# Dr. Arun Kumar Singhal Revisionist v. Smt. Tarawati

- **Citation:** (2023) 5 ILRA 604
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-28
- **Case number:** Criminal Revision No. 968 of 2015
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-arun-kumar-singhal-revisionist-v-smt-tarawati-50251
- **Pages:** 7

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Section397 - Calling for
records to exercise powers of revision -
Revisional jurisdiction - Opposite party,
widow filed application u/s 125 Cr.P.C. on
18.01.2011 against present revisionist -
Opposite party married with revisionist on
17.07.2007
-
Revisionist
contention
-
Opposite party had given 29.06.2006 as
wrong date of death of husband - In Parivar
Register, 29.09.2009 was mentioned -
Marriage with revisionist would be ab-initio
void, not maintainable - Due to inadvertence
of
counsel
for
revisionist,
the
death
certificate could not be produced before trial
court, hampered the case
- Claimed,
additional evidence in revision can be taken
- Held, power envisaged u/s 399 (1) Cr.P.C.
is analogous to provision of section 401 (1)
Cr.P.C., therefore, the trial court can take
additional evidence for examining regularity
of any proceedings, propriety of findings,
etc,
passed
by
subordinate
courts
-
Impugned
order
set
aside
-
Matter
transmitted back to court concerned for
passing fresh order. (Para 6, 7, 9, 10, 21,
23)

Criminal Revision allowed. (E-13)

List of Cases cited:

## Text

604 INDIAN LAW REPORTS ALLAHABAD SERIES
investigation under sub-section (3) of
Section 156 and require the police to make
a further report. The report may on the
other hand state that, in the opinion of the
police, no offence appears to have been
committed and where such a report has
been made, the Magistrate again has an
option to adopt one of three courses: (1) he
may accept the report and drop the
proceeding or (2) he may disagree with the
report and taking the view that there is
sufficient ground for proceeding further,
take cognizance of the offence and issue
process or (3) he may direct further
investigation to be made by the police
under sub-section (3) of Section 156.

16. There cannot be any quarrel with
the aforesaid authoritative exposition of
law by Hon'ble Supreme Court in Prasad
Shrikanht Purohit (supra) and Bhagwant
Singh (supra), however, in the humble
opinion of this Court the same are
distinguishable on facts of this case.

17. In view of the aforesaid
discussion, this Court is of the considered
opinion that there is no illegality or
irregularity in the impugned order dated
24.02.2023 warranting interference by this
Court. The instant criminal revision lacks
merit and the same deserves to be
dismissed.

18. Accordingly, the instant criminal
revision is dismissed.
----------

(2023) 5 ILRA 604
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 28.04.2023

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.
Criminal Revision No. 968 of 2015

Dr. Arun Kumar Singhal ...Revisionist
Versus
Smt. Tarawati ...Opposite Party

Counsel for the Revisionist:
Sanjay Kumar Srivastava

Counsel for the Opposite Party:
Sanjay Kumar Yadav, Shashi Kant Tripathi

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section397 - Calling for
records to exercise powers of revision -
Revisional jurisdiction - Opposite party,
widow filed application u/s 125 Cr.P.C. on
18.01.2011 against present revisionist -
Opposite party married with revisionist on
17.07.2007
-
Revisionist
contention
-
Opposite party had given 29.06.2006 as
wrong date of death of husband - In Parivar
Register, 29.09.2009 was mentioned -
Marriage with revisionist would be ab-initio
void, not maintainable - Due to inadvertence
of
counsel
for
revisionist,
the
death
certificate could not be produced before trial
court, hampered the case
- Claimed,
additional evidence in revision can be taken
- Held, power envisaged u/s 399 (1) Cr.P.C.
is analogous to provision of section 401 (1)
Cr.P.C., therefore, the trial court can take
additional evidence for examining regularity
of any proceedings, propriety of findings,
etc,
passed
by
subordinate
courts
-
Impugned
order
set
aside
-
Matter
transmitted back to court concerned for
passing fresh order. (Para 6, 7, 9, 10, 21,
23)

Criminal Revision allowed. (E-13)

List of Cases cited:

1.
Vinod
Kumar
Vs
Mohrawati,
MANU/UP/0308/1990, (Para 4)

2. MANU/UP/3033/2014, (Para 6, 7)

(Delivered by Hon'ble Shree Prakash
Singh, J.)
5 All. Dr. Arun Kumar Singhal Vs. Smt. Tarawati
605

1. On 04.04.2023, this Court observed
that if, the counsel for the opposite party
will not remain present on the next date, the
Court will proceed in absence of the
opposite party.

