# Devendra Kumar Jain v. State of U.P. and Ors

- **Citation:** (2014) 1 ILRA 312
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-03-27
- **Case number:** Criminal Revision No. 2152 of 2007
- **Bench:** Karuna Nand Bajpayee
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/devendra-kumar-jain-v-state-of-u-p-and-ors-42788
- **Pages:** 6

## Headnote

Cr.P.C.
Section-401-Criminal
Revisionagainst
acquittal-offence
under
section
395/397/307/149/198 IPC-if two views
possible-which goes in favor of accused
should be preferred-no material available on
record by which approach of lower court can
be either cursory or resulting miscarriage of
justice-order impugned does not suffer from
any infirmity-warrant interference by this
court-revision dismissed on merit as well as
on ground of maintainability.

Held: Para-16
The impugned order of the trial court
does not seem to suffer from any such
infirmity and impropriety or illegality or
with any of those judicially recognized
vices referred to above, which may
persuade the Court to interfere and set
aside the judgment.

Case Law discussed:
AIR 1934 PC 227; AIR 2010 (SCW) 6704; 2012
(9) JT 252

## Text

312 INDIAN LAW REPORTS ALLAHABAD SERIES
Article 323-A and Article 323-B of the
Constitution are possessed of the competence
to test the constitutional validity of statutory
provisions and rules. All decisions of these
Tribunals will, however, be subject to scrutiny
before a Division Bench of the High Court
within whose jurisdiction the Tribunal
concerned
falls.
The
Tribunal
will,
nevertheless, continue to act like courts of first
instance in respect of the areas of law for
which they have been constituted. It will not,
therefore, be open for litigants to directly
approach the High Courts even in cases where
they question the vires of statutory legislations
(except where the legislation which creates the
particular
Tribunal
is
challenged)
by
overlooking the jurisdiction of the Tribunal
concerned."
(emphasis supplied)

6. Similar view was taken by the
supreme court in the case of Kendriya
Vidyalaya Sangathan and others vs. Dr.
R.D. Vishwakarma and others (AIR 2002
SC 1295). It was observed as under :-

"At the same time, as laid down in
Chandra Kumar, the High Court ought not
to permit the aggrieved person to bypass
the remedy of moving the Administrative
Tribunal in the first instance."

7. I am of the opinion that in cases
of Armed Forces Tribunal constituted
under the Act, the same analogy will
apply.

8. The question which now arises is
whether writ should be entertained
because the petitioner alleges violation of
constitutional rights. Controversy in this
regard is also no more res-integra, in view
of the authortative pronouncement of the
apex court in the same case of L. Chandra
Kumar vs. Union of India (supra),
wherein, it was held that the tribunal also
has the power to go into issues regarding
infraction of constitutional rights. It was
held as under:-

.............."It
has
been
contended
before us that the Tribunal should not be
allowed to adjudicate upon matters where
the vires of legislations is questioned, and
that they should restrict themselves to
handling matters where constitutional
issues are not raised. We cannot bring
ourselves to agree to this proposition as
that may result in splitting up proceedings
and may cause avoidable delay. If such a
view were to be adopted, it would be open
for litigants to raise constitutional issues,
many of which may be quite frivolous, to
directly approach the High Courts and
thus subvert the jurisdiction of the
Tribunals. Moreover, even in these
special branches of law, some areas do
involve the consideration of constitutional
questions on a regular basis; for instance,
in service law matters, a large majority of
cases involve an interpretation of Articles
14, 15 and 16 of the Constitution. To hold
that the Tribunals have no power to
handle matters involving constitutional
issues would not serve the purpose for
which they were constituted."
(emphasis supplied)

9. In view of the above, I am of the
opinion that the petitioner has the remedy
of
approaching
the
Armed
Forces
Tribunal, in the first instance. Therefore,
the writ petition is dismissed, leaving it
open to the petitioner to avail the said
remedy.
--------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.03.2014

BEFORE
1 All] Devendra Kumar Jain Vs. State of U.P. and Ors.
313
THE HON'BLE KARUNA NAND BAJPAYEE, J.

Criminal Revision No. 2152 of 2007

Devendra Kumar Jain..... Petitioner
Versus
State of U.P. and Ors...... Respondents

Counsel for the Petitioner:
Sri Satya Narayan Gupta

Counsel for the Respondents:
A.G.A., Sri A.N. Mishra, Sri Neeraj Mishra

Cr.P.C.
Section-401-Criminal
Revisionagainst
acquittal-offence
under
section
395/397/307/149/198 IPC-if two views
possible-which goes in favor of accused
should be preferred-no material available on
record by which approach of lower court can
be either cursory or resulting miscarriage of
justice-order impugned does not suffer from
any infirmity-warrant interference by this
court-revision dismissed on merit as well as
on ground of maintainability.

