# Paras Nath Yadav v. State of U.P. and others

- **Citation:** (2012) 1 ILRA 279
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-03-21
- **Bench:** Dinesh Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/paras-nath-yadav-v-state-of-u-p-and-others-42120
- **Pages:** 8

## Headnote

Criminal Revision-under section 397 and
401 against order if acquitted-Power of
High
Court
explained-very
limited
particularly where revision preferred by
private person-no Govt. appeal filed
against acquittal-no illegality, perversity
or
wrong
appreciation
of
evidence
found-NO occasion for interference with
finding of facts recorded by Trail Court
found-revision rejected.
280 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Held: Para 24

The sole ground raised by learned
counsel for the revisionist is regarding
absence of information of death of the
deceased to the complainant or his
family members, but the court relying
upon the defence evidence, gave a
categorical finding that the complainant
was informed and he and other family
members were present at the time of
cremation of the deceased. This finding
is based on appreciation of evidence and
there is no reason to discard this finding.
Thus, after going through the judgment
and entire record of the case, the court is
of the opinion that the findings recorded
by the learned trial Judge are based on
appreciation of evidence, there is no
manifest illegality or blatant irregularity
which lead to miscarriage of justice and
there is no occasion for this court to
interfere with the findings recorded by
the trial court.
Case law discussed:
(2010) 2 Supreme Court Cases (Criminal)
1002; 2002 Supreme Court Cases (Criminal)
1181; 2004 Supreme Court Cases (Criminal)
692; (2008) 2 Supreme Court Cases (Criminal)
89; AIR 1962 SC 1788; AIR 1951 SC 316

## Text

1 All] Paras Nath Yadav V. State of U.P. and others
279
change of her designation from the post of
Sweeper to post of 'Dai'.

12. After hearing learned counsel for
the parties we are of the opinion that
essential qualifications and procedures for
appointment on the post of Sweeper and
'Dai' are the same and what matter is that
the strength of the sanction post of 'Dai'
and Sweeper is distinct and separate.
Admittedly, also the petitioner has moved
an application for allowing her to work as
'Dai' but she has not moved any application
for changing her post from the post of
Sweeper on which she was initially
appointed and was working to the post of
'Dai'. She has also not made any request
for changing designation in her service
record in anticipation of her designation
being changed to the post of 'Dai' from the
post of Sweeper. No Rules or Regulations
or Government Orders provide for change
of designation in such matter for the simple
reason
that
sanction
strength
of
establishment consist of different posts and
if designation is changed according to the
whim of the authority, the sanction of post
would loose its importance for example if
the designation of the appellant is changed
as 'Dai' and an entry to this effect in her
service book is accordingly made, a post of
Sweeper would become vacant whereas
post of 'Dai' came into existence in excess
strength of post of 'Dai' sanctioned by the
Government. The appointments are strictly
adhered according to the sanctioned post.
Therefore, the Director General in his
order dated 21.8.2008 in this regard has
rightly observed that in absence of any
Rule or Regulation or Government Order
neither the post of designation can be
changed nor the service record could be
corrected by making any entry in this
regard. Once the order of the Director
General dated 21.8.2008 is upheld by us,
the consequential order dated 25.8.2008
passed
by
the
Chief
Medical
Superintendent (Female) Hospital at Agra
would also be upheld. The appellant has
utterly
failed
to
establish
that
her
designation could have been changed in
absence of any Rule or Regulation or
provisions or Government Orders. There is
no illegality or infirmity in the impugned
judgment and order, hence no interference
is required by this Court in it in this appeal.

13. For the reasons stated above, the
special appeal is accordingly, dismissed.
No order as to costs.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.03.2012

BEFORE
THE HON'BLE DINESH GUPTA,J.

Criminal Revision No. - 1758 of 2003

Paras Nath Yadav

 ...Petitioner
Versus
State of U.P. & others
 ...Respondents

Counsel for the Petitioner:
Sri D.S. Pandey

Counsel for the Respondent:
Sri Sudeep Dwivedi
Sri Kamal Krishna
Sri Faraj Fazami
A.G.A.

