# Badan Singh Revisionist v. State of U.P - **Citation:** (2016) 4 ILRA 989 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-04-01 - **Bench:** Sudhir Agarwal - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/badan-singh-revisionist-v-state-of-u-p-43712 - **Pages:** 9 ## Text 4 All. Badan Singh Vs State Of U.P. 989 parties have received training N.T.T. from an institution entitled to impart training for childhood in the age group of 4-6 followed by two years in formal school, are not eligible to teach class 1 to 5, in Institutions run and managed by Basic Shiksha Parishad. 35. No order as to cost. ---------- REVISIONAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 01.04.2016 BEFORE THE HON'BLE SUDHIR AGARWAL, J. Criminal Revision No.- 1372 Of 1995 Badan Singh ...Revisionist Versus State of U.P. ...Opposite Party Counsel for Revisionist: Devendra Dahma Counsel for Opposite Party: Govt. Advocate Proceedings The present matter involves a Restoration Application filed alongside a Delay Condonation Application by the revisionist seeking to recall the dismissal of Criminal Revision No. 1372 of 1995. The revisionist was initially convicted under the Prevention of Food Adulteration Act, 1954 (Sections 7/16) by the Additional Chief Judicial Magistrate, Hathras, for adulterating milk, receiving six months rigorous imprisonment and a fine of Rs. 1,000/-. Criminal Appeal No. 64 of 1994 challenging the conviction was dismissed by the Special Judge, Additional Sessions Judge, Aligarh, confirming the trial court's findings. Criminal Revision No. 1372 of 1995 was dismissed by this Court on 14.08.2015 in the absence of counsel for the revisionist. A Restoration Application was subsequently filed claiming violation of principles of natural justice. The Court examined the maintainability of such a Restoration Application under Cr.P.C., the applicability of the Probation of Offenders Act, 1958, and Section 360 Cr.P.C. After hearing arguments and reviewing case law, the Court concluded that the Restoration Application is not maintainable and that no statutory provision allows such relief in the present context. 990 INDIAN LAW REPORTS ALLAHABAD SERIES Procedure The trial court recorded conviction under Sections 7/16 of the Prevention of Food Adulteration Act, 1954. Appeal process followed under the Criminal Appeal jurisdiction, which was dismissed by the Additional Sessions Judge. Revision process initiated under Sections 397/401 Cr.P.C. before the High Court, leading to dismissal for nonappearance of counsel. Delay Condonation Application was filed to permit consideration of the Restoration Application. Restoration Application filed after dismissal sought recall of the judgment on grounds of natural justice. High Court reviewed relevant statutory provisions, previous judgments, and discretionary powers under the Probation of Offenders Act. The High Court relied on prior Supreme Court decisions to assess maintainability and merit. Final order: Delay condoned; Restoration Application dismissed; original conviction upheld. Penal Sections Prevention of Food Adulteration Act, 1954: Sections 7 & 16 Code of Criminal Procedure, 1973: Sections 397, 401, 360 Probation of Offenders Act, 1958: Sections 3, 4 Case Law Cited Hari Singh Mann v. Harbhajan Singh Bajwa, 2001 (1) SCC 169 - Miscellaneous applications postjudgment not maintainable under Cr.P.C. Nazma v. Javed alias Anjum, 2013 (1) SCC 376 - Filing of applications not referable to statutory provisions constitutes abuse of process. Ram Prakash v. State of Himachal Pradesh, 1972 (4) SCC 46 - Probation Act not automatically applicable to offenders under PFA Act; food adulteration is a serious public health offence. Dalbir Singh v. State of Haryana, AIR 2000 SC 1677 - Discretion under Section 4 Probation Act to be exercised considering circumstances and nature of offence. Daljit Singh v. State of Punjab, JT 2006 (7) SC 98 - Section 360 Cr.P.C. inapplicable where Probation Act applies. State of Gujarat v. Jamnadas G. Pabri and others, 1975 2 SCR 330 - Interpretation of "expedient" under Probation of Offenders Act. Ram Das v. State of U.P., Criminal Revision No. 1737 of 1998 - Seriousness of food adulteration offences emphasized. Headnotes The High Court held that a Criminal Miscellaneous Restoration Application is not maintainable in absence of statutory provisions. The court cannot act as a forum for review outside prescribed procedural safeguards. Conviction under the Prevention of Food Adulteration Act, 1954, for adulterating milk constitutes a serious public health offence; leniency under the Probation of Offenders Act, 1958, or Section 360 Cr.P.C. is not warranted in such cases. Discretion under Section 4 of the Probation Act must be exercised considering the circumstances and nature of the offence. Courts are urged to adopt a strict approach in adjudicating