Held: Para-16
The impugned order of the trial court
does not seem to suffer from any such
infirmity and impropriety or illegality or
with any of those judicially recognized
vices referred to above, which may
persuade the Court to interfere and set
aside the judgment.

Case Law discussed:
AIR 1934 PC 227; AIR 2010 (SCW) 6704; 2012
(9) JT 252

(Delivered by Hon'ble Karuna Nand
Bajpayee, J.)

1. The list has been revised, but
none appears to press the revision on
behalf of revisionist.

2. This is an old revision of 2007.
The dockets of pending cases are already
huge and the matter cannot be allowed to
linger on for indefinite period of time.

3. Shri A. N. Mishra, counsel for the
opposite parties is present in the Court. In
the aforesaid circumstances, this Court,
therefore, proposed to proceed with the
hearing of the case with the assistance of
learned A.G.A. and also on the basis of
the record of the case.

4. This is a criminal revision filed
against
judgment
and
order
dated
28.6.2007, passed by Additional Sessions
Judge/Special
Judge(D.A.A.
Act),
Lalitpur, in Special Session Trial No.20 of
2005, State Vs. Mulu & others, whereby
the three accused respondents have been
acquitted
under
various
charges
of
Sections 395/397, 307/149, 148 I.P.C., for
which they were arraigned.

5. Shorn of unnecessary details the
prosecution story may be described in
brief to the effect that on 21.5.2010, while
the complainant, Devendra Kumar Jain
was going on his Jeep along with Kailash,
Karan and Surendra Kumar at about 8:00
p.m., when he reached at the place of
occurrence, two motorcycles overtook the
Jeep and intercepted them. Thereafter,
accused Mulu, Prabhu, Feran along with
two unknown assailants alighted from the
motorcycles and after hurling threats,
made
criminal
assault
on
the
complainant's side. Accused Feran fired
from the country made pistol and then the
complainant was dragged out from the
Jeep and was badly beaten. Accused
Prabhu also fired from the country made
pistol which he was wielding at the time
of incident. It is admitted that the fires
made at complainant missed the target
and he had a skin escape and remained
uninjured, as a result to the fires made at
him. It was also alleged that Rs.2,000/-
were also snatched away from the
complainant which he was carrying in his
314 INDIAN LAW REPORTS ALLAHABAD SERIES
pocket. After committing the aforesaid
incident, the accused took to their heels and
made their escape good. According to the
complainant's version he tried to get the
F.I.R. registered against the accused, but his
effort did not succeed and he had ultimately
to bring the present complaint in question in
the court against the accused. The accused
were summoned under the aforesaid charges
and after the observance of the regular
procedure of the trial the prosecution
evidence was adduced. There were chiefly
four witnesses produced by the complainant.
P.W.1 was Devendra Kumar Jain, the
complainant himself, P.W.2 was Kailash,
P.W.3 was Karan, while P.W.4 was doctor,
who is said to have examined the
complainant. The version of the incident
which has been referred above was
substantially the same which was given by
witnesses, but P.W.2, Kailash turned hostile
and contradicted the version on very factual
aspect of the case. P.W.4, who medically
examined the complainant, found some
minor and simple injuries on his person.

6. During the course of argument
raised on behalf of the respondentaccused, a preliminary objection was
raised at the very outset of the hearing
about the maintainability of the revision.
According
to
the
counsel,
as
the
prosecution emanated on the basis of a
complaint, and, therefore, the legally
provided remedy for the complainant was
to file an appeal under Section 378(4) of
the Code of Criminal Procedure, and that
too after obtaining special leave to appeal
from the order of acquittal. The counsel
has also drawn the attention of the Court
to Section 378(5) of Cr.P.C., which
provides for a limitation of sixty days,
within which the special leave to appeal
has to be sought. According to the
counsel, if an appeal is provided to be
filed by a particular party against the
particular order any other remedy in the
form of filing revision shall be simply not
maintainable in the law. The contention is
that on this very ground the revision
should be dismissed summarily and
simply may not be entertained.

7. I find force to the submission
made on behalf of the respondents. It may
be relevant and apt to extract the relevant
provision of the Code which are as
follows :-

"378. Appeal in case of acquittal.-(1)
..........

(2) ................

(3) ...............

(4) If such an order of acquittal is
passed in any case instituted upon
complainant and the High Court, on an
application made to it by the complainant
in this behalf, grants special leave to
appeal from the order of acquittal, the
complainant may present such an appeal
to the High Court.

