jurisdictions has to be maintained.
6. Construing old Section 439 of Criminal Procedure Code, 1898, pertaining to revisional jurisdiction, the Court in D. Stephens Vs. Nosibolla, AIR 1951 Sc 196 said that revisional jurisdiction under Section 439 of the Code ought not to be exercised lightly particularly when it is invoked by private complainant against an order of acquittal which could have been appealed against by the Government under Section 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. In other words, the revisional jurisdiction of the High Court cannot be invoked merely because the lower court has taken a wrong view of law or misappreciated the evidence on record.
7. In K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, AIR 1962 SC 1788 it was held that revisional jurisdiction should be exercised by the High Court in exceptional cases only when there is some glaring defect in the procedure or a manifest error on a point of law resulting in flagrant miscarriage of justice. However, this was also a case in which revisional jurisdiction was invoked against an order of acquittal. If the Court lacks jurisdiction or has excluded evidence which was admissible or relied on inadmissible evidence or material evidence has been overlooked etc., then only this Court would be justified in exercising revisional power and not otherwise.
8. The above view has been reiterated in Mahendra Pratap Singh Vs. Sarju Singh, AIR 1968 SC 707; Khetrabasi Samal Vs.
State of Orissa, AIR 1970 SC 272; Satyendra Nath Dutta and another Vs. Ram Narain, AIR 1975 SC 580; Jagannath Choudhary and others Vs. Ramayan Singh and another, 2002(5) SCC 659; and, Johar and others Vs. Mandal Prasad and another, 2008 Cr.L.J. 1627 (S.C.).
9. In Duli Chand Vs. Delhi Administration, 1975(4) SCC 649 the Court reminded that jurisdiction of High Court in criminal revision is severely restricted and it cannot embark upon a re- appreciation of evidence. While exercising supervisory jurisdiction in revision the Court would be justified in refusing to re-appreciate evidence for determining whether the concurrent findings of fact reached by learned Magistrate and Sessions Judge was correct.
10. In Pathumma and another Vs. Muhammad, 1986(2) SCC 585 reiterating the above view the Court said that in revisional jurisdiction the High Court would not be justified in substituting its own view for that of a Magistrate on a question of fact.
11. In Munna Devi Vs. State of Rajasthan and another, 2001(9) SCC 631 the Court said:
“The revision power under the Code of Criminal procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the First Information Report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged.”
12. In Ram Briksh Singh and others Vs. Ambika Yadav and another, 2004(7) SCC 665, in a matter again arising from the judgment of acquittal, the revisional power of High Court was examined and the Court said:
“4. Sections 397 to 401 of the Code are group of sections conferring higher and superior courts a sort of supervisory jurisdiction. These powers are required to be exercised sparingly. Though the jurisdiction under Section 401 cannot be invoked to only correct wrong appreciation of evidence and the High Court is not required to act as a court of appeal but at the same time, it is the duty of the court to correct manifest illegality resulting in gross miscarriage of justice.”
13. In the light of exposition of law and scope of judicial review in revisional jurisdiction, I find that there is nothing to show that Court below has failed to consider any material evidence in favour of revisionist or has not appreciated the evidence. There is no illegality or perversity in the impugned order of conviction and sentence passed by Lower Appellate Court and no ground has been made out for interference in a revisional jurisdiction.
14. At this stage, learned counsel for the revisionist submitted that this civil revision is pending for last 28 years and revisionist is now about 60 years of age. He has already undergone some period in jail and therefore, sentence be reduced to the period already undergone.
15. In the matter of awarding punishment multiple factors have to be considered by this Court. The law regulates social interests, arbitrates conflicting claims and demands. Security of individuals as well as property of individuals is one of the essential functions of the State. The administration of criminal law justice is a mode to achieve this goal. The inherent cardinal principle of criminal administration of justice is that the punishment imposed on an offender should be adequate so as to serve the purpose of deterrence as well as reformation. It should reflect the crime, the offender has committed and should be proportionate to the gravity of the offence. Sentencing process should be sterned so as to give a message to the offender as well as the person like him roaming free in the society not to indulge in criminal activities but also to give a message to society that an offence if committed, would not go unpunished. The offender should be suitably punished so that society also get a message that if something wrong has been done, one will have to pay for it in proper manner irrespective of time lag.
16. Further sentencing process should be sterned but tampered with mercy where-ever it is so warranted. How and in what manner element of leniency shall prevail, will depend upon multifarious reasons including the facts and circumstances of individual case, nature of crime, the matter in which it was committed, whether preplanned or otherwise, the motive, conduct, nature of weapon used etc. But one cannot be lost sight of the fact that undue sympathy to impose inadequate sentence would do more harm to justice system as it is bound to undermine public confidence in the efficacy of law. The society cannot long endure such serious threats. It is duty of the court to give adequate, proper and suitable sentence having regard to various aspects, some of which, are noticed above.
17. In Ahmed Hussein Vali Mohammed Saiyed and another Vs. State of Gujrat, 2009 (7) SCC 254, the Court confirmed that:
"any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system". (Emphasis added)
18. In Jameel Vs. State of Uttar Pradesh, 2010 (12) SCC 532, the Court held that:
"It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence."
19. In Guru Basavaraj @ Benne Settapa Vs. State of Karnataka, 2012 (8) SCC 734, the Court said that:
"The cry of the collective for justice, which includes adequate punishment cannot be lightly ignored."
20. In Gopal Singh Vs. State of Uttarakhand, 2013 (3) JT 444, the court said that:
"Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence"
21. In Hazara Singh Vs. Raj Kumar and another, 2013 (9) SCC 516, the Court observed that:
"We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The Court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment". (Emphasis added)
22. The revisionist has not shown that punishment, awarded by court below, is unjust, arbitrary or otherwise illegal. However, what it is trying to take advantage is that the act of the Court should come to his rescue inasmuch as it is this Court which has taken two decades and more and taking up this revision and this should come to rescue of the revisionist for making reduction in punishment drastically though otherwise what has been done by the court below cannot be said per-
se illegal, unjust or improper. It is well settled that the act of the court prejudice none. The failure of this court in taking up these matters within the reasonable time should not become a hand to the offender like present one to claim reduction in the punishment as a matter of right ignoring the fact that the society requires that an offender should be punished adequately and over the above the victim, who has suffered, is waiting for its own rights in having the offender punished suitably, even if the system of justice takes a long time. The delay in Courts cannot become a factor to convert and accused as a victim ignoring all the rights of the actual victim, who has suffered, his family and the society in shown. Moreover, when the finding of guilty and punishment imposed by the court below is not found erroneous in any manner. I am of the view that such an order of the courts below cannot be interfered in exercise of revisional jurisdiction of this Court.
23. Dismissed.
24. The accused, Radhey Shyam is on bail. His bail bonds and surety bonds are cancelled. The Chief Judicial Magistrate concerned shall cause him to be arrested and lodge in jail to serve out the sentence passed against him. The compliance shall be prepared within two months.
25. Certify this judgment to the lower Court immediately.
Order Date :- 31.7.2019 KA