2. Case called out. None present on
behalf of the opposite party.

3. This Court is proceeding to hear the
matter in the aforesaid circumstances.

4.

Heard
Sri
Sanjay
Kumar
Srivastava,
learned
counsel
for
the
revisionist, Sri Anirudh Kumar Singh,
learned A.G.A. for the State and perused
the material placed on record.

5. By means of the instant revision,
the prayer has been made to allow the
revision with cost after summoning the
lower court record and set aside the
impugned judgment and order dated
26.09.2015 passed by the trial court i.e.
Principal Judge, Family Court, Ambedkar
Nagar in Case no. 272 of 2013 Smt
Tarawati Vs Dr Arun Kumar Singhal.

6. Learned counsel appearing for the
revisionist submits that the opposite party
filed an application under section 125 of
Cr.P.C.
on
18.01.2011,
against
the
revisionist before the Judicial Magistrate,
Ambedkar Nagar while alleging herself to
be the widow of late Parshuram son of Ram
Naresh, resident of Village Bela Persa, PS-
Baskhari,
Pargana
Birhal,
DistrictAmbedkar Nagar and also having a son
with the wedlock of her and late
Parshuram. He submits that the opposite
party has shown herself to be married with
the present revisionist on 17.07.2007, at her
village Baskhari and this fact is also
evident from the statement of the opposite
party including the cross examination that
she allegedly performed marriage with the
present revisionist on 17.07.2007.

7. He added that the date of death of
the husband of opposite party has been
shown as on 29.09.2006, which is the
wrong date given by the opposite party as,
the actual date of death of late Parshuram is
29.09.2009 which transpires from Parivar
Register which is annexed as Annexure No.
1 with the supplementary affidavit dated
04.04.2023.

8. Further submission is that since the
date of death of the husband of opposite
party is 29.09.2009, therefore, the marriage
with the present revisionist would be ab-
initio void and if, once it becomes void, the
application under section 125 is not
maintainable on behest of the opposite
party. He added that the additional
evidence has been supplied through the
supplementary affidavit before this Court
wherein the copy of the death certificate
has also been appended. He submits that
taking the additional evidence, either this
Court decide the matter or the same may be
remitted back to the trial court to decide a
fresh.

9. Adding his arguments he submits
that in fact due to recklessness on the part
of the counsel for the revisionist, the death
certificate could not be produced before the
trial court whereas, the same was in
existence and non- submissions of the
death certificate has hampered the fate of
the case and the revisionist has been put
into trouble.

10. Further submitted that the
additional evidence in revision can very
well be taken if the court is of the
satisfaction that the same can change the
nature of the order. In support of his
606 INDIAN LAW REPORTS ALLAHABAD SERIES
contention, he has placed reliance on the
provision of section 401(1) of Cr.P.C.

11. Section 401(1) of Cr.P.C. is
quoted here in under:-

(1) In the case of any proceeding
the record of which has been called for by
itself or Which otherwise comes to its
knowledge, the High Court may, in its
discretion, exercise any of the powers
conferred on a Court of Appeal by sections
386, 389, 390 and 391 or on a Court of
Session by section 307 and, when the
Judges composing the Court of revision are
equally divided in opinion, the case shall
be disposed of in the manner provided by
section 392.

12. Next submission is that likewise
powers under section 401 of Cr.P.C., the
analogous power has been given under
section 399 (1) of Cr.P.C. thus, the power
for taking additional evidence is also vest
with the trial court.

13. In support of his contention, he
has also placed reliance on a judgment
reported in MANU/UP/0308/1990 Vinod
Kumar v. Mohrawati and has referred the
paragraph 4 of the aforesaid judgment.

14. Paragraph 4 of the judgment is
quoted herein under:-

4. Section 399(1) of the Code of
Criminal Procedure runs as follows:

"399. Sessions Judge's powers of
revision (1) In the case of any proceeding
the record of which has been called for by
himself, the Sessions Judge may exercise
all or any of the powers which may be
exercised by the High Court under Subsection (1) of Section 401.

(2) and (3)........................"