(5) No application under sub-section
(4) for the grant of special leave to appeal
from an order of acquittal shall be
entertained by the High Court after the
expiry
of
six
months,
where
the
complainant is a public servant, and sixty
days in every other case, computed from
the date of that order of acquittal.

(6) If, in any case, the application
under sub-section (4) for the grant of
special leave to appeal from an order of
acquittal is refused, no appeal from that
order of acquittal shall lie under subsection (1) or under sub-section (2)."

8. Even, if we cast a fleeting glance
on the aforesaid provision it leaves no
doubt to see that the impermissible course
has been adopted by the complainant, and
1 All] Devendra Kumar Jain Vs. State of U.P. and Ors.
315
this Court cannot either ignore or override
the statutory law prevalent. In fact, the
provision under Section 401(4) of Cr.P.C.
is also relevant in this regard to be kept in
mind and the same reads as follows :-

"401.
High
Court's
powers
of
revision.-(1) ......

(2) ..............

(3) ...............

(4) Where under this Code an appeal
lies and no appeal is brought, no
proceeding by way of revision shall be
entertained at the instance of the party
who could have appealed."

9. This is true that if the High Court is
satisfied that the revision has been brought
under the erroneous belief that no appeal
lies thereto and the call of substantive
justice requires to still look into the same
and entertain it, this Court, in its wisdom,
may treat the application of revision as a
petition of appeal and deal with the same as
such, accordingly. There is absolutely
nothing on record to indicate any such
erroneous belief. No material, whatsoever,
either, in the form of affidavit or by any
other way has been brought on record to
indicate any such circumstance, which may
persuade the Court to take a liberal view of
the matter. But, still, as this Court has
proceeded to decide this revision in the
absence of revisionist's counsel, this Court
proposes to apply all the standards and
settled principles which are conventionally
applied to the appreciation of evidence
while the Court sits to exercise its
jurisdiction in appeal. Such a course is
being adopted to avert the faintest chance of
any miscarriage of justice.

10. First of all, it may be apt to recall
the broader principles. In the hearing of
appeal against the order of acquittal, the law
is trite and too well settled. There is a marked
difference between the approach to be
adopted while sitting to hear the appeal
against conviction and the approach which is
adopted while the Court sits to hear an appeal
against acquittal. There is a general golden
rule of criminal jurisprudence which runs as
a thread underlining the criminal law that
accused is to be presumed innocent unless he
is proved guilty. This presumption of
innocence does not forsake the accused after
he obtains the verdict of acquittal in his
favour. In fact, the presumption gets fortified.
It may be apt to quote the famous words of
the Privy Council used in the case of Sheo
Swaroop Vs. King Emperor, AIR 1934 PC
227, which run as under :-

"The High Court should and will aways
give proper weight and consideration to such
matters as (1) the views of the trial Judge as
to the credibility of the witnesses, (2) the
presumption of innocence in favour of the
accused,
a
presumption
certainty
not
weakened by the fact that he has been
acquitted at his trial, (3) the right of the
accused to the benefit of any doubt, and (4)
the slowness of an appellate court in
disturbing a finding of fact arrived at by a
Judge who had the advantage of seeing the
witnesses."

11. This view of law adopted by the
Privy Council has formed the chief plank
on the basis of which most of law in the
following decades was laid down. The
Supreme Court decisions on this point
regarding the scope of interference in the
verdicts
of
acquittals,
have
further
supplemented the aforesaid view of the
Privy Council.

12. In the case of Brahm Swaroop
Vs. State, AIR 2010 (SCW) 6704 also, the
same view was reiterated. The substance
316 INDIAN LAW REPORTS ALLAHABAD SERIES
of what was held in the case may be
summarized as follows :-

"It is well established in law that the
appellate court should not ordinarily set aside
a judgement of acquittal in a case where two
views are possible, though the view of the
appellate court may be more, the probable
one. While dealing with a judgment of
acquittal, the appellate court must consider
the entire evidence on record, so as to arrive
at a finding as to whether the views of the
trial court were perverse or otherwise
unsustainable. The appellate court is entitled
to consider whether in arriving at a finding of
fact, the trial court had failed to take into
consideration any admissible evidence and/or
had taken into consideration evidence
brought on record contrary to law. Similarly,
the incorrect placing of the burden of proof
may also be a subject matter of scrutiny by
the appellate court. The court of appeal may
not interfere where two views are possible
for the reason that in such a case it can be
held that prosecution failed to prove the case
beyond reasonable doubt and accused is
entitled for benefit of doubt."

13. In yet another case of Pudhu
Raja & Anr. Vs. State, 2012 (9) JT 252,
the Apex Court observed as further :-

"7. The law on the issue of
interference with an order of acquittal is
to the effect that only in exceptional cases
where there are compelling circumstances
and the judgement in appeal is found to be
perverse, the appellate court can interfere
with the order of the acquittal. The
appellate court should bear in mind the
presumption of innocence of the accused
and further that the trial court's acquittal
bolsters the presumption of innocence.
Interference in a routine manner where
the other view is possible should be
avoided, unless there are good reasons for
interference."

14. Thus, the presumption of
innocence is by no means weakened by the
verdict of acquittal given in favour of the
accused. Unless in higher Court's scrutiny it
is found that the judgment of acquittal suffers
either from a perversity of approach or the
findings arrived at by the trial court are
against the weight of evidence on record. It
has also to be seen whether there has been
left out any important admissible piece of
evidence from consideration or whether
some inadmissible piece of evidence has
wrongly been considered by the court below.
Failure to consider the some important
admissible piece of evidence as well as the
error of having considered an inadmissible
piece of evidence, both may adversely affect
the correctness of the judgment arrived at by
the trial court. There may be some other
circumstances also where the higher Court
may find after weighting the evidence on
record that an approach of the Court has been
either cursory or was so lackadaisical that it
has resulted in the miscarriage of justice. In
all the aforesaid circumstances this Court
does not desist to interfere or to upset the
judgment, but otherwise, this Court is always
slow to replace the judgment of the lower
court, even in the event where it feels
inclined to take a different view of the
matter. Sometimes it may so happen that the
higher Court may feel that another view was
also possible and the accused instead of
having been acquitted, could also have been
convicted. But, this finding does not rule out
the view that has been taken by the trial court
in the case that an accused could also have
been acquitted. In other words, it may be said
that if two views, one in favour of accused
and another against him, are possible, then
too, the one which favours the accused ought
to be adopted, because in the presence of this
1 All] A.K. Misra Vs. State of U.P.
317
possibility that the accused could also have
been judiciously evaluated as innocent, it
cannot be said that the guilt of the accused
has been proved beyond all possible
reasonable doubts. This is the hub and
substance of the law that has evolved during
the course of several decades and it does not
admit of any controversy.

15. When this Court appreciated and
evaluated the evidence as has been
discussed in the impugned order and is also
present before this Court in the form of
original record, it can be said that the
impugned order does not suffer from any of
such infirmities which may constitute a
valid ground to interfere in the matter. The
Court has validly taken into account the
improbability of the allegation that even on
the repeated fires having been made on the
complainant, he was still escaping in a
magical manner repeatedly and remained
uninjured, by the shots fired at him all
throughout. It has also been taken into
account as to how the complainant's side
has completely failed to give any details or
any
kind
of
discription
about
the
motorcycles used in the alleged crime. The
fact that the witnesses produced by the
complainant have a history of loyalty to him
and that they have been used as witnesses
even in other cases by the complainant, has
also been considered by the trial court. The
discrepancy in the version inter se between
the testimonies produced before the court
has also been adversely viewed by the
Court. In fact the entire prosecution version
given out by the complainant has been
found to be palpably improbable and also
reflecting the unnatural conduct of the
witnesses. The enormity of the assault made
on the complainant has also been found to
be not in consonance with the scars and
nominal injuries found on the person of the
complainant.

16. The impugned order of the trial
court does not seem to suffer from any
such
infirmity
and
impropriety
or
illegality or with any of those judicially
recognized vices referred to above, which
may persuade the Court to interfere and
set aside the judgment.

17. In the aforesaid view of the
matter, the revision stands, dismissed,
both on the ground of its maintainability
as well as on its merits.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.02.2014

BEFORE
THE HON'BLE SUNEET KUMAR, J.

Service Single No. 2233 of 1991

A.K. Misra..... Petitioner
Versus
State of U.P...... Respondent

Counsel for the Petitioner:
Sri S.D. Singh, Sri Alam Singh, Sri S.K.
Shukla

Counsel for the Respondents:
C.S.C.

U.P.Temporary
Government
Servant(termination of service)Rules 1975readwith U.P. Police Regulation-Regulation541-Termination
of
constable-on
involvement in criminal case-under section
392,
323,
506,
342
IPC-S.P.
passed
termination order considering conducts of
petitioner under Rule 1975-argument that
termination can be only under Regulation
541 and the provisions of Rule 75 not
available-held misconceived-in absence of
appointment letter-can not be treated
probationer-before passing impugned order
authority taken care of his conductacquittal
base
upon
compromise
is
immaterial-warrants no interference.