food 4 All. Badan Singh Vs State Of U.P. 991 adulteration cases, given the potential harm to society, especially vulnerable consumers. Delay Condonation was allowed, but restoration of revision was rejected; concurrent findings of lower courts were upheld. Miscellaneous applications post-judgment without statutory basis constitute an abuse of process. Facts Revisionist, Badan Singh, convicted for adulterating milk under PFA Act, 1954. Punishment: 6 months rigorous imprisonment + Rs. 1,000/- fine. Criminal Appeal dismissed by Additional Sessions Judge, Aligarh. Criminal Revision dismissed by High Court in absence of counsel on 14.08.2015. Restoration Application filed to recall dismissal; delay in filing sought to be condoned. Revisionist claimed eligibility under Probation of Offenders Act, 1958 and Section 360 Cr.P.C. Contentions Dismissal in absence of counsel violated natural justice; judgment should be recalled. First-time offender; entitled to benefit under Sections 3 and 4 of Probation of Offenders Act, 1958. Section 360 Cr.P.C. applicable to allow leniency. Miscellaneous application maintainable to enable hearing on merits. Analysis Maintainability: No statutory provision allows a Criminal Miscellaneous Restoration Application; post-judgment applications without basis are impermissible (Hari Singh Mann; Nazma). Courts cannot entertain such applications as a substitute for review or fresh litigation. Probation of Offenders Act: Section 3 limited to minor offences under IPC or imprisonment ≤ 2 years; not applicable here. Section 4 provides discretionary release; exercise of discretion requires consideration of offence nature, circumstances, and offender character. Adulteration of milk is a public health hazard; strict application warranted (Ram Prakash; Ram Das). Section 360 Cr.P.C.: Applicable only to young offenders or minor offences; expressly excluded in areas where Probation Act applies (Daljit Singh). Reference to Section 360 in present case misconceived; does not confer leniency. Concurrent Findings: Lower courts recorded guilt with evidence; High Court found no ground to interfere. Principles of natural justice satisfied despite absence of counsel; perusal of record justified dismissal. Public Interest: Food adulteration poses serious risk; courts must act as deterrent. Leniency could undermine public confidence and encourage repeated offences. 992 INDIAN LAW REPORTS ALLAHABAD SERIES Legal Implications: Reiterates strict approach to non-statutorily based post-judgment applications. Clarifies boundaries between probation provisions and Section 360 Cr.P.C. Conclusion The High Court dismissed the Restoration Application as not maintainable under Cr.P.C. and rejected revision on merits. The conviction and sentence under the Prevention of Food Adulteration Act, 1954, for adulterating milk were upheld due to the serious nature of the offence and potential public health impact. While the delay in filing the restoration application was condoned, principles of natural justice were adequately met, and no statutory or substantive ground existed to interfere with the concurrent findings of the lower courts. The case reinforces the non-applicability of probation or Cr.P.C. leniency provisions in offences endangering public health and emphasizes stringent judicial measures against food adulteration. (Delivered by Hon'ble Sudhir Agarwal, J.) 1. This is a Restoration Application along with Delay Condonation Application. 2. Heard Sri Devendra Dhama, Advocate, for applicant-revisionist and Sri Syed Ali Murtaza, learned A.G.A. for State. 3. Applicant-revisionist, Badan Singh, was tried in Criminal Case No. 1808 of 1991 in Court of Additional Chief Judicial Magistrate, (Economic Offences), Hathras under Section 7/16, Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "Act, 1954"), and, having been convicted, was punished with sentence of six months rigorous imprisonment and fine of Rs. 1000/- vide judgment dated 15.11.1994. Thereagainst he preferred Criminal Appeal No. 64 of 1994 which has also been dismissed by Sri Dhani Ram, Special Judge, Additional Sessions Judge, Aligarh vide judgment dated 28.10.1995 and Lower Appellate Court has confirmed sentence and punishment order of Trial Court. 4. Both the Courts below have recorded a concurrent finding of fact that accused-applicantrevisionist was guilty of adulteration in milk, hence was liable for punishment. 5. Both the aforesaid judgements were assailed by revisionist in Criminal Revision No. 1372 of 1995 filed under Section 397/401 Cr.P.C. before this Court. Matter was taken up for final disposal/ hearing on 14.08.2015 when no counsel appeared on behalf of revisionist, hence, this Court perused the record and finding no reason to interfere, dismissed revision vide judgment dated 14.08.2015. This application has been filed seeking recall of judgment dated 14.08.2015 after condoning delay in filing the application. 