This section deals with the power
of the Sessions Judge in revision and
clearly provides that powers of Sessions
Court in revision may be the same as High
Court and the Sessions Court can exercise
the same powers as the High Court while
disposing of the revision. Section 401(1)
Cr.P.C. defines the revisional powers of
High Court and it
runs as under:--

"401. High Court's powers of
revision --

(1)
In
the
case
of
any
proceeAppeal by Sections 386, 389, 390
and 391 or on a Court of Session by
Section
307
and,
when
the
Judges
composing the Court of revision are
equally divided in opinion, the case shall
be disposed of in the manner provided by
Section 392.

(2) to (5)..........................."

This section provides that High
Court may exercise any power conferred
on a court of appeal by Sections 386, 389,
390 and 391, Cr. P.C. Section 391, Cr.
P.C. provides that the appellate court may
take further evidence if the appellate court
thinks that additional evidence is necessary
for the proper adjudication of the case. The
appellate court further should record its
reasons before permitting any party to
adduce additional evidence. From the
perusal of the above mentioned provisions
of the Code of Criminal Procedure it is
settled that the Court of Session has similar
power as of High Court in revision and as
High Court is authorised to take additional
evidence in revision, therefore, the Sessions
Court has also jurisdiction to take
additional evidence in a revision. In the
case of Darshan Lal v. Indra Kumar
Mehta, reported in 1980 All Cri C 146, this
Court took a view:--

"The
Sessions
Judge
could
examine that question in view of the powers
5 All. Dr. Arun Kumar Singhal Vs. Smt. Tarawati
607
conferred on him by Sub-section (1) of
Section 397 of the Code of Criminal
Procedure. Further, under Sub-section (1)
of Section 399 a Sessions Judge, while
dealing with a revision, can exercise all or
any of the powers which may be exercised
by the High Court under Sub-section (1) of
Section 401. By this it would follow that if
the High Court, while dealing with a
revision can enhance the sentence, the
Sessions Judge can ding the record of
which has been called for by itself or which
otherwise comes to its knowledge, the High
Court may, in its discretion, exercise any of
the powers conferred on a Court of Appeal
by Sections 386, 389, 390 and 391 or on a
Court of Session by Section 307 and, when
the Judges composing the Court of revision
are equally divided in opinion, the case
shall be disposed of in the manner provided
by Section 392.

(2) to (5)..........................."

This section provides that High
Court may exercise any power conferred
on a court of appeal by Sections 386, 389,
390 and 391, Cr. P.C. Section 391, Cr.
P.C. provides that the appellate court may
take further evidence if the appellate court
thinks that additional evidence is necessary
for the proper adjudication of the case. The
appellate court further should record its
reasons before permitting any party to
adduce additional evidence. From the
perusal of the above mentioned provisions
of the Code of Criminal Procedure it is
settled that the Court of Session has similar
power as of High Court in revision and as
High Court is authorised to take additional
evidence in revision, therefore, the Sessions
Court has also jurisdiction to take
additional evidence in a revision. In the
case of Darshan Lal v. Indra Kumar
Mehta, reported in 1980 All Cri C 146, this
Court took a view:--

"The
Sessions
Judge
could
examine that question in view of the powers
conferred on him by Sub-section (1) of
Section 397 of the Code of Criminal
Procedure. Further, under Sub-section (1)
of Section 399 a Sessions Judge, while
dealing with a revision, can exercise all or
any of the powers which may be exercised
by the High Court under Sub-section (1) of
Section 401. By this it would follow that if
the High Court, while dealing with a
revision can enhance the sentence, the
Sessions Judge can also do it. According to
Sub-section (1) of Section 401 the High
Court, while dealing with a revision, can
exercise any of the powers conferred on an
appellate court, by Section 386, of the
Code. According to Clause (c) of Section
386 of the Code, the appellate court can, in
an appeal for enhancement of sentence,
alter the nature or the extent of the
sentence so as to enhance or reduce the
same. In view of this provision contained in
Section 386, Cr. P.C. it should be held that
High Court, while dealing with a revision,
can enhance the sentence.

"Since the High Court can
enhance the sentence while dealing with
revision, the Sessions Judge can also do
so."

