# Nathoo Revisionist v. State of U.P. Opp. Party

- **Citation:** (2015) 3 ILRA 1050
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-09-04
- **Case number:** Criminal Revision No. 168 of 1987
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nathoo-revisionist-v-state-of-u-p-opp-party-43346
- **Pages:** 9

## Headnote

Cr.P.C.-Section 397/401-Criminal Revisionagainst conviction u/s 7/16 prevention
of Food Adulteration Act-sole ground non
complinace of provisions Section 10 (7)-
held-when no people come forward to
witness the incident-proceeding would
not vitiate-trail court taken very lenient
view intervene by Revisional courtunwarranted-revision dismissed.
Held: Para-19
In the present case, the prosecution has
clearly proved that an attempt was made
to get independent witness at the time
of taking sample and seizure but since
none came forward, hence, the Food
Inspector proceeded further. Hence the
mere fact that independent witness is
not there, proceedings would not vitiate.
Case Law discussed:
1991 Cri.L.J. 2174; 1974 (4) SCC 491; 1993 All
Criminal Cases 47; 1993 (1) FAC 93; AIR 1992
SC 1121; Criminal Revision No. 976 of 1989;
2009 (7) SCC 254; 2010 (12) SCC 532; 2012
(8) SCC 734; 2013 (3) JT 444; 2013 (9) SCC
516; AIR 1951 SC 196; AIR 1962 SC 1788; AIR
1968 SC 707; AIR 1970 SC 272; AIR 1975 SC
580; 2008 Cr.L.J. 1627 (S.C.); 1986 (2) SCC
585; 2001 (9) SCC 631; 2004 (7) SCC 665.

## Text

1050
 INDIAN LAW REPORTS ALLAHABAD SERIES
4 (Superintendent, Nari Niketan, Parag
Narain Road, Lucknow) to release the
petitioner, forthwith.
38- Let copy of the order be
supplied under the signature of Bench
Secretary.
39- Let a copy of the order be sent to
the concerned Magistrate. Senior Registrar of
the Court is directed to ensure compliance.
--------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.09.2015
BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
Criminal Revision No. 168 of 1987
Nathoo
 ...Revisionist
Versus
State of U.P.
...Opp. Party
Counsel for the Revisionist:
Sri M.W. Siddiqui, Sri Neeraj Kumar
Srivastava
Counsel for the Opp. Parties:
A.G.A.
Cr.P.C.-Section 397/401-Criminal Revisionagainst conviction u/s 7/16 prevention
of Food Adulteration Act-sole ground non
complinace of provisions Section 10 (7)-
held-when no people come forward to
witness the incident-proceeding would
not vitiate-trail court taken very lenient
view intervene by Revisional courtunwarranted-revision dismissed.
Held: Para-19
In the present case, the prosecution has
clearly proved that an attempt was made
to get independent witness at the time
of taking sample and seizure but since
none came forward, hence, the Food
Inspector proceeded further. Hence the
mere fact that independent witness is
not there, proceedings would not vitiate.
Case Law discussed:
1991 Cri.L.J. 2174; 1974 (4) SCC 491; 1993 All
Criminal Cases 47; 1993 (1) FAC 93; AIR 1992
SC 1121; Criminal Revision No. 976 of 1989;
2009 (7) SCC 254; 2010 (12) SCC 532; 2012
(8) SCC 734; 2013 (3) JT 444; 2013 (9) SCC
516; AIR 1951 SC 196; AIR 1962 SC 1788; AIR
1968 SC 707; AIR 1970 SC 272; AIR 1975 SC
580; 2008 Cr.L.J. 1627 (S.C.); 1986 (2) SCC
585; 2001 (9) SCC 631; 2004 (7) SCC 665.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. Heard Sri Neeraj Kumar Srivastava,
learned counsel for revisionist, learned
A.G.A. of State-respondent; and, perused the
record.
2.
