# Gopal @ Ramgopal Revisionist (in Jail) v. State of U.P

- **Citation:** Criminal Revision Defective No. 117 of 2020
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-10
- **Case number:** Criminal Revision Defective No. 117 of 2020
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gopal-ramgopal-revisionist-in-jail-v-state-of-u-p-46291
- **Pages:** 4

## Headnote

law-Dowry
Prohibition
Act,1961- Sections 3/4-Code of Criminal
Procedure,1973-Section 397/401, 386 &
Indian Penal Code,1860-Sections 498-A,
323,506 & - challenge to-conviction and
enhancement
of
sentence-appeallate
court convicted the revisionist u/s 323
IPC,
after
reversing
judgement
of
acquittal erroneously-there must be an
appeal by State against the judgement of
acquittal-appellate court without issuing
notice and giving an opportunity convicted
the revisionist-it is misuse of process of
law -
 (Para 1 to 8)
1028 INDIAN LAW REPORTS ALLAHABAD SERIES
It is mandate that Appellate Courte will not
enhance sentence unless there is an appeal by
State for enhancement. in the instant case,
neither appeal by State either for enhancement
of sentence or for conviction in offence, for
which there was acquittal by trial court.
(Para 4 ,5)

The revision is allowed. (E-6)

## Text

3-5 All. Gopal @ Ramgopal Vs. State of U.P.
1027
of summoning an additional Accused
Under Section 319 Code of Criminal
Procedure should be exercised sparingly.
The key words in Section are "it appears
from
the
evidence"."any
person"."has
committed any offence". It is not, therefore,
that merely because some witnesses have
mentioned the name of such person or that
there is some material against that person,
the discretion Under Section 319 Code of
Criminal Procedure would be used by the
court." (emphasis added)

13. In view of above, it is clear that in
order to summon a person under Section
319 Cr.P.C., mere taking of name is not
sufficient but there must be something
more to show implication of person who
has been sought to be summoned.

14. Aforesaid statement of Informant
and victim clearly show that revisionists
and co-accused Raj @ Guddu were
involved in the commission of crime and
they also participated in incident. Whether
evidence of witnesses is correct or not,
credible
enough
or
not
to
sustain
conviction, is a matter which would be seen
after revisionists put in appearance, lead
evidence
and
thereafter,
Trial
Court
examines the entire evidence and records
its finding thereon. At the stage of
summoning of the revisionists on the basis
of aforesaid statements for trial, probable
defence of accused-revisionists summoned
under Section 319 Cr.P.C. cannot be
examined for the first time under the
revisional jurisdiction by this Court.

16. Looking to the facts of this case
and in the light of exposition of law, as
discussed above, I find that here is not a
case where mere name of revisionists have
been taken but details of incident have been
given showing the manner in which
revisionists have acted and committed
crime. Hence, it cannot be said that there is
no material whatsoever and also that on
mere probability of complicity they have
been summoned but there is appropriate
material and evidence to justify summoning
of revisionists under Section 319 Cr.P.C.
and I find no manifest error in the order
passed by Court below.

17. The revision lacks merit and is
accordingly dismissed.
----------
(2020)03-05ILR A1027
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.02.2020

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Criminal Revision Defective No. 117 of 2020

Gopal @ Ramgopal ...Revisionist (in Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Revisionist:
Sri Subedar Misra

Counsel for the Opposite Party:
A.G.A.

A.
Criminal
law-Dowry
Prohibition
Act,1961- Sections 3/4-Code of Criminal
Procedure,1973-Section 397/401, 386 &
Indian Penal Code,1860-Sections 498-A,
323,506 & - challenge to-conviction and
enhancement
of
sentence-appeallate
court convicted the revisionist u/s 323
IPC,
after
reversing
judgement
of
acquittal erroneously-there must be an
appeal by State against the judgement of
acquittal-appellate court without issuing
notice and giving an opportunity convicted
the revisionist-it is misuse of process of
law -
 (Para 1 to 8)
1028 INDIAN LAW REPORTS ALLAHABAD SERIES
It is mandate that Appellate Courte will not
enhance sentence unless there is an appeal by
State for enhancement. in the instant case,
neither appeal by State either for enhancement
of sentence or for conviction in offence, for
which there was acquittal by trial court.
(Para 4 ,5)

The revision is allowed. (E-6)

(Delivered by Hon'ble Ram Krishna
Gautam, J.)

1. This criminal revision under
Section 397/401 of Cr.P.C. has been filed
by Gopal @ Ram Gopal, against judgment
and order dated 1.2.2020, passed by
Additional District and Sessions Judge,
Court No. 2, Aligarh, in Criminal Appeal
No. 33/2019, Gopal @ Ram Gopal Vs.
State of U.P., whereby, order dated
25.2.2019, passed by trial Court of
Additional Chief Judicial Magistrate, Court
NO. 6, Aligarh, in Criminal Case No. 1705
of 2008, State Vs. Gopal @ Ram Gopal,
arising out of Case Crime No. 212 of 2008,
under Sections 498A, 323, 506 I.P.C. read
with Section 3/4 of D.P. Act, Police Station
Javan,, District Aligarh, has been enhanced
by Appellate Court, with this contention
that Appellate Court failed to appreciate
facts and law placed before it. Convict
appellant was convicted and sentenced for
offenses punishable under Section 498-A
I.P.C. with six months imprisonment and
fine of Rs. 1,000/-, and for offence
punishable under Section 4 of D.P. Act,
with six months imprisonment and fine of
Rs. 2,000/-, and in case of default in
payment of fine, he was to undergo
additional imprisonment of twenty days.
Against, this judgment of conviction and
sentence made therein, appeal was filed
before Appellate Court of Session Judge,
Aligarh, as Criminal Appeal No. 33/2019
(Gopal @ Ram Gopal Vs. State of U.P.)
and this appeal was transferred to Court of
Additional District and Sessions Judge,
Court No. IInd, of Aligarh, wherein, above
appeal was dismissed, confirming the
judgment of conviction dated 25.2.2019 of
trial Court. But, suo motu acquittal under
Section 323 I.P.C. was converted into
conviction, and sentence awarded were
enhanced to one year imprisonment with
fine of Rs. 50,000/-, under Section 498-A
I.P.C. and in case of default of fine, six
months imprisonment and fine of Rs.
10,000/-,
with
one
years
rigorous
imprisonment under Section 4 of D.P. Act
and
in
default
one
month
rigorous
imprisonment, with further sentence of six
months rigorous imprisonment with fine of
Rs. 1,000/-, and in default one month
rigorous
imprisonment
for
offence
punishable under section 323 of I.P.C.,
with a direction for concurrent running of
sentences and payment of 60 per cent of
total amount as compensation to victim.
Whereas, State has filed no appeal against
judgment
of
acquittal,
for
offence
punishable under section 323 of I.P.C. or
against quantum of sentence, awarded by
trial Court. Hence, appellate Court without
issuing
any
notice
and
giving
any
opportunity and without being any appeal
by State, has convicted for offence
punishable under Section 323 of I.P.C. as
well as enhanced sentence from six months
simple imprisonment to one year rigorous
imprisonment with fine of Rs. 50,000/- and
10,000/-,
respectively,
for
offences
punishable under Sections 498A I.P.C. and
4 of D.P. Act. It was apparently, erroneous
against provision of Section 386 of Cr.P.C.
Hence, this revision with above prayer.

2. Learned counsel for the revisionist
vehemently argued that Appellate Court
was either to pass a judgment affirming the
order of sentence or conviction made by
3-5 All. Gopal @ Ramgopal Vs. State of U.P.
1029
trial Court, or to set aside it with further
direction, if any. But, it may not enhance
sentence or may convert acquittal in
conviction without any appeal by State or
giving any opportunity to convict appellant.
It was an appeal by appellant, with prayer
for setting aside impugned judgment of
conviction and sentence made, therein. But
in that appeal, the Appellate Court has
convicted, after reversing judgment of
acquittal for offence punishable under
Section 323 of I.P.C. and enhanced
sentence as above.

3. Learned AGA agreed with above
situation of law and position of impugned
order that it was passed in an appeal filed
by convict appellant and no appeal by State
was there, regarding enhancement of
sentence or appeal against acquittal for
offence punishable under Section 323 of
I.P.C. was there. There is enhancement of
sentence for offences for which there was
conviction. This was without any appeal
filed by State.

4. Section 386 of Cr.P.C. propounds:
-

"386. Power of the Appellate
Court. After perusing such record and
hearing the appellant or his pleader, if he
appears, and the Public Prosecutor if he
appears, and in case of an appeal under
section 377 or section 378, the accused, if
he appears, the Appellate Court may, if it
considers that there is no sufficient ground
for interfering, dismiss the appeal, or may-

(a) in an appeal from an order or
acquittal, reverse such order and direct
that further inquiry be made, or that the
accused be re- tried or committed for trial,
as the case may be, or find him guilty and
pass sentence on him according to law;

(b)
in
an
appeal
from
a
conviction-

(i)
reverse
the
finding
and
sentence and acquit or discharge the
accused, or order him to be re- tried by a
Court
of
competent
jurisdiction
subordinate to such Appellate Court or
committed for trial, or

(ii) alter the finding, maintaining
the sentence, or

(iii) with or without altering the
finding, alter the nature or the extent, or
the nature and extent, of the sentence, but
not so as to enhance the Same;

(c) in an appeal for enhancement
of sentence-

(i)reverse
the
finding
and
sentence and acquit or discharge the
accused or order him to be re- tried by a
Court competent to try the offence, or

(ii) alter the finding maintaining
the sentence, or

(iii) with or without altering the
finding, alter the nature or the extent, or
the nature and extent, of the sentence, so as
to enhance or reduce the same;

(d) in an appeal from any other
order, alter or reverse such order;

(e) make any amendment or any
consequential or incidental order that may
be just or proper; Provided that the
sentence shall not be enhanced unless the
accused has had an opportunity of showing
cause against such enhancement: Provided
further that the Appellate Court shall not
inflict greater punishment for the offence
1030 INDIAN LAW REPORTS ALLAHABAD SERIES
which in its opinion the accused has
committed, than might have been inflicted
for that offence by the Court passing the
order or sentence under appeal."

5. Under sub-Section (III) of "b" of
Section 386 of Cr.P.C. written as above, it
is mandate that Appellate Court will not
enhance sentence unless there is an appeal
by State for enhancement of sentence and
the same is being here. Against judgment
of acquittal, there must be an appeal by
State, whereas, admittedly, in present
appeal, there was neither appeal by State
either for enhancement of sentence or for
conviction in offence, for which there was
acquittal by trial Court and learned
Additional Session Judge, has passed
impugned judgment of conviction and
sentence under Section 323 of I.P.C., with
enhancement of offence punishable under
Sections 498-A read with 4 of D.P. Act. It
was apparently erogenous and against the
provision of law of 'Code' given as above.

6. Hence, apparently, it is misuse of
process of law and perversity in the
judgment.

7. Hence, this revision is being
allowed.

8. Impugned judgment of Appellate
Court is being set aside and file is
remanded back to District and Sessions
Judge, Aligarh, for its hearing afresh.
----------
(2020)03-05ILR A1030
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 21.05.2020

BEFORE

THE HON'BLE CHANDRA DHARI SINGH, J.

Criminal Revision No. 128 of 2020

Shalini Sahai & Anr. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Shishir Pradhan

Counsel for the Opposite Parties:
Govt. Advocate, Sri Ashok Kumar Singh

A.
Criminal
law-
Code
of
Criminal
Procedure,1973-Section 397/401, 156(3)
&
Indian
Penal
Code,
1860-Sections
506,504, 406,420-challenge to-remedy of
revision against the order u/s 156(3)-
prospective accused has no locus standi to
challenge a direction for investigation of a
cognizable case u/s 156(3) Cr.P.C. before
cognizance or issuance of process against
the accused-accused gets right of hearing
only if cognizance is taken or process
issued-before that stage any order will be
interlocutory in nature-hence, remedy of
revision against the order u/s 156(3) is
barred u/s 397.(Para 11 to 33)

Orders summoning witnesses, adjouring cases,
passing orders for bail, calling for reports and such
other steps in aid of the pending proceeding, may no
doubt amount to interlocutory orders against which
no revision would lie u/s 397(2) of the 1973 Code. But
orders which are matters of moment and which affect
or adjudicate the rights of the accused or a particular
aspect of the trial cannot be said to be interlocutory
order so as to be outside the purview of the revisional
jurisdiction of the High Court.(Para 27)

The revision is dismissed. (E-6)

List of Cases Cited:-

1. Anil Kumar & Ors. Vs. M.K. Aiyappa & anr. (2013)
10 SCC 705

2. Father Thomas Vs. St. Of U.P. & anr. (2011) 1 JIC
533 (ALL) (FB)

3. Suresh Chand Jain Vs. St. Of M.P. & ors., AIR
(2001) SC 571