No doubt in the case of Darshan
Lal (supra) the question involved was
whether Sessions Court has power to
enhance the sentence or not but the Bench
considered the provisions of Sections 397
and 401, Cr. P.C. and thereafter held that
in revision, Sessions Court can exercise
any of the powers which may be exercised
by the High Court under Sub-section (1) of
Section 401, Cr. P.C. In view of the
decision of Darshan Lal by a Bench of this
Court in my opinion the case of Smt.
Zaitoon v. State of U.P. 1987 All WC 640 is
not a-good law. In another case of Vedpal
Singh v. State reported in 1982 All Cri C
608 INDIAN LAW REPORTS ALLAHABAD SERIES
268 : (1982 Cri LJ Note 119) a single
Judge of this Court took a view that the
Sessions
Judge
can
exercise
power
analogous to that of High Court while
exercising
revisional
jurisdiction. The
Sessions Judge could, therefore, examine
the question of taking of additional
evidence in view of the powers conferred
on him by Sub-section (1) of Section 397,
Cr. P.C. because the powers of Sessions
Judge are analogous to those of the High
Court defined under Sub-section (1) of
Section 401, Cr. P.C. In view of these facts
I am of the opinion that the Sessions Judge
has jurisdiction to take additional evidence
in revision. In the instant case the Sessions
Judge while disposing of the| application
took the view that he has no jurisdiction to
entertain the application for permission to
adduce additional evidence in revision and,
therefore, in my opinion, the order dated 710-1989 passed on the application moved
by the applicant for permission to adduce
additional evidence is not a correct I order
and it is, therefore, liable to be set aside".

15. Relying on the aforesaid ratio, he
added that the coordinate Bench of this
Court has held that the Session Judge can
take the additional evidence in view of the
powers conferred on him under sub-section
(1) of section 397 of Cr.P.C. as the power
under sub-section (1) of section 401 of
Cr.P.C. is analogous.

16. He has further placed reliance on
judgment
reported
in
MANU/UP/3033/2014 and has also placed
reliance on paragraphs six and seven of the
aforesaid judgment and the same is quoted
herein under:-

"6. This Court in the case of
Vinod Kumar Versus Mohrawai reported in
1990
Criminal
Law
Journal
2068
(Lucknow Bench) has held that Court of
Sessions has similar power as of High
Court in revision and as High Court is
authorised to take additional evidence in
revision, therefore, the Sessions Court has
also
jurisdiction
to
take
additional
evidence.

7. Since powers conferred to the
Sessions Judge are analogous to the
powers of the High Court and there is
provision under Sections 391 and 401
Cr.P.C.
that
additional
evidence
in
criminal revision may be taken, therefore,
after analysing the impugned order with
the facts of the present case and also the
case law cited here- in-above, this Court
without going to this fact that applicant has
not availed any other forum, this Court
finds it to be a fit case for exercise of its
extra ordinary powers under Section 482
Cr.P.C. Since impugned order is in clear
violation of the legal provision and if it
sustained, there would be a miscarriage of
justice."

17. Placing reliance on the aforesaid
judgments, he added that the case of the
present revisionist is squarely covered with
ratio of the judgment aforesaid and since
the date of death of the husband of the
opposite party has wrongly been intimated
to the revisional court and taking the same
as true, the judgment and order has been
passed but, other wise the date of death of
the husband is 29.09.2009 and if that is
taken to be true, the marriage with the
present revisionist would be void and thus,
the application under section 125 of Cr.P.C.
would not be maintainable at the first hand.
He submits that this fact must change the
nature of the judgment and therefore, the
additional evidence is required to be taken
and to be considered and the matter may be
decided afresh. He thus, submits that the
order impugned passed by the trial court
5 All. Dr. Arun Kumar Singhal Vs. Smt. Tarawati
609
i.e.
Principal
Judge,
Family
Court,
Ambedkar Nagar, dated 26.09.2015, in
Case no. 272 of 2013 Smt Tarawat Vs Dr
Arun Kumar Singhal may be set aside.

18. Learned A.G.A appearing for the
State has opposed this case on the basis that
the factual disputes are involved in this
matter but, so far as the legal issue is
concerned, he has no objection to the
contention of learned counsel for the
revisionist.

19. Having heard learned counsels for
the parties and after perusal of material
placed on record, it is evident that the
husband of the opposite party, died on
29.09.2006. The learned counsel for the
revisionist filed a supplementary affidavit
thereby, appending the death certificate dated
29.09.2009 of the husband of opposite party,
namely Parshuram, which clearly shows that
the husband of the opposite party died on
29.09.2009 and admittedly this fact could not
be placed before the trial court due to
inadvertence
of
the
counsel
for
the
revisionist. The law is very clear on this point
that the litigant would not be left to be
suffered
for
inadvertence,
mistake
or
ignorance on the part of his counsel. If it is
found true that the date of death of the
husband of opposite party no. 2 is acutually
29.09.2009
and
not
29.09.2006
then,
certainly there must be change in the nature
of judgment and order which has been earlier
passed by the trial court.

20. When this court examines the
powers of the sessions judge in revision as
envisaged under section 399 (1) of Cr.P.C.,
it is abundantly clear that sessions judge
may exercise all or any of the powers
which may be exercised by the High Court
under sub-section (1) of section 401 of
Cr.P.C. Undoubtedly, the High Court has
ample power under section 401 (1) read
with section 397 of Cr.P.C. to call for
additional evidence to look into the
correctnesss, legality or propriety of any
finding, sentence or order recorded or
passed.

21. In view of the aforesaid
submissions and discussions, this Court is
of the firm opinion that the power
envisaged under section 399 (1) of Cr.P.C.
is analogous to the provision of section 401
(1) of Cr.P.C. and therefore, the trial court
can also take an additional evidence for
examining
the
regularity
of
any
proceedings, propriety of findings, legality
or order passed by the subordinate courts.
This controversy has also been settled in
case of Vinod Kumar Sharma Versus
Mohrawati and in case of Bhagwan
Swaroop, which also covers the case of the
present revisionist.

22. Resultantly, the impugned order
dated 26.09.2015, is hereby set aside.

23. Matter is transmitted back to the
court concerned for passing a fresh order
after taking additional evidence, which will
be submitted by the revisionist and after
affording opportunity to the concerned
parties in accordance with law.

24. The revisionist is directed to
submit this order before the trial court
within a period of forty five days form the
date of this order and the trial court shall
conclude the proceeding, in expedition
thereafter.

25. All the issues are open before the
trial court to decide afresh.

26. With the aforesaid observations,
the instant revision is hereby allowed.
610 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2023) 5 ILRA 610
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.04.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Revision No. 1547 of 2020

Gyanendra ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Sarvesh Kumar Dubey, Sri Virendra
Singh

Counsel for the Opposite Parties:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 307 & 504 - Code of Criminal
Procedure, 1973 - Section 451 - Against
seizure of property by police - The accused
armed
with
rifle,
started
abusing
informant and other persons, fired with
his licensed rifle, in which informant
escaped - Charge sheet - Licensed rifle
taken into possession by police, deposited
in
treasury
-
Release
Application
-
Rejected - Revisionist was valid licensee
of
impugned
rifle
-
Held,
Incharge
(Arms/ADM (Administration) reported to
concerned Magistrate that licence does
not belong to same District therefore, it
was not possible for authority to verify
arms
licence
-
In
absence
of
any
proceeding regarding confiscation and
cancellation of rifle, it would be case
property, release order may be passed -
Prosecution may take snaps of rifle and
preserve it as document for production in
court - The Magistrate was empowered to
impose some conditions while releasing
rifle - Informant has not supported
prosecution version - Impugned order
quashed, release application allowed -
Directions accordingly. (Para 3, 4, 6, 10,
12, 15, 16)

Criminal Revision allowed. (E-13)

List of Cases cited:

Sunder Bhai Amba Lal Desai Vs Gujrat St.,
(2002) 10 SCC 283

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Sri Sarvesh Kumar Dubey,
learned counsel for the revisionist, Sri
Anand Sagar, learned AGA for the State
and perused the record.

2. This revision has been preferred
against the order dated 20.07.2020 passed
by Additional Chief Judicial Magistrate,
Court No.1, Bulandshahr in Case Crime
No.264 of 2020 (State Vs. Gyanendra),
under Sections 307 and 504 IPC, Police
Station Jahagirabad, District Bulandshahr
and to release the revisionist's licensed rifle
bearing
Licence
No.K/146/ARMS/DM/KUL/202/2012
Rifle No.AB1300681- .315 Bore in his
favour.

3. In brief, facts of the case are that
Lakhma, opposite party no.2 lodged an FIR
on 15.06.2020 with the allegations that
accused Gyanendra has enmity with him
due to altercation occurred two years ago.
On 15.06.2020 at about 12:00 noon, the
informant, Lakhma, Surendra, Lal Singh,
Harveer, Manoj were sitting and watching
the government work going on near the
pond when the accused reached with rifle
and started abusing him and when the
informant prevented him, he fired upon him
with his licensed rifle with the intention to
kill him in which he escaped. On the above