Criminal Revision-under section 397 and
401 against order if acquitted-Power of
High
Court
explained-very
limited
particularly where revision preferred by
private person-no Govt. appeal filed
against acquittal-no illegality, perversity
or
wrong
appreciation
of
evidence
found-NO occasion for interference with
finding of facts recorded by Trail Court
found-revision rejected.
280 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Held: Para 24

The sole ground raised by learned
counsel for the revisionist is regarding
absence of information of death of the
deceased to the complainant or his
family members, but the court relying
upon the defence evidence, gave a
categorical finding that the complainant
was informed and he and other family
members were present at the time of
cremation of the deceased. This finding
is based on appreciation of evidence and
there is no reason to discard this finding.
Thus, after going through the judgment
and entire record of the case, the court is
of the opinion that the findings recorded
by the learned trial Judge are based on
appreciation of evidence, there is no
manifest illegality or blatant irregularity
which lead to miscarriage of justice and
there is no occasion for this court to
interfere with the findings recorded by
the trial court.
Case law discussed:
(2010) 2 Supreme Court Cases (Criminal)
1002; 2002 Supreme Court Cases (Criminal)
1181; 2004 Supreme Court Cases (Criminal)
692; (2008) 2 Supreme Court Cases (Criminal)
89; AIR 1962 SC 1788; AIR 1951 SC 316

(Delivered by Hon'ble Dinesh Gupta,J. )

1. This revision is preferred against
the judgment and order dated 2.5.2003
passed by the Additional Sessions Judge
(Fast Track Court No.1), Jaunpur in
Sessions Trial No.88 of 1997 (State
Versus Subhash and others) acquitting the
accused opposite parties u/ss.498A, 304 B
and 201 I.P.C. and Sections 3/4 Dowry
Prohibition Act.

2. The prosecution case in brief is
that a First Information Report was
lodged by complainant Paras Nath Yadav
the revisionist on 1.3.1996 at Police
Station Machhli Shahar, District-Jaunpur
that the marriage of his daughter Pramila
Devi aged 22 years was performed in
May, 1990 and sufficient dowry was
given at the time of marriage. In April,
1993 his daughter went t"o her in law's
house and when she returned to her house
she told the complainant and other family
members that her husband and other inlaws have demanded motor cycle. The
complainant tried to persuade the accused
persons and sent his daughter to her inlaw's house. On 25.2.1996 one Awadhesh
Yadav who is related to accused Subhash
informed
the
complainant
that
his
daughter had expired and when the
complainant enquired he was informed by
some neighbours that his daughter had
expired after consuming some poisonous
substance and she was cremated without
any information to the complainant.

3. After investigation charge sheet
was submitted against accused opposite
parties no.2 to 4 who were committed to
the court of Sessions to face trial u/ss.
498A, 304 B and 201 I.P.C. and Sections
3/4 Dowry Prohibition Act. After framing
charges, the accused opposite parties were
tried and the evidence was recorded. The
son of the complainant was examined as
P.W.1, complainant was examined as
P.W.2, the Investigating Officer Hari
Shankar Yadav was examined as P.W.3
and constable Rajendra Prasad Dwivedi
was examined as P.W.4. In defence the
accused persons examined Awadhesh
Narayan Yadav as D.W.1 and Dr. Mansha
Ram Singh, Medical Officer of Primary
Health Centre, Baraipar, Machhli Shahar,
District- Jaunpur was examined as D.W.2
and also produced the marriage card of
the deceased and the papers relating to her
treatment.

4. After hearing learned counsel for
the parties, the learned Sessions Judge
1 All] Paras Nath Yadav V. State of U.P. and others
281
acquitted the accused persons from the
charges
levelled
against
them
vide
judgment and order dated 2.5.2003.

5. Feeling aggrieved with the
aforesaid
judgment
and
order,
the
complainant has preferred this revision.

6. At this stage, learned A.G.A.
informed the court that the State has not
filed any appeal against the order of
acquittal by the Sessions Judge. The
office
has
also
reported
that
no
Government Appeal has been filed
relating to the same case crime number.

7. Heard learned counsel for the
revisionist and the learned counsel
appearing for accused-opposite parties
no.2 to 4 as well as learned Additional
Government Advocate.

8.

Learned
counsel
for
the
revisionist submitted that the order dated
2.5.2003 passed by learned Additional
Sessions Judge is wholly illegal and
against the law and facts and is liable to
be set aside. The learned trial Judge has
mis-interpreted the evidence lead by
prosecution and wrongly relied upon false
and forged defence evidence.

