# Billu @ Anandi & Anr. Revisionists v. State of U.P. & Anr - **Citation:** (2022) 2 ILRA 153 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2022-02-04 - **Case number:** Criminal Revision No. 355 of 2022 - **Bench:** Anil Kumar Ojha - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/billu-anandi-anr-revisionists-v-state-of-u-p-anr-48097 - **Pages:** 3 ## Headnote Law- Code of Criminal Procedure, 1973- Section 374(2)- Appellate Court dismissed the appeal on the ground of not pressed by counsel for appellants and affirmed the conviction- Even when the appeal was not pressed on merits and only pressed only on the point of sentence, appellate court has to see whether the conviction was proper- Criminal Appeal cannot be dismissed on the ground of not pressed. Settled law that it is incumbent upon the appellate court to consider the appeal on merits to see if the conviction is justified, legal and proper and the same cannot be dismissed even if not pressed by the counsel for the appellant. ( Para 9) Criminal Revision allowed. (E-3) Judgements/ Case law relied upon:- ## Text 2 All. Billu @ Anandi & Anr. Vs. State of U.P. & Anr. 153 16. Arnesh Kumar Vs. State of Bihar, (2014) 8 SCC 273 (Supra) is a land mark judgment which has to be followed by police authorities along with the order passed in Writ Petition (Civil) No. 73 of 2015 Social Action Forum for Manav Adhikar and another Vs. Union of India, Ministry of law and Justice and others (Supra) 17. In that view of the matter, this writ petition is partly allowed. ---------- (2022)02ILR A153 REVISIONAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 04.02.2022 BEFORE THE HON'BLE ANIL KUMAR OJHA, J. Criminal Revision No. 355 of 2022 Billu @ Anandi & Anr. ...Revisionists Versus State of U.P. & Anr. ...Opposite Parties Counsel for the Revisionists: Sri Mohammad Khalid, Sri Pawan Kumar Yadav Counsel for the Opposite Parties: A.G.A. (A) Criminal Law- Code of Criminal Procedure, 1973- Section 374(2)- Appellate Court dismissed the appeal on the ground of not pressed by counsel for appellants and affirmed the conviction- Even when the appeal was not pressed on merits and only pressed only on the point of sentence, appellate court has to see whether the conviction was proper- Criminal Appeal cannot be dismissed on the ground of not pressed. Settled law that it is incumbent upon the appellate court to consider the appeal on merits to see if the conviction is justified, legal and proper and the same cannot be dismissed even if not pressed by the counsel for the appellant. ( Para 9) Criminal Revision allowed. (E-3) Judgements/ Case law relied upon:- 1. St. of Har. Vs Janak Singh, (2013) 9 SCC 431 2. Crl. Apl. No. 1385-1386 of 2021, Gurjant Singh Vs The St. of Punj. (Delivered by Hon'ble Anil Kumar Ojha, J.) 1. Heard learned counsel for the revisionists, learned A.G.A. for the State by means of Video Conferencing and perused the record. 2. Challenge in this Revision is the judgement and order dated 3.11.2021 passed by Additional Sessions Judge (Rape Cases & POCSO Act) Sambhal at Chandausi in Appeal No. 20 of 2020 under Section 101 of Juvenile Justice (Care and Protection of Children) Act wrongly filed under Section 374 (2) Cr.P.C. (Billu @ Anandi and Another Vs. State of U.P. and Another) whereby learned Appellate Court dismissed the appeal on the ground of not pressed by counsel for appellants and affirmed the conviction order dated 21.12.2020 passed by Juvenile Justice Board, District Sambhal in Case Crime No. 536 of 2005 under Sections 376, 506 I.P.C., P.S. Rajpura, District Sambhal convicting and sentencing the appellants under Section 376 I.P.C. for a period of three years each and under Section 506 I.P.C. convicted the appellants for two years each. Further directed that both the sentences shall run concurrently. 3. Learned counsel for the Revisionists raised only one point that order dated 3.11.2021 is illegal as the 154 INDIAN LAW REPORTS ALLAHABAD SERIES appeal has been dismissed on the ground of not pressed by the counsel for the Revisionists. 4. I agree with the aforesaid contention of learned counsel for the Revisionists. 5. Relevant portion of the order dated 3.11.2021 is quoted below:- आदेश "यह आपिालिक अपील प्रािी/अपीलािी आनींदी उिट लबल्लू वा शीशपाल की ओि से िािा-373, 504 भoदनoसन0 िाना िजपुिा लजला सींभल के सींबींि में प्रस्तुत की गई है, जो माननीय सत्र न्यायािीश महोदय से हो गया है। प्रािी/अपीलािीगण के लवद्वान अलिवक्ता द्वािा अपील पि बल न देने का पृष्ाींकन लकया गया है। अत: लिलमनल बल ने देने के कािण लनिस्त होने योग्य है। अत: प्रािी/अपीलालिटगन की अपील बल ना देने के कािण लनिस्त की जालत है। पत्रावली लनयमानुसाि दस्खल दफ्ताि हो. लदनाींक: 03.11.2021" 6. In State of Haryana v. Janak Singh, (2013) 9 SCC 431, Hon'ble Apex Court has held that where Criminal Appeal preferred by the convict of offence under Section 376 I.P.C. was not pressed by the counsel for the appellant as regards the judgement of conviction and had pressed only on the point of sentence and the appellate court/High Court then reduced the sentence already undergone by the convict in jail. It has been further held by the Hon'ble Supreme Court that even when the appeal was not pressed on merits and only pressed only on the point of sentence, appellate court has to see under Section 376 I.P.C. whether the conviction was proper. 7. For the ready reference, relevant part of the afore-cited judgement of the Apex Court is quoted below: "12. We notice that before the High Court the learned counsel for the respondents did not challenge the conviction. At the same time, he stated that the circumstances of the case and medical evidence indicated that this could be a case where the prosecutrix had gone with respondent Joginder Singh of her own will. Therefore, it is not clear whether the respondents had really instructed their counsel not to press the appeal on merits or whether the counsel on his own thought that getting the respondents released on sentence already undergone by them was an easy way out and, therefore, he preferred that option. We feel that the appeals were heard in a slipshod manner. It was open for the respondents to press the appeals on merits and pray for acquittal. Had the case been argued on merits, the High Court could have acquitted the respondents if it felt that the prosecution had not proved its case beyond reasonable doubt. Assuming the respondents did not press the appeals, the High Court had to still consider whether the concession made by the counsel was proper because it is the duty of the court to see whether conviction is legal. But, once the respondents stated that they did not want to press the appeals and the High Court was convinced that conviction must follow, then, ordinarily it could not have reduced the sentence to the sentence already undergone by the respondents which is below the minimum prescribed by law. The High Court could have done so only if it felt that there were 2 All. Rakesh Kumar Pandey & Anr. Vs. State of U.P. & Anr. 155 extenuating circumstances by giving reasons therefor. While reducing the sentence, the High Court has merely stated that it was "just and expedient" to do so. These are not the reasons contemplated by the proviso to Section 376(1) IPC. Reasons must contain extenuating circumstances which prompted the High Court to reduce the sentence below the prescribed minimum. Sentence bargaining is impermissible in a serious offence like rape. Besides, at the cost of repetition, it must be stated that such a course would be against the mandate of Section 376(1) IPC. 13. In view of the above discussion, we hold that the impugned judgment [Janak Singh v. State of Haryana, Criminal Appeal No. 648-SB of 2000, decided on 2-8-2010 (P&H)] is legally unsustainable and is liable to be set aside and the matter deserves to be remanded to the High Court for fresh disposal of the appeals filed by the respondents." 8. Recently in Criminal Appeal No. 1385-1386 of 2021, Gurjant Singh Vs. The State of Punjab, Hon'ble Apex Court has again reiterated the aforesaid principle. 9. Accordingly it is held that Criminal Appeal cannot be dismissed on the ground of not pressed. 10. In view of the above law of Hon'ble Apex Court in State of Haryana v. Janak Singh (Supra), order passed by Additional Sessions Judge (Rape Cases & POCSO Act) Sambhal at Chandausi dated 03.11.2021 dismissing the appeal on the ground of not pressed by the learned counsel for the appellants deserves to be set-aside and Revision deserves to be allowed. 11. Accordingly, Revision is allowed. Impugned order dated 03.11.2021 passed by Additional Sessions Judge (Rape Cases & POCSO Act) Sambhal at Chandausi is set-aside. 12. Matter is remitted to Additional Sessions Judge (Rape Cases & POCSO Act) Sambhal at Chandausi to dispose of the matter in accordance with provisions of law after providing adequate opportunity of hearing to the parties. 13. It is also directed that Additional Sessions Judge (Rape Cases & POCSO Act) Sambhal at Chandausi shall dispose of the appeal within a period of three months from the date of receipt of certified copy of this order as revisionist is already in jail and matter relates to Section 376 I.P.C. ---------- (2022)02ILR A155 REVISIONAL JURISDICTION CRIMINAL SIDE DATED: LUCKNOW 15.02.2022 BEFORE THE HON'BLE MRS. SANGEETA CHANDRA, J. Criminal Revision No. 1116 of 2019 Rakesh Kumar Pandey & Anr. ...Revisionists Versus State of U.P. & Anr. ...Opposite Parties Counsel for the Revisionists: Arun Sinha, Siddhartha Sinha Counsel for the Opposite Parties: Govt. Advocate, Anil Kumar Sharma, Purnendu Chakravarty (A) Criminal Law- Code of Criminal Procedure, 1973- Section 397/401- Section 227, 228 - Framing of Charge - The revisional jurisdiction, particularly while dealing with framing of charge, has to be even more limited. Framing of a