The prosecution story, inter alia, is
that on 11.11.1979 at about 10.00 AM the
accused-revisionist, Nathoo, was found selling
milk at Ardali Bazaar, Police Station Cantt.,
District Varanasi. There was 10 KG of milk in
a container with him. Milk was checked by
Chief Food Inspector, Sri J.P. Dhuria, who
purchased 60 ML of Cow milk as sample on
payment of Rs. 75/- after duly serving a notice
in Form-6. Thereafter at the spot the milk was
divided into three parts, kept in three bottles
which were duly sealed. One of the sealed
bottle was sent to Public Analyst for analysis
and remaining two bottles of sample were
kept in reserve in the office of local Health
Officer. According to report of Public
Analyst, sample was found adulterated. After
sending a copy of the said report to the
accused-revisionist and obtaining requisite
sanction
from
Chief
Medical
Officer,
Varanasi for instituting complaint, State filed
complaint Case No. 5410 of 1984 submitting
charge-sheet against the accused revisionist
under Section 7/16 of the Prevention of Food
Adulteration Act, 1954 (hereinafter referred to
as
"Act,
1954").
3 All] Nathoo Vs. State of U.P.
1051
3. To prove the offence levelled
against revisionist-accused, prosecution
examined PW 1, Sri Ram Srivastava,
Food Inspector; and, PW 2, Sri Rajendra
Prasad, Food Clerk.
4. The accused-revisionist pleaded
not guilty and stated that he was
implicated on account of enmity with
Food Inspector. In his defence, he
examined DW 1, Sri Sharda Prasad, and,
DW 2, Sri Purushottam.
5. Placing reliance on the statements
of the prosecution witnesses, the learned
Magistrate convicted accused for the
offence under Section 7/16 of Act, 1954
and sentenced him to six months' rigorous
imprisonment and a fine of Rs. 1000/-
vide judgment dated 14.10.1986. Being
aggrieved,
the
revisionist
preferred
appeal, but concurring with the judgment
of Trial Court, Sri S.N. Pandey, 8th
Additional
Sessions Judge,
Varanasi
dismissed
revisionist's
appeal
vide
judgment and order dated 12.01.1987.
6. Learned counsel for revisionist
contended that there is no compliance of
Section 10(7) of Act, 1954 as there was
no independent witness who has signed
sample taken by Food Inspector and,
therefore, entire prosecution is bad and
liable to be set aside.
7. Trial Court has considered this
aspect and has given two reasons to
discard it. One that Food Inspector has
proved that at the time of collecting
sample, a large number of people
collected but none was ready to witness
the proceedings and, therefore, signature
of independent witness at the time of
collection of sample could not be
obtained. This fact was duly mentioned in
the report as well as charge-sheet and
further proved in oral evidence by PW-1,
Sri Ram Srivastava.
8. Secondly, the accused himself had
admitted that sample was collected by
Food Inspector from the accused, but he
has tried to explain the fact that he was
not carrying milk for sale but there was a
religious ceremony at his residence and he
was taking milk thereat. Before this
Court, the contention has been advanced
but the fact that the members of public
who gathered at the time of taking sample
were not agreeable to become witness
could not be shown otherwise. In absence
of any person being ready to witness the
procedure of taking sample and seizure,
the factum that no independent witness
has signed collection of sample and
seizure does not vitiate the proceedings,
particularly, when collection of sample
from accused is admitted by him.
9. Section 10 (7) of Act, 1954 reads
as under:
"Section 10(7)- Where the Food
Inspector takes any action under clause
(1) of sub-section (1), sub-section (2),
sub-section (4), or sub-section (6), he
shall call one or more persons to be
present at the time when such action is
taken and take his or their signatures."
10. The objective of Section 10 (7)
of Act, 1954 is to ensure that actual or
genuine transaction of sale of sample and
its formalities have been observed. The
provision is mandatory in so much so that
Food Inspector must make genuine efforts
to get the corroboration of one or more
persons present on the spot to witness his
act of taking sample and completion of
other formalities. Once such an effort has
1052
 INDIAN LAW REPORTS ALLAHABAD SERIES
been made, but in vain, it cannot be said
that there is any non-compliance of
Section 10(7) of Act, 1954.
11. Section 10(7) was amended in
1964 and prior thereto there were words
"as far as possible call not less than two
persons". The words "as far as possible"
were deleted by amendment of 1964. It
was sought to be argued, therefore, that
deletion means that if the independent
witnesses do not corroborate the action of
Food Inspector in taking sample etc., it
shall vitiate the Trial.