9.

Learned
counsel
for
the
revisionist further submitted that the
complainant was not informed by the
accused persons regarding the death of his
daughter and she was cremated in absence
of the complainant or his family members
which clearly shows mala fide intention
of the accused persons and this fact was
established by the prosecution that
deceased was cremated without any
information to the complainant. The
prosecution has clearly established the
demand of dowry by the accused persons
and the deceased was subjected to cruelty
relating to demand of dowry but the trial
court has illegally and arbitrarily passed
the
impugned
judgment
without
considering this aspect of the matter.

10. Learned counsel for the accused
opposite
parties
submitted
that
the
prosecution and the complainant have
completely failed to establish their case
beyond reasonable doubt in order to bring
the case within the ambit of Section 304B of Indian Penal Code. For this the
prosecution has to establish that the death
of the deceased was caused within seven
years of the marriage; secondly the death
of a woman must have been caused by
burns or bodily injury or occurs otherwise
than in normal circumstances; thirdly
soon before her death the woman must
have been subjected to cruelty or
harassment by her husband or any relative
of her husband. Therefore, the cruelty
must be for or in connection with 'dowry
death'
and
it
is
only
when
the
aforementioned ingredients are made out
that such death can be called dowry death.
In the present case, the prosecution has
clearly failed to stablish that the death of
the woman had occurred within seven
years of her marriage; that the death was
not under normal circumstances; that
there was cruelty by the husband or his
family members before the death and that
such cruelty was in connection with
demand of dowry. Learned Sessions
Judge has given categorical finding on all
the aforesaid ingredients and has negated
the prosecution version.

11.

Learned
counsel
further
submitted that under the revisional power
the High Court has no jurisdiction to
interfere with the findings recorded by the
trial court or to re-appreciate the evidence
282 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
specially when the said jurisdiction was
invoked by a private complainant. He
further submitted that Section 401-B
Cr.P.C. clearly prohibits conversion of
finding of acquittal into one of conviction.
In support of his contention, he relied on
Sheetala Prasad and others vs. Sri Kant
and others (2010) 2 Supreme Court Cases
(Criminal) 1002, Jagannath Choudhary
and others vs. Ramayan Singh and
another 2002 Supreme Court Cases
(Criminal) 1181, Balijeet Singh and
another vs. State of Haryana 2004
Supreme Court Cases (Criminal) 692 and
Johar and others vs. Mangal Prasad and
another (2008) 2 Supreme Court Cases
(Criminal) 89.

12. Before entering into merits of
the revision the scope of interference by
the High Court in revision against an
order of acquittal is to be looked into.
Section 401 Cr.P.C. Deals with the
powers of the High Court in revision.

"401.
High
Court's
powers
of
revision - (1) In the case of any
proceedings 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) No order under this section shall
be made to the prejudice of the accused or
other person unless he has had an
opportunity
of
being
heard
either
personally or by pleader in his own
defence.

(3) Nothing in this section shall be
deemed to authorise a High Court to
convert a finding of acquittal into one of
conviction.

(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.

(5) Where under the Code an appeal
lies but an application for revision has
been made to the High Court by any
person and the High Court is satisfied
that such application was made under the
erroneous belief that no appeal lies
thereto and that it is necessary in the
interests of justice so to do, the High
Court may treat the application for
revision as a petition of appeal and deal
with the same accordingly".

13. In Jagannath Choudhary
(supra) the court while dealing with the
powers of the revisional court relied upon
earlier judgments of supreme court in
K.Chinnaswamy Reddy v. State of A.P.
AIR 1962 SC 1788 and D.Stephens v.
Nosibolla AIR 1951 SC 196 which clearly
formulates the extent of jurisdiction by
the revisional court.

14. In D. Stephens (supra) the apex
court observed as under:-

"The
revisional
jurisdiction
conferred on the High Court under S.439
of the Code of Criminal Procedure is not
to be lightly exercised when it is invoked
by a private complainant against an order
of
acquittal,
against
which
the
Government has a right of appeal under
S.417. It could be exercised only in
exceptional cases where the interests of
1 All] Paras Nath Yadav V. State of U.P. and others
283
public justice require interference for the
correction of a manifest illegality or the
prevention of a gross miscarriage of
justice. This jurisdiction is not ordinarily
invoked or used merely because the lower
Court has taken a wrong view of the law
or
misappreciated
the
evidence
on
record".

