# Mahesh Chandra Revisionist v. State of U.P. & Anr

- **Citation:** (2023) 9 ILRA 663
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-25
- **Case number:** Criminal Revision No. 259 of 2004
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahesh-chandra-revisionist-v-state-of-u-p-anr-50727
- **Pages:** 5

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397 r. w.
Section 401 - revision - Indian Penal Code,
1860 - Sections 302 & 304 Part II -
rehabilitary & reformative aspects in
sentencing - 'principle of proportionality' -
Sentence should be based on facts of a
given case - Gravity of offence, manner of
commission of crime, age and sex of
accused should be taken into account -
Discretion of Court in awarding sentence
cannot
be
exercised
arbitrarily
or
whimsically - sentence should not be
either excessively harsh or ridiculously
low.(Para - 8,9)

Respondent no. -2 convicted under Section 304
Part II I.P.C. - instead of Section 302 I.P.C. - no
direct evidence - sentenced for five years
imprisonment and fine - hence revision.(Para -
2)

HELD:-No accused person is incapable of
being reformed and therefore, all measures
should be applied to give them an opportunity
of reformation in order to bring them in the
social stream. Court's view was based on valid
reasons and was considered probable and
logical. Judgment of court below cannot be
said to be illegal, illogical and improbable and
not based on material on record or is based
on erroneous views and is against the settled
position of law. No interference required.
(Para - 11,13)

Revision dismissed. (E-7)

List of Cases cited:

## Text

9 All. Mahesh Chandra Vs. State of U.P. & Anr.
663
prepared and filed before authorities. The
version of P.W.-3 and P.W.-4 in their
affidavits is exactly the one, which supports
the prosecution. P.W.-3 has stated that after
he over heard the conversation of Satya
Narayan Shukla with the two accused, he
was warned by Satya Narayan Shukla not
to inform of facts in that regard to anyone.
According to these two witnesses, they
immediately left the village and gave their
affidavits only after Satya Narayan Shukla
and his two sons were arrested. The two
witnesses have been cross-examined with
regard to the knowledge about arrest of
Satya Narayan Shukla and his two sons. No
specific details in that regard have been
disclosed. It is admitted that Satya Narayan
Shukla and his two sons were arrested in
June, 2004 itself and facts in that regard
had also published in the newspapers. If
that was so, it is difficult to understand that
as to why the affidavit was given by these
two after nearly two months. P.W.-8, who
is the other witness of conspiracy, has also
come out with a case of extra judicial
confession made to P.W.-8. The evidence
of P.W.-8 has been examined by us, which
is not found to be very inspiring. P.W.-8 is
a political person. He alleges that the
accused were known to him from before
but it has not been able explain as to when
the accused have met him and in what
context. Extra judicial confession by its
very nature is otherwise a very weak piece
of evidence. The prosecution case in the
form of testimony of P.W.-8 as well as
statements of P.W.-3 and P.W.-4 do not
appear to be natural and convincing. Their
testimony appears to have been introduced
later only with the intent of implicating the
two sons of Satya Narayan Shukla. We
are, therefore, of the view that the trial
court has not erred in coming to the
conclusion
that
prosecution
has
not
succeeded in establishing the guilt of the
two accused and thereby acquit them. We
do not find any force in the Government
Appeal
No.983
of
2006,
which
is
consequently dismissed and consigned to
the records.

45. In view of the deliberations and
discussions held above, Criminal Appeal
No.4894 of 2005 filed on behalf of the
accused-appellant Anil Kumar Ahirwar
fails and is dismissed. He is on bail. He
shall surrender before the trial court within
a period of 15 days to serve out the
remaining sentence.

46. Criminal Appeal No.5303 of
2005 Chhotu Pilot @ Deepak Nai
succeeds
and
is
allowed.
Accusedappellant Chhotu Pilot @ Deepak, who is
on bail, therefore, his bail bonds shall be
discharged. He need not surrender. He
shall file personal bond and surety bonds
in compliance of Section 437A Cr.P.C. to
the satisfaction of trial court within a
period of four weeks.

47. The office is directed to transmit
the lower court record along with a copy of
the judgement to the trial court which shall
ensure the compliance.
----------
(2023) 9 ILRA 663
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.08.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Revision No. 259 of 2004

Mahesh Chandra ...Revisionist
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionist:
664 INDIAN LAW REPORTS ALLAHABAD SERIES
Sharad Pathak

Counsel for the Respondents:
G.A., Sri B.B. Singh

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397 r. w.
Section 401 - revision - Indian Penal Code,
1860 - Sections 302 & 304 Part II -
rehabilitary & reformative aspects in
sentencing - 'principle of proportionality' -
Sentence should be based on facts of a
given case - Gravity of offence, manner of
commission of crime, age and sex of
accused should be taken into account -
Discretion of Court in awarding sentence
cannot
be
exercised
arbitrarily
or
whimsically - sentence should not be
either excessively harsh or ridiculously
low.(Para - 8,9)

Respondent no. -2 convicted under Section 304
Part II I.P.C. - instead of Section 302 I.P.C. - no
direct evidence - sentenced for five years
imprisonment and fine - hence revision.(Para -
2)

HELD:-No accused person is incapable of
being reformed and therefore, all measures
should be applied to give them an opportunity
of reformation in order to bring them in the
social stream. Court's view was based on valid
reasons and was considered probable and
logical. Judgment of court below cannot be
said to be illegal, illogical and improbable and
not based on material on record or is based
on erroneous views and is against the settled
position of law. No interference required.
(Para - 11,13)

Revision dismissed. (E-7)

List of Cases cited:

1. Mohd. Giasuddin Vs St. of A.P., AIR 1977 SC
1926

2. Deo Narain Mandal Vs St. of U.P. , (2004) 7
SCC 257

3. Ravada Sasikala Vs St. of A.P. , AIR 2017 SC
1166
4. Jameel Vs St. of U.P. , (2010) 12 SCC 532

5. Guru Basavraj Vs St. of Karn., (2012) 8 SCC
734

6. Sumer Singh Vs Surajbhan Singh, (2014) 7
SCC 323

7. St. of Pun. Vs Bawa Singh, (2015) 3 SCC 441

8. Raj Bala Vs St. of Har., (2016) 1 SCC 463

9. Jagriti Devi Vs St. of H.P. ,(2009) 14 SCC 771

10. Bhagwan Singh Vs St. of Uttarakhand ,
(2020) 14 SCC 184

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard learned counsel for the
parties and perused the record.

2. This revision has been preferred by
the revisionist under Section 397 read with
section 401 Cr.P.C. against the judgment
and order dated 18.03.2004 passed by the
Additional District Sessions Judge/ F.T.C.-
II, Sultanpur in Session Trial No. 192 of
2002: State Vs Raja Ram, whereby the
respondent no. -2 was convicted under
Section 304 Part II I.P.C. instead of Section
302 I.P.C. and was sentenced for five years
imprisonment and fine of Rs.1000/-.

3. Learned counsel for the revisionist
submits that the court below did not
appreciate the evidence on record. He
further
submits
that
prosecution
has
successfully proved the offence against the
accused/ opposite party No.2 on the basis
of evidence. The judgement was passed
without considering the statement of
witnesses and the case was set up by the
prosecution upon surmises and conjectures.

4. Learned A.G.A. submits that there
appears no illegality or infirmity in the
9 All. Mahesh Chandra Vs. State of U.P. & Anr.
665
impugned order passed by the court below,
therefore, this revision may be dismissed.

5. I have heard the learned counsel for
the parties and considered the ground as
well as the learned A.G.A. and gone
through the judgment passed by the court
below.

6. In the present case from the
statements given by the witnesses/evidence
produced by the prosecution, the court
below after going through the material
placed on record, has given its finding that
the opposite party No.2 has not committed
offence under Section 302 I.P.C. rather the
court below has framed charges under
Section 304 (II) I.P.C. and sentenced him
to
undergo
five
years
rigorous
imprisonment and fine of Rs.1000/-. Thus,
it appears that the prosecution has failed to
establish that the crime/offence under
Section 302 I.P.C. has been committed by
the accused / opposite party No.2 and there
was no direct evidence produced by the
prosecution regarding involvement of the
opposite party No.2 in the crime/offence
under Section 302 I.P.C.

7. Further, learned counsel for the
revisionist could not point out any illegality
or infirmity in the impugned order passed
in favor of opposite parties which is before
this Court.

8. Further, Hon'ble Apex Court in
case of Mohd. Giasuddin Vs. State of AP,
[AIR 1977 SC 1926], had observed the
rehabilitary & reformative aspects in
sentencing :

"Crime
is
a
pathological
aberration. The criminal can ordinarily be
redeemed and the state has to rehabilitate
rather than avenge. The sub-culture that
leads to ante-social behaviour has to be
countered not by undue cruelty but by
reculturization. Therefore, the focus of
interest in penology in the individual and
the goal is salvaging him for the society.
The infliction of harsh and savage
punishment is thus a relic of past and
regressive times. The human today vies
sentencing as a process of reshaping a
person
who
has
deteriorated
into
criminality and the modern community has
a primary stake in the rehabilitation of the
offender as a means of a social defence.
Hence a therapeutic, rather than an 'in
terrorem' outlook should prevail in our
criminal courts, since brutal incarceration
of the person merely produces laceration of
his mind. If you are to punish a man
retributively, you must injure him. If you
are to reform him, you must improve him
and, men are not improved by injuries."

9. It is also noteworthy that while
determining the quantum of sentence, the
court should bear in mind the 'principle of
proportionality'. Sentence should be based
on facts of a given case. Gravity of offence,
manner of commission of crime, age and
sex of accused should be taken into
account. Discretion of Court in awarding
sentence cannot be exercised arbitrarily or
whimsically. The sentence should not be
either excessively harsh or ridiculously low
as observed in case of Deo Narain Mandal
Vs State of U.P. [(2004) 7 SCC 257]

10. Further in Ravada Sasikala vs.
State of A.P. AIR 2017 SC 1166, the
Supreme Court referred the judgments
in Jameel vs State of UP [(2010) 12 SCC
532], Guru Basavraj vs State of Karnatak,
[(2012) 8 SCC 734], Sumer Singh vs
Surajbhan Singh, [(2014) 7 SCC 323],
State of Punjab vs Bawa Singh, [(2015) 3
SCC 441],Raj Bala vs State of Haryana,
666 INDIAN LAW REPORTS ALLAHABAD SERIES
[(2016) 1 SCC 463], Jagriti Devi Vs State
of H.P. (2009) 14 SCC 771 and in
Bhagwan Singh Vs State of Uttarakhand
(2020) 14 SCC 184 and has reiterated that,
in operating the sentencing system, law
should adopt corrective machinery or
deterrence based on factual matrix. Facts
and given circumstances in each case,
nature of crime, manner in which it was
planned
and
committed,
motive
for
commission of crime, conduct of accused,
nature of weapons used and all other
attending circumstances are relevant facts
which
would
enter
into
area
of
consideration. Further, undue sympathy in
sentencing would do more harm to justice
dispensations and would undermine the
public confidence in the efficacy of law. It
is the duty of every court to award proper
sentence having regard to nature of offence
and manner of its commission. The
supreme court further said that courts must
not only keep in view the right of victim of
crime but also society at large. While
considering
imposition
of
appropriate
punishment, the impact of crime on the
society as a whole and rule of law needs to
be balanced. The judicial trend in the
country has been towards striking a balance
between reform and punishment. The
protection of society and stamping out
criminal proclivity must be the object of
law which can be achieved by imposing
appropriate sentence on criminals and
wrongdoers. Law, as a tool to maintain
order and peace, should effectively meet
challenges confronting the society, as
society could not long endure and develop
under
serious
threats
of
crime
and
disharmony. It is therefore, necessary to
avoid undue leniency in imposition of
sentence.
Thus,
the
criminal
justice
jurisprudence adopted in the country is not
retributive but reformative and corrective.
At the same time, undue harshness should
also be avoided keeping in view the
reformative approach underlying in our
criminal justice system.

11. Keeping in view the facts and
circumstances of the case and also keeping
in view criminal jurisprudence in our
country which is reformative and corrective
and not retributive, this Court considers
that no accused person is incapable of
being reformed and therefore, all measures
should be applied to give them an
opportunity of reformation in order to bring
them in the social stream.

12 . In the light of the aforesaid
guidelines, the impugned judgment has to
be considered from the point of view
whether the view taken by the court below
was a probable view based on the material
on record or it is an absolutely erroneous
judgment devoid of merits.

13. Keeping in view the aforesaid
weakness of the prosecution case, as noted
by the court below, I am of the view that
the view taken by the court below was a
probable and logical view, which is based
on valid reasons. The judgment of the court
below cannot be said to be illegal, illogical
and improbable and not based on material
on record or is based on erroneous views
and is against the settled position of law.
So, this Court is satisfied that there is
absolutely no hope of success in this
revision and accordingly, no interference is
called for.

14. Accordingly, the present revision
is dismissed.

15. No order as to costs.

16. Copy of this judgment be sent to
the court below for its compliance.
9 All. Mohit Kumar Goyal Vs. State of U.P. & Anr.
667
----------
(2023) 9 ILRA 667
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.08.2023

BEFORE

THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Revision No. 301 of 2023

Mohit Kumar Goyal ...Revisionist
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionist:
Sri Prashant Vyas, Ms. Kanchan Sharma, Sri
Nitin Kumar Agrawal

Counsel for the Respondents:
G.A., Sri Saumitra Dwivedi, Sri Pradeep
Kumar Mishra, Sri Vinay Saran (Sr. Adv.)

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
revision - Indian Penal Code, 1860 -
Sections 406, 420, 467, 468, 471 & 120-B
- Constitution of India - Article 21- orders
summoning witnesses, adjourning 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 under Section 397 (2) of
the Code of Criminal Procedure.(Para -
30,31)

Transit Anticipatory Bail - Accused in custody -
no bail application made - Magistrate accepted
remand
application
-
accepted
accused's
remand - accused should be summoned to Tihar
Jail - taking warrant "B" under Section 167
Cr.P.C. - accused directly/indirectly in custody
of court - accused cannot be given benefit of
anticipatory bail. (Para -17)

HELD:-No illegality or infirmity in the impugned
order passed by the concerned Magistrate.
Anticipatory bail on behalf of a person who is
already in custody with the Police or is already
in jail in another criminal case would not lie and
would be nothing but travesty of justice in
allowing the anticipatory bail to such an
accused.
Criminal
revision
against
an
interlocutory/interim
order
like
the
order
impugned is not maintainable. (Para -27,32)

Criminal Revision dismissed. (E-7)

List of Cases cited:

1. Amit Kapoor Vs Ramesh Chander & anr. ,
(2012) 9 SCC 460

2. Narinderjit Singh Sahni & anr. Vs U.O.I. ,
(2002) 2 SCC 210

3. Amar Nath & ors. Vs St. of Har. & ors. ,
1977 0 AIR (SC) 2185

4. Honnaiah T.H. Vs St. of Karn. & ors. , 2022
SCC OnLine SC 1001

(Delivered by Hon'ble Shiv Shanker
Prasad, J.)

1. Heard Sri Nitin Kumar Agarwal,
Advocate holding the brief of Ms. Kanchan
Sharma, Advocate, Sri Prashant Vyas,
learned counsel for the revisionist, Sri
Vinay Saran, learned Senior Counsel
assisted by Sri Pradeep Kumar Mishra,
learned counsel for the opposite party no. 2
and Mr. Ratnesh Nandan Singh, learned
A.G.A.-I for the State.

2. By means of the present criminal
revision, the revisionist is challenging the
order dated 03.11.2022 passed by Second
Additional
Chief
Judicial
Magistrate,
Gautam Budh Nagar in Case Crime No.
106 of 2021, under Sections 406, 420, 467,
468, 471 & 120-B I.P.C., Police Station
Surajpur, District Gautam Budh Nagar,
whereby
the
learned
Magistrate
has
accepted the remand and issued "B"
warrant as also directed the accusedrevisionist to appear in jail.