12. A learned Single Judge of Kerala
High Court in The Food Inspector,
Palakkad Vs. M.V. Alu and another, 1991
Cri.L.J. 2174 considered it and in para 2
of the judgment said that sub-section (7)
of Section 10 is only intended as a
safeguard to ensure fairness of action
taken by Food Inspector. What he is
obliged to do is only to call one or more
independent persons to be present and
attest
when
he
takes
action.
If
independent persons were available and
even then the Food Inspector did not want
their presence or attestation, it could be
said that he violated Section 10(7). If
independent persons available did not
care to oblige him in spite of his 'call', he
cannot be said to have violated Section
10(7). The duty is only to make an earnest
attempt in getting independent witnesses.
If that earnest attempt did not succeed on
account of refusal of independent persons,
it cannot be said that Section 10(7) is
violated. In such a contingency, nothing
prevents the uncorroborated evidence of
the Food Inspector being accepted, if
found acceptable.
13. In another matter arisen from
State of Uttar Pradesh itself, a three
Judges Bench of Apex Court had occasion
to consider this aspect in Shri Ram
Labhaya Vs. Municipal Corporation of
Delhi and another, 1974(4) SCC 491 and
in paras 5 and 6 thereof the Court said:
"5.
We
are
of
the
opinion,
particularly in view of the legislative
history of Section 10(7), that while taking
action under any of the provisions
mentioned in the Sub-section, the Food
Inspector
must
call
one
or
more
independent persons to be present at the
time when such action is taken. We are,
however, unable to agree that regardless
of all circumstances, the non-presence of
one or more independent persons at the
relevant time would vitiate the trial or
conviction. The obligation which Section
10(7) casts on the Food Inspector is to
'call' one or more persons to be present
when he takes action. The facts in the
instant case show that the Food Inspector
did call the neighbouring shopkeepers to
witness the taking of the sample but none
was willing to co-operate. He could not
certainly compel their presence. In such
circumstances,
the
prosecution
was
relieved
of
its
obligation
to
cite
independent witnesses. In Babu Lal
Hargovindas v. State of Gujarat, AIR
1971 SC 1277 it was held by this Court
after noticing that Section 10(7) was
amended in 1964, that non-compliance
with it would not vitiate the trial and since
the Food Inspector was not in the position
of an accomplice his evidence alone, if
believed, can sustain the conviction. The
Court observed that this ought not to be
understood as minimizing the need to
comply with the salutary provision in
Section 10(7) which was enacted as a
safeguard against possible allegations of
excesses or unfair practices by the Food
Inspector.
3 All] Nathoo Vs. State of U.P.
1053
6. As stated earlier the Food Inspector
was unable to secure the presence of
independent persons and was therefore
driven to take the sample in the presence of
the members of his staff only. It is easy
enough to understand that shopkeepers may
feel bound by fraternal ties but no court can
countenance a conspiracy to keep out
independent witnesses in a bid to defeat the
working of laws."
14. From the above it is clear that
Apex Court also took the view that what
is important to attract Section 10(7) is that
the Food Inspector at least should try to
secure
presence
of
one
or
more
independent witness when he takes action
under any of the provisions mentioned in
Section 10(7). Once that has been done,
evidence of Food Inspector himself, even
if not corroborated by independent
witnesses, can be relied if the Trial Court
finds it otherwise acceptable. It is not to
be discarded only for the reason that
independent witnesses have not signed the
sample and seizure documents.
15. This Court also considered this
aspect in Nagar Swasthya Adhikari Nagar
Mahapalika Vs. Mohammad Wasim, 1993
All Criminal Cases 47. Here the Court
further said that object of indicating
Section 10(7) is to ensure that particular
sample is taken from the accused. The
object is to keep the act of taking sample
above suspicion. Compliance of subsection (7) of Section 10 is necessary only
for satisfying the Court that requisite
sample was taken as alleged. Court's
scrutiny of such compliance becomes
unnecessary when the accused admits
taking of such sample.
16. Once the efforts have been made
by Food Inspector to call for one or more
independent witnesses but none agreed or
cooperated, then it cannot be said that
there is any breach of requirement of
Section 10(7) and it will not vitiate the
prosecution at all. Here I am fortified by a
decision of Madras High Court in Public
Prosecutor Vs. Ramachandran, 1993(1)
FAC 93.
17. The Apex Court in State of U.P.
Vs. Hanif, AIR 1992 SC 1121 said that
there is no such law that the evidence of
Food Inspector must necessarily need
corroboration
from
independent
witnesses. His evidence is to be tested on
its own merits and if found acceptable the
Court would be entitled to accept and rely
on to prove prosecution case.
18. Following the above authorities
and taking similar view, this Court in
Criminal Revision No. 976 of 1989
(Ramesh Chandra Vs. State of U.P.)
decided on 11.12.2014 in para 18 of
judgment said as under:
"18. It is the duty of Food Inspector to
call one or more independent persons to be
present at the time of taking sample and
once that is done by him it is sufficient but if
the witnesses are not ready to come forward
and sign the documents the Food Inspector
cannot compel them and, therefore, where
the attempt has been made but failed, lack
of signature by independent witness would
not vitiate the trial."
19. In the present case, the prosecution
has clearly proved that an attempt was made
to get independent witness at the time of
taking sample and seizure but since none
came forward, hence, the Food Inspector
proceeded further. Hence the mere fact that
independent witness is not there, proceedings
would not vitiate.
1054
 INDIAN LAW REPORTS ALLAHABAD SERIES
20. Next it is contended that incident
is of 1979 and more than 35 years have
passed, therefore, punishment may be
reduced to the period already undergone
or only fine.
21. Here also I find myself difficult to
accept the submission. It is a case where the
revisionist
has
been
found
making
adulteration in the food article. Adulteration in
food article has a direct adverse consequence
to the health of public. Many a times such
adulteration with food causes such serious loss
to the consumer, which is unrecoverable and
create permanent disability or loss etc. It
cannot be ascertained as to whether the milk
sold by accused-revisionist would have been
used by a healthy person or a patient facing
serious disease in the Hospital or otherwise.
The adulterated item is bound to cause such
loss as it could be and the consumer would
suffer without having any knowledge therefor.
The people who are indulged in adulteration
are more serious enemy of humanity than
those who commit crime by killing a person
in a straight manner. Here the hidden crime
cause injury to a person who has no idea as to
how he has suffered. He believed that food
articles contain substance as naturally are
supposed to be present there, but adulteration
has changed its nature in a bad way.
Consumer suffers in ignorance but with an
obvious confidence that whatever he is
intaking is alright. The adulterators, therefore,
do commit a much henious and serious crime
to the Society as a whole and deserve no
sympathy.
22.
In fact, in our Country, we deal
with adulteration with lot of sympathy which
is encouraging continuous indulgence in
such activities and the reason is that
adulteration is not being treated with such
seriousness as it ought to be. This treatment
to adulteration is anti-human and antisociety. The act of adulteration need be
viewed with absolute strictness and stringent
measures must be taken to prevent it, else
Society in general would continue to suffer
in the hands of adulterators, who are minting
money playing with health of public at large
without taking care whether suffering
consumer would be an innocent child, a
pregnant lady, a patient in Hospital fighting
for his life or any such other needy person.
23. In the present case, the prosecution
has proved the case beyond doubt. Accused
has been found guilty of adulteration of milk.
Court below has already taken a lenient view
by imposing punishment of only six months'
rigorous imprisonment and fine of Rs. 1000/-
. Attempt to grant any indulgence in such a
matter, when the Court below has already
taken a lenient view in awarding punishment,
would be nothing but making mockery of
justice. Society had a confidence in the
system of justice and is waiting that persons
found guilty of committing henious crimes
are punished appropriately and suitably, even
if punishment is executed with lot of delay
since Society has no control over delay
occurring in Court but it has a faith in the
system of justice and, therefore, not deterred
from delay but is satisfied even when justice
comes highly belated, provided it is not
diluted and lean in favour of accused so as to
treat him like a victim ignoring the loss
suffered by actual victim.
24. Even otherwise, punishment
imposed by Court below after finding
charge proved beyond doubt is not to be
interfered lightly unless the Court finds
adequate and appropriate reason therefor.
25.
 In the matter of awarding
punishment multiple factors have to be
considered by this Court. The law regulates
social interests, arbitrates conflicting claims
3 All] Nathoo Vs. State of U.P.
1055
and demands. Security of individuals as well as
property of individuals is one of the essential
functions of the State. The administration of
criminal law justice is a mode to achieve this
goal. The inherent cardinal principle of criminal
administration of justice is that the punishment
imposed on an offender should be adequate so
as to serve the purpose of deterrence as well as
reformation. It should reflect the crime, the
offender has committed and should be
proportionate to the gravity of the offence.
Sentencing process should be sterned so as to
give a message to the offender as well as the
person like him roaming free in the society not
to indulge in criminal activities but also to give
a message to society that an offence if
committed, would not go unpunished. The
offender should be suitably punished so that
society also get a message that if something
wrong has been done, one will have to pay for
it in proper manner irrespective of time lag.
26. Further sentencing process should
be sterned but tampered with mercy whereever it is so warranted. How and in what
manner element of leniency shall prevail,
will depend upon multifarious reasons
including the facts and circumstances of
individual case, nature of crime, the matter in
which it was committed, whether preplanned
or otherwise, the motive, conduct, nature of
weapon used etc. But one cannot be lost
sight of the fact that undue sympathy to
impose inadequate sentence would do more
harm to justice system as it is bound to
undermine public confidence in the efficacy
of law. The society cannot long endure such
serious threats. It is duty of the court to give
adequate, proper and suitable sentence
having regard to various aspects, some of
which, are noticed above.
27. In Ahmed Hussein Vali
Mohammed Saiyed and another Vs. State
of Gujrat, 2009 (7) SCC 254, the Court
confirmed that:
"any liberal attitude by imposing
meager
sentences
or
taking
too
sympathetic view merely on account of
lapse of time in respect of such offences
will be result-wise counter productive in
the long run and against the interest of
society which needs to be cared for and
strengthened by string of deterrence
inbuilt
in
the
sentencing
system".
(Emphasis added)
28. In Jameel Vs. State of Uttar
Pradesh, 2010 (12) SCC 532, the Court
held that:
"It is the duty of every court to award
proper sentence having regard to the nature
of the offence and the manner in which it
was executed or committed. The sentencing
courts are expected to consider all relevant
facts and circumstances bearing on the
question of sentence and proceed to impose
a sentence commensurate with the gravity
of the offence."
29. In Guru Basavaraj @ Benne
Settapa Vs. State of Karnataka, 2012 (8)
SCC 734, the Court said that:
"The cry of the collective for justice,
which includes adequate punishment
cannot be lightly ignored."
30. In Gopal Singh Vs. State of
Uttarakhand, 2013 (3) JT 444, the court
said that:
"Just punishment is the collective cry
of the society. While the collective cry has
to be kept uppermost in the mind,
simultaneously
the
principle
of
1056
 INDIAN LAW REPORTS ALLAHABAD SERIES
proportionality between the crime and
punishment cannot be totally brushed
aside. The principle of just punishment is
the bedrock of sentencing in respect of a
criminal offence"
31. In Hazara Singh Vs. Raj Kumar
and another, 2013 (9) SCC 516, the Court
observed that:
"We
also
reiterate
that
undue
sympathy to impose inadequate sentence
would do more harm to the justice system
to undermine the public confidence in the
efficacy of law. It is the duty of every
court to award proper sentence having
regard to the nature of the offence and the
manner in which it was executed or
committed. The Court must not only keep
in view the rights of the victim of the
crime but also the society at large while
considering the imposition of appropriate
punishment". (Emphasis added)
32. The revisionist has not shown that
punishment, awarded by court below, is
unjust,
arbitrary
or
otherwise
illegal.
However, what it is trying to take advantage
is that the act of the Court should come to his
rescue inasmuch as it is this Court which has
taken two and half decades and more in
taking up this revision and this should come
to rescue of the revisionist for making
reduction in punishment drastically though
otherwise what has been done by the court
below cannot be said per-se illegal, unjust or
improper. It is well settled that the act of the
court prejudice none. The failure of this court
in taking up these matters within the
reasonable time should not become a hand to
the offender like present one to claim
reduction in the punishment as a matter of
right ignoring the fact that the society
requires that an offender should be punished
adequately and over the above the victim,
who has suffered, is waiting for its own
rights in having the offender punished
suitably, even if the system of justice takes a
long time. The delay in Courts cannot
become a factor to convert and accused as a
victim ignoring all the rights of the actual
victim, who has suffered, his family and the
society in shown. Moreover, when the
finding of guilty and punishment imposed by
the court below is not found erroneous in any
manner, I am of the view that such an order
of the courts below cannot be interfered in
exercise of revisional jurisdiction of this
Court.
33. 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 jurisdictions has to be
maintained.
34. Construing old Section 439 of
Criminal
Procedure
Code,
1898,
pertaining to revisional jurisdiction, the
Court in D. Stephens Vs. Nosibolla, AIR
1951 SC 196 said that revisional
jurisdiction under Section 439 of the Code
ought
not
to
be
exercised
lightly
particularly when it is invoked by private
complainant against an order of acquittal
which could have been appealed against
by the Government under Section 417. 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
3 All] Nathoo Vs. State of U.P.
1057
High Court cannot be invoked merely
because the lower court has taken a wrong
view of law or misappreciated the
evidence on record.
35. In K. Chinnaswamy Reddy Vs.
State of Andhra Pradesh, AIR 1962 SC
1788
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.
36. 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.).
37. 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 re-appreciate evidence for
determining
whether
the
concurrent
findings of fact reached by learned
Magistrate and Sessions Judge was
correct.
38. In Pathumma 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.
39. 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 casual 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
entirety do not constitute the offence for
which the accused has been charged."
40. In Ram Briksh Singh and others
Vs. Ambika Yadav and another, 2004(7)
SCC 665, in a matter again arising from
the judgment of acquittal, the revisional
power of High Court was examined and
the Court said:
"4. Sections 397 to 401 of the Code
are group of sections conferring higher
and superior courts a sort of supervisory
jurisdiction. These powers are required to
1058
 INDIAN LAW REPORTS ALLAHABAD SERIES
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
appeal but at the same time, it is the duty
of the court to correct manifest illegality
resulting in gross miscarriage of justice."
41. In view of above exposition of
law and considering the facts and
circumstances of this case, this Court
finds no merit in any of the submissions
advanced on behalf of revisionist.
42. The revision is, accordingly,
dismissed.
43. Interim order, if any, stands
vacated.
44. The revisionist Nathoo is on bail.
His bail bonds and surety bonds are
cancelled. The Chief Judicial Magistrate,
Varanasi shall cause him to be arrested and
lodged in jail to serve out the sentence passed
against him. The compliance shall be
reported at the earliest.
45. Certify this judgment to the
lower Court immediately.
--------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.09.2015
BEFORE
THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.
Criminal Revision Defective No. 335 of 2010
Smt. Rubina & Anr.
 ...Revisionists
Versus
State of U.P. & Anr.
...Opp. Parties
Counsel for the Revisionists:
Sri Ali Hasan, Sri O.P. Maurya
Counsel for the Opp. Parties:
A.G.A.
Cr.P.C.-Section 397/401-Criminal RevisionMagistrate
rejected
application
for
maintenance-on ground Civil Court decree
about restitution of Conjugal rights runningagainst applicant-proceeding u/s 125 Cr.P.C.-
not maintainable-as summoning Court can
not sit over regular court-Revision-dismissed.
Held: Para-5
The judgment and decree of competent
civil court has to be followed in any case.
As against it the proceeding under
section
125
CrPC
is
a
summary
proceeding which has no legal sanctity
against the judgment of formal decree of
competent civil court. Unless reversed or
set aside, the decree and findings of
competent civil court is binding on its
parties, irrespective of the pendency or
findings of any summary proceeding like
petition u/s 125 CrPC.
(Delivered by Hon'ble Pramod Kumar
Srivastava, J.)
1. This revision has been filed
against the order dated 21-10-2009 passed
by Principal Judge, Family Court, Jhansi,
in case no. 102/ 2006 Smt. Rubina &
another v. Mohd. Javed under section 125
Cr.P.C., p.s. Prem Nagar, Jhansi.
2. Admitted facts relating to this
revision are that wife (/revisionist Rubina)
had filed a petition u/s 125 CrPC with
averment that her husband had treated
with cruelty and deserted her without
sufficient reasons, therefore she should be
awarded maintenance u/s 125 CrPC.
Husband
(present
Respondent
No.-2
Mohd. Javed) had filed petition for
restitution of conjugal rights against his
wife (present revisionists) which was