15. The apex court also relied upon
Logendranath Jha v. Polai Lal Biswas
AIR 1951 SC 316 in which the court
observed as below:-

"Though sub-s.(1) of S.439 of the
Criminal Procedure Code authorises the
High Court to exercise in its discretion
any of the powers conferred on a Court of
appeal by S.423, yet sub-s.(4) specifically
excludes the power to 'convert a finding of
acquittal into one of conviction'. This does
not mean that in dealing with a revision
petition by a private party against an
order of acquittal, the High Court can in
the absence of any error on a point of law
reappraise the evidence and reverse the
findings of facts on which the acquittal
was based, provided only it stops short of
finding the accused guilty and passing
sentence on him by ordering a re-trial". "

16. These two cases clearly law
down the limits of the jurisdiction of the
High Court to interfere with an order of
acquittal
in
revision.
In
particular
Logendranath Jha (supra) it was held that
it is not open to a High Court to convert a
finding of acquittal into one of conviction
in view of the provisions of Section
439(4) Cr.P.C. and that the High Court
cannot do this even indirectly by ordering
retrial.

17. The court further held that it is
true that it is open to a High Court in
revision to set aside an order of acquittal
even at the instance of private persons,
though the State may not have thought fit
to appeal, but this jurisdiction should be
exercised by the High Court only in
exceptional cases specially when there is
some glaring defect in the procedure or
there is a manifest error on a point of law
and consequently there has been a flagrant
miscarriage of justice. Sub section(4) of
Section 439 Cr.P.C. forbids a High Court
from converting a finding of acquittal into
one of conviction.

18. Thus, relying on the decisions of
Logendranath Jha, D. Stephens and
Chinnaswamy Reddy (supra) the apex
court in Jagannath Choudhary (supra)
held in para 10 as under-

"10.While it is true and now wellsettled in a long catena of cases that
exercise of power under Section 401
cannot but be ascribed to be discretionary
- this discretion, however, as is popularly
informed has to be a judicious exercise of
discretion and not an arbitrary one.
Judicial discretion cannot but be a
discretion which stands "informed by
tradition, methodised by analogy and
disciplined by system" - resultantly only
in the event of a glaring defect in the
procedural aspect or there being a
manifest error on a point of law and thus
a flagrant miscarriage of justice, exercise
of revisional jurisdiction under this
statute ought not to be called for. It is not
to be lightly exercised but only in
exceptional situations where the justice
delivery system requires interference for
correction of a manifest illegality or
prevention of a gross miscarriage of
justice. In Nosibolla : Logendranath Jha
and Chinnaswamy Reddy (supra) as also
in Thakur Das (Thakur Das (Dead) by
284 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
LRs v. State of Madhya Pradesh and Anr.,
1978 (1) SCC 27) this Court with utmost
clarity and in no uncertain terms
recorded the same. It is not an appellate
forum wherein scrutiny of evidence is
possible;
neither
the
revisional
jurisdiction is open for being exercised
simply by reason of the factum of another
view being otherwise possible. It is
restrictive in its application though in the
event of there being a failure of justice
there can said to be no limitation as
regards the applicability of the revisional
power."

19. In Sheetala Prasad and others
(supra) the apex court in held as under:-

"12. This Court has heard the
learned counsel for the parties at length
and considered the evidence forming part
of the record.

13. The High Court was exercising
the revisional jurisdiction at the instance
of a private complainant and, therefore, it
is necessary to notice the principles on
which such revisional jurisdiction can be
exercised. Sub-section (3) of Section 401
of Code of Criminal Procedure prohibits
conversion of a finding of acquittal into
one of conviction. Without making the
categories
exhaustive,
revisional
jurisdiction can be exercised by the High
Court
at
the
instance
of
private
complainant (1) where the trial Court has
wrongly shut out evidence which the
prosecution wished to produce, (2) where
the admissible evidence is wrongly
brushed aside as inadmissible, (3) where
the trial Court has no jurisdiction to try
the case and has still acquitted the
accused, (4) where the material evidence
has been overlooked either by the trial
Court or the appellate Court or the order
is passed by considering irrelevant
evidence and (5) where the acquittal is
based on the compounding of the offence
which is invalid under the law. By now, it
is
well
settled
that
the
revisional
jurisdiction, when invoked by a private
complainant against an order of acquittal,
cannot be exercised lightly and that it can
be exercised only in exceptional cases
where the interest of public justice require
interference for correction of manifest
illegality or the prevention of gross
miscarriage of justice. In these cases, or
cases of similar nature, retrial or
rehearing of the appeal may be ordered."

20. In Johar and others (supra) the
apex court observed that the State did not
prefer any appeal against the judgment of
the trial Judge. The revisional jurisdiction
of the High Court in terms of Section 397
read with Section 401 Cr.P.C. is limited.
The High Court did not point out any
error of law on the part of learned trial
Judge. It was not opined that any relevant
evidence has been left out of its
consideration or irrelevant material has
been taken into consideration. The High
Court not only entered into the merit of
the
matter
but
also
analysed
the
depositions of all the witnesses. It sought
to re appreciate the whole evidence. One
possible view was sought to be substituted
by another possible view. In this case the
apex court also relied on Logendranath
Jha and D. Stephens (supra).

21. From the above discussion, it is
clear that the High Court has very limited
revisional power particularly in the cases
of revision by a private person against
order of acquittal and in such cases where
the State has not filed any appeal against
the order of learned Sessions Judge. Now
in the light of the above legal proposition
1 All] Paras Nath Yadav V. State of U.P. and others
285
the court has to see whether the judgment
of the learned trial Judge suffers from any
manifest illegality or gross miscarriage of
justice. The learned Sessions Judge while
dealing with the facts of the case gave a
categorical finding that the death of the
woman had not occurred within seven
years of her marriage. This finding is
based on the evidence lead by the
defence. Initially the prosecution had not
produced any evidence in respect of the
date of marriage of the deceased and the
accused. On the contrary, the defence
produced the witness of marriage who
was a middle man in the marriage. The
witness also produced the marriage card
which established that the marriage of the
deceased with the accused was in fact
performed on 16.05.1986 and relying on
evidence of the defence the learned
Sessions Judge has given a categorical
finding that the death of the deceased had
not occurred within seven years of
marriage. This finding does not suffer
from any illegality or there is wrong
appreciation of evidence. It was the duty
of the prosecution to rebut the evidence
lead by the defence if they really wanted
to controvert the evidence lead by the
accused persons. But inspite of it they
have not produced any evidence in
rebuttal.

22. Insofar as the finding in respect
of death of the deceased is concerned, the
defence has examined the doctor who
treated the deceased before her death and
also filed the papers regarding treatment.
The prosecution again failed to rebut the
evidence lead by the accused persons and
the learned Sessions Judge relying upon
the evidence rightly gave a finding that
the death of the deceased was not caused
in abnormal circumstances.

23. In respect of demand of dowry,
cruelty and harassment the court also
came
to
the
conclusion
that
the
prosecution has not been able to prove the
demand of dowry, harassment or cruelty
towards the deceased. This finding is also
based on appreciation of evidence lead by
the prosecution. There is no misappreciation of evidence nor any evidence
has been left to be considered by the trial
Judge.

24. The sole ground raised by
learned counsel for the revisionist is
regarding absence of information of death
of the deceased to the complainant or his
family members, but the court relying
upon the defence evidence, gave a
categorical finding that the complainant
was informed and he and other family
members were present at the time of
cremation of the deceased. This finding is
based on appreciation of evidence and
there is no reason to discard this finding.
Thus, after going through the judgment
and entire record of the case, the court is
of the opinion that the findings recorded
by the learned trial Judge are based on
appreciation of evidence, there is no
manifest illegality or blatant irregularity
which lead to miscarriage of justice and
there is no occasion for this court to
interfere with the findings recorded by the
trial court.

25. In view of the above discussions,
the revision has no merits and it is
accordingly dismissed.
--------
286 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.02.2012

BEFORE
THE HON'BLE SATYA POOT MEHROTRA, J.
THE HON'BLE ASHOK PAL SINGH, J.

First Appeal From Order No. 3074 of 2011

The New India Assurance Company Ltd.

 ...Petitioner
Versus
Om Babu @ Hari Babu and others

 ...Respondents

Counsel for the Petitioner:
Sri Saurabh Srivastava

Counsