# Chhote Khan Revisionist v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 813
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-19
- **Bench:** Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chhote-khan-revisionist-v-state-of-u-p-ors-45701
- **Pages:** 4

## Headnote

Code,
1973-
Sections
397
&
401-
Revisional
jurisdiction - Interference with order of
acquittal - Extent of jurisdiction - It is a
supervisory
jurisdiction
which
is
exercised by the Court to correct the
manifest error/illegality resulting in gross
miscarriage
of
justice
-revisional
jurisdiction of the High Court cannot be
814 INDIAN LAW REPORTS ALLAHABAD SERIES
invoked merely because the lower Court
has taken a wrong view of law or misappreciated the evidence on record - High
Court is not required to act as a court of
appeal (Para 4 & 5)

Criminal Revision dismissed. (E-5)

List of cases cited: -

## Text

1 All. Chhote Khan Vs. State of U.P. & Ors.
813
given an application along with an
affidavit
before
the
Chief
Judicial
Magistrate, Allahabad and the Chief
Judicial Magistrate, Allahabad had sent the
same to the Investigating Officer for
undertaking further proceedings.

13. Today, learned A.G.A. has filed
counter affidavit and in paragraph 6 of the
same, it is stated that the then Investigating
Officer had tried to contact the said
witness but the witness Mohd. Asad did
not turn up for getting his statement
recorded but in this counter affidavit it is
nowhere mentioned as to what efforts were
made by the Investigating Officer to
procure the attendance of this witness.

14. It appears to me that the
Investigating Officer was required to take
notice of the affidavit of the witness
Mohd. Asad when it was referred by the
Chief
Judicial
Magistrate,
Allahabad
during the course of the investigation but
the Investigating Officer has not taken care
of the examination of the same. The trial
court while disposing of the application
(74 Ka) under Section 311 Cr.P.C. has not
recorded its categorical finding as to
whether the presence of the witness is
essential for the due disposal of the trial or
not. Merely giving the finding that the
prosecution is trying to fill up the lacuna,
does not absolve the trial court from its
responsibility as bestowed under Section
311 Cr.P.C.

15. In view of the above mentioned
reasons and circumstances, to my view the
trial court has not properly applied its
mind while deciding the application (74
Ka) under Section 311 Cr.P.C. in the light
of the pronouncements of the Hon'ble
Apex Court as mentioned herein above
and the peculiar facts of the present case.

16.

Accordingly,
the
criminal
revision is liable to be allowed, which is
hereby allowed.

17. Order dated 26.04.2018, passed
by the learned Sessions Judge, Rae Bareli
in S.T. No. 429 of 2015 (State Vs.
Shailendra Singh and another), on the
application (74 Ka) under Section 311
Cr.P.C. is set aside and the matter is
remanded back to the trial court for
disposing of the application under Section
411 Cr.P.C. afresh, in the light of the
finding of this Court, expeditiously,
preferably within a period of one month
from the date of production of certified
copy of this order.
----------
(2020)1ILR 813

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.12.2020

BEFORE
THE HON'BLE MANISH KUMAR, J.

Criminal Revision No. 673 OF 1999

Chhote Khan ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Jagdev Singh

Counsel for the Opposite Parties:
A.G.A

A.
Criminal
Procedure
Code,
1973-
Sections
397
&
401-
Revisional
jurisdiction - Interference with order of
acquittal - Extent of jurisdiction - It is a
supervisory
jurisdiction
which
is
exercised by the Court to correct the
manifest error/illegality resulting in gross
miscarriage
of
justice
-revisional
jurisdiction of the High Court cannot be
814 INDIAN LAW REPORTS ALLAHABAD SERIES
invoked merely because the lower Court
has taken a wrong view of law or misappreciated the evidence on record - High
Court is not required to act as a court of
appeal (Para 4 & 5)

Criminal Revision dismissed. (E-5)

List of cases cited: -

1. K. Chinnaswammy Reddy Vs St. of AP AIR
1962 SC 1788

2. Mahendra Pratap Singh Vs Sarju Singh AIR
1968 SC 707

3. Khetrabasi Samal Vs St. of Ori AIR 1970 SC 272

4. Satyendra Nath Dutta & anr Vs Ram Narain
AIR 1975 SC 580

5. Jagannath Choudhary & ors Vs Ramayan
Singh & ors 2002(5) SCC 659

6. Johar & ors Vs Mandal Prasad & anr, 2008
Cr.L.J. 1627 (SC)

7. Duli Chand Vs Delhi Administration 1975(4)
SCC 649

8. Pathuma & anr Vs Muhammad 1986(2) SCC
585, AIR 1986 SC 1436

9. Munna Devi Vs St. of Raj & anr 2001(9) SCC 631

10. Ram Briksh Singh & ors Vs Ambika Yadav &
anr 2004(7) SCC 665, AIR 2004 SC 4583

(Delivered by Hon'ble Manish Kumar, J.)

1. Learned counsel for the revisionist
Shri Jagdev Singh is present but no one
has appeared on behalf of the opposite
parties despite the fact that notice has been
personally served upon the opposite party
nos. 2 and 3.

2. After hearing counsel for the
revisionist, learned A.G.A. and having
gone thorough the lower Court's record
and the judgement dated 04.12.1998
passed by Additional Session Judge,
Moradabad in Sessions Trial No. 732/96
(State Vs. Ram Pal Singh and another)
acquitting the accused persons from the
charge under Section 302/201 of I.P.C.

3.

Learned
counsel
for
the
revisionist contented that Court below has
not properly appreciated the evidence. He
tried to take this Court to the judgement
of Court below and made his endeavour
to show that the view taken by Court
below in appreciating evidence is not
correct.

4. The judicial review in exercise of
revisional jurisdiction is not like an appeal.
It is a supervisory jurisdiction which is
exercised by the Court to correct the
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
jurisdiction has to be maintained.

5. 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.

6. The law has been settled in catena
of decisions wherein the dispute held that
there is a distinction between the appellate
jurisdiction and the revisional jurisdiction.
In the revisional jurisdiction the evidence
cannot be re-appreciated for looking the
1 All. Chhote Khan Vs. State of U.P. & Ors.
815
validity or legality of the order passed by
the Court below.

7. In K. Chinnaswammy Reddy Vs.
State of Andhra Pradesh, AIR 1962 SC
1978
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 reappreciation of evidence. While exercising
supervisory jurisdiction in revision the
Court would be justified in refusing to reappreciate
evidence
for
determining
whether the concurrent findings of fact
reached
by
learned
Magistrate
and
Sessions Judge was correct.

10. In Pathuma 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 causal 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 entirely do no
constitute the offence for which the
accused has been charged."

12. In Ram Briksh Singh and other
Vs. Ambika Yadav and another, 2004(7)
SCC 665, in a matter again arising from
the judgement of acquittal, the revisional
power of High Court was examined and
the Court said:

"Sections 397 to 401 of the Code
are ground 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
816 INDIAN LAW REPORTS ALLAHABAD SERIES
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 absence of anything to show as
to what evidence has not been examined or
the finding of fact recorded by Court
below is perverse or contrary to material
on record, no interference is called for.

14. In view of above, revision lacks
merit. Dismissed.

15. Certify this judgement to the
lower Court immediately.
----------
(2020)1ILR 816

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 14.01.2020

BEFORE
THE HON'BLE RAJEEV SINGH, J.

Criminal Revision No. 1393 OF 2019

Shadan Ansari ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Bipin Kumar Tiwari

Counsel for the Opposite Parties:
Government Advocate

A. Criminal Procedure Code, 1973 -
Section 303 & 304 - r/w General Rules
(Criminal), 1977 - Rule 37 - legal aid
provided by Amicus Curiae must be Real
& Effective & meaningful aid to an
accused - as accused also has the right to
fair trial

B. Constitution of India - Art. 21, 22(1),
39A - accused has fundamental right
under Article 22(1) to be defended by the
competent practitioner - Adequate legal
aid - if adequate legal aid has not been
provided to the accused during trial -
same is violative of Article 21.

Amicus Curiae provided by trial court, for
defending revisionist - Examination-in-chief of
P.W. 1 to P.W. 9 conducted before trial court -
Amicus
Curiae
did
not
cross
examine
prosecution witnesses - application u/s 311
Cr.P.C moved by revisionist for recall of the
witnesses to cross-examine prosecution witness
- rejected by the court below - Held - legal aid
provided by Amicus Curiae was not real and
effective - as he denied to cross-examine the
prosecution witnesses - Trial court directed to
recall all the prosecution witnesses & provide
opportunity to the revisionist to cross-examine
them.

Criminal Revision allowed. (E-5)

List of cases cited: -

1. Mohd. Hussain & Julfikar Ali Vs The State
(Govt. of NCT) Delhi 2012 (9) SCC 408

2. Manglu Vs St. of UP 2018 SCC OnLine All
5751

3. Anokhilal Vs St. of MP 2019 SCC OnLine SC
1637

(Delivered by Hon'ble Rajeev Singh, J.)

1. Heard learned counsel for the
revisionist and Shri Aniruddh Kumar
Singh, learned A.G.A.

2. This revision has been filed for
quashing of the order dated 21.09.2019
passed
by
Additional
Sessions
Judge/Special
Judge
(POCSO
Act),
Faizabad in Special Session Trial No. 78
of 2018, arising out of F.I.R. No. 76 of
2018, under Sections 376, 506, 377 I.P.C.
and Section 3/4 POCSO Act, P.S. Cantt.,
District Faizabad.

3. Learned counsel for the revisionist
submitted that after investigation, charge
sheet was filed by the Investigating Officer