6. Learned A.G.A. appearing for respondent submitted that he may not have any objection in condoning of delay in filing Misc. Applications, but he submits that Misc. Applications, and, that too, a Criminal Misc. Restoration Application is not maintainable under any provision of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C."). In fact this application amounts to 4 All. Badan Singh Vs State Of U.P. 993 review of this Court's judgment dated 14.08.2015 and in absence of any provision, it is not maintainable. He placed reliance on Apex Court's decision in Hari Singh Mann Vs. Harbhajan Singh Bajwa 2001 (1) SCC 169 and Nazma Vs. Javed alias Anjum 2013 (1) SCC 376. 7. In Hari Singh Mann (supra) Court has said that no review of an order is contemplated under Cr.P.C. Filing of Misc. Application is not referable to any provision of Cr.P.C. or Rules of the Court and hence cannot be resorted to as a substitute of fresh litigation. The court deprecated filing of Misc. Petitions after disposal of main case. Such applications not referable to any statutory provision amount to abuse of process of Court. The aforesaid view has been reiterated in Nazma Vs. Javed (supra). 8. When called upon, learned counsel for revisionist could not place any provision either in Cr.P.C. or in the High Court Rules whereunder he has moved the aforesaid application. He, however, submitted that since revision has been dismissed in absence of counsel for revisionist, therefore, it would be justifiable to recall the said order and decide this revision after hearing counsel for revisionist as it would be consistent with principles of natural justice. 9. Considering the above authorities of Apex Court and factum that no statutory provision has been shown to this Court under which application in question has been filed, I do not find that this application deserves to be allowed and on the contrary it has to be rejected. However, to satisfy myself that accused-revisionist has not suffered for the fault of his counsel by absenting the Court on 14.08.2015 and passing of order by this Court in Revision suo motu after perusal of record, I permitted counsel for applicant-revisionist to point out any ground which may warrant interference in the concurrent findings recorded by two Court below in respect to conviction and sentence by revisionist. 10. Only argument advanced is that accused revisionist, a first time offender, ought to have been given benefit under Probation of Offenders Act, 1958 (hereinafter referred to as "Act, 1958") and reliance is placed on Sections 3 and 4 of Act, 1958. From a perusal of Sections 3 and 4, I find that same are not applicable in the case in hand. 11. Section 3 of Act, 1958 reads as under: "3. Power of court to release certain offenders after admonition.--When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4 release him after due admonition. 994 INDIAN LAW REPORTS ALLAHABAD SERIES Explanation.--For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4." 12. Here is not a case where revisionist has been found guilty under Section 379, 380, 381, 404 or 420 I.P.C. Another category of cases in which Section 3 can be acted upon is where a person is found guilty of an offence punishable by imprisonment for not more than two years or with fine or with both under Indian Penal Code or any other law. In the present case, revisionist has been convicted under Section 7/16 of Act, 1954 and punishment prescribed therefor is minimum six months imprisonment extendable to three years and with fine which shall not be less than one thousand rupees. Hence, Section 3 is not attracted. 13. So far as Section 4 is concerned, it gives a discretion to Court that it may release the accused on probation of good conduct having regard to circumstances of case including nature of offence and character of offender. Sub-section 2 of Section 4 further requires that Court shall take into consideration the report, if any, of Probation Officer concerned. 14. Section 4 has been considered in Ram Prakash Vs. State of Himanchal Pradesh 1972 (4) SCC 46 wherein accused, convicted under Act, 1954 for selling adulterated milk, claimed benefit of Act, 1958 by referring to Section 4. Court observed that even if Section 4 of Act, 1958 can be applied where a person is found guilty of offence under Act, 1954, but Section 4 would not be attracted automatically, but has to be seen in the light of language of provisions. It talks of a case where Court may consider the circumstances of case, nature of offence and character of offender. Having said so, Court further said as under: " .... adulteration of food is a menace to public health. The Act has been enacted with the aim of eradicating that anti-social evil and for ensuring purity in the articles of food. In view of the above object of the Act and the intention of the Legislature as revealed by the fact that a minimum sentence of imprisonment for a period of six months and a fine of rupees one thousand has been prescribed the Courts should not lightly resort to the provisions of the Probation Act in the case of persons above 21 years of age found guilty of offences under the Act. Following that view, we consider that this is not a fit case in which the provisions of Section 4 of the Probation Act should be applied." 15. The above observations are applicable with full force to the facts of present case also. 16. Again in Dalbir Singh Vs. State of Haryana AIR 2000 SC 1677, the Court clearly said that Section 4 can be applied only when Court forms such opinion considering the circumstances and nature of offences etc. and not otherwise. In para 9 and 10, it said: "9. Thus Parliament has left it to the court to decide when and how the court should form such opinion. It provided sufficient indication that releasing the convicted person on probation of good conduct must appear to the court to be expedient The word "expedient" had been thoughtfully 4 All. Badan Singh Vs State Of U.P. 995 employed by the Parliament in the section so as to mean it as "apt and suitable to the end in view". In Black's Law Dictionary the word expedient is defined as "suitable and appropriate for accomplishment of a specified object" besides the other meaning referred to earlier. In State of Gujarat v. Jamnadas G. Pabri and others [1975] 2 SCR 330 a three Judge Bench of this Court has considered the word "expedient". Learned Judges have observed in paragraph 21 thus: Again, the word 'expedient' used in this provisions, has several shades of meaning. In one dictionary sense, 'expedient' (adj.) means 'apt and suitable to the end in view'; 'practical and efficient'; 'politic'; 'profitable'; 'advisable', 'fit, proper and suitable to the circumstances of the case'. In another shade, it means a device 'characterised by mere utility rather than principle conductive to special advantage rather than to what is universally right' (see Webster's New International Dictionary). 10. It was then held that the court must construe the said word in keeping with the context and object of the provision in its widest amplitude. Here the word "expedient" is used in Section 4 of the PO Act in the context of casting a duty on the court to take into account "the circumstances of the case including the nature of the offence...". This means Section 4 can be resorted to when the court considers the circumstances of the case, particularly the nature of the offence, and the court forms its opinion that it is suitable and appropriate for accomplishing a specified object that the offender can be released on probation of good conduct." 17. This Court has also had an occasion to consider the nature of offence of adulteration of a food article, particularly milk, in Criminal Revision No. 1737 of 1998 (Ram Das Vs. State of U.P.) decided on 18.12.2015 and in para 27, 28 and 29 has said as under: "27. This is a serious matter. We cannot deal a case of adulteration of food articles in a casual fashion. The people who can dare to adulterate food articles must be dealt with very severely. 28. Adulteration in food article has a direct adverse consequence to the health of public. Many a times such adulteration with food causes such serious loss to the consumer, which is unrecoverable and create permanent disability or loss etc. We cannot presume that the milk sold by accused-revisionist would have been used by a healthy person and not a patient facing serious disease in the Hospital or otherwise. The adulterated item is bound to cause such loss as it could be and the consumer would suffer without having any knowledge therefor. The people who are indulged in adulteration are more dangerous and stark enemy of humanity than those who commit crime by killing a person straight. Here the hidden crime causes injury to a person who has no idea as to how he has suffered and that too in a defenceless situation. He would believe that food articles contain substance as naturally are supposed to be present there, but adulteration has changed its nature in a different and rather bad way. Consumer suffers in ignorance but with an obvious confidence that whatever he is intaking is alright. The adulterators, therefore, do commit a much heinous and serious crime to the Society as a whole and deserve no sympathy. 996 INDIAN LAW REPORTS ALLAHABAD SERIES 29. In fact, in our Country, we deal with adulteration with lot of sympathy which encourages continuous indulgence in such activities. The adulteration is not being treated with such seriousness as it ought to be. This treatment to adulteration is anti-human and anti-society. The act of adulteration need be viewed with absolute strictness and stringent measures must be taken to prevent it, else Society in general would continue to suffer in the hands of adulterators, who are minting money playing with health of public at large without taking care whether suffering consumer would be an innocent child, a pregnant lady, a patient in Hospital struggling for life or any such other needy person." 18. Counsel for revisionist also relied on Section 360 Cr.P.C. contending that the same ought to have been considered by Court but I find that Apex Court in Daljit Singh and others Vs. State of Punjab though Secretary Home Affairs JT 2006 (7) SC 98 has clearly said that Section 360 would not be applicable to areas where provisions of Act, 1958 have been made applicable. Para 7 and 8 of judgment read as under: "7. Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of seven years or less, to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of Section 4 of the Probation Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any role for Probation Officers in assisting the Courts in relation to supervision and other matters while Probation Act does make such a provision. While Section 12 of the Probation Act states that the person found guilty of an offence and dealt with under Section 3 or 4 of the Probation Act shall not suffer disqualification, if any, attached to conviction of an offence under any law, the Code does not contain parallel provision. Two statutes with such significant differences could not be intended to co-exist at the same time in the same area. Such co-existence would lead to anomalous results. The intention to retain the provisions of Section 360 of the Code and the provisions of the Probation Act as applicable at the same time in a given area cannot be gathered from the provisions of Section 360 or any other provision of the Code. Therefore, by virtue of Section 8(1) of the General Clauses Act, where the provisions of the Act have been brought into force, the provisions of Section 360 of the Code are wholly inapplicable. 8. Enforcement of Probation Act in some particular area excludes the applicability of the provisions of Section 360 and 361 of the Code in that area." 19. The aforesaid judgment also does not help the applicant-revisionist in any manner. Reference to Section 360 in the case in hand is clearly misconceived. 20. No other point is argued. 21. Therefore, on merits also I do not find any justification warranting interference in this Revision. 4 All. Shreyas Gramin Bank & Anr. Vs Smt. Kasturi Devi 997 22. The Restoration Application is dismissed being not maintainable as also on merits. --------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 29.02.2016 BEFORE THE HON'BLE V.K. SHUKLA, J. THE HON'BLE MAHESH CHANDRA TRIPATHI, J. Special Appeal No.- 1829 Of 2010 Shreyas Gramin Bank & Anr. ...Appellants Versus Smt. Kasturi Devi ...Respondent Counsel for the Appellants: Yashwant Varma Counsel for the Respondent: Bharat Pratap Singh, Amrish Sahai Service Law - Compassionate Appointment - Regional Rural Banks - Scheme applicable - Date of consideration - No vested right - Model Scheme for Payment of Ex-gratia (Lump Sum Amount) in lieu of Compassionate Appointment - Clause 13 - Pending applications - Applicability of new scheme - Effect of abolition of compassionate appointment - Judicial interference. Compassionate Appointment - Husband of the respondent, a Class-IV employee of the appellant-bank (Regional Rural Bank), died in harness on 27.09.2005. Respondent applied for compassionate appointment on 08.10.2005. During pendency of the application, the bank adopted the Model Scheme of the Indian Banks Association providing for payment of ex-gratia lump sum amount in lieu of compassionate appointment, which was approved by the Board on 27.10.2006. The respondent's claim was rejected under the new Scheme. Learned Single Judge allowed the writ petition holding that the respondent was entitled to consideration under the scheme existing on the date of death/application. Clause 13 - Held that compassionate appointment is not a vested or indefeasible right and can be claimed only in accordance with the scheme or rules in force on the date of consideration of the application. Clause 13 of the Model Scheme clearly provides that all applications pending as on the effective date shall be governed by the new Scheme. In absence of any challenge to Clause 13, the respondent could not insist upon consideration under the old scheme. No vested right - Held further that the mere submission of an application does not create a vested right. The bank was justified in applying the new Scheme providing for ex-gratia payment in lieu of compassionate appointment. The reliance placed on State Bank of India v. Jaspal Kaur was misplaced in the facts of the case. The judgment of the learned Single Judge directing reconsideration under the old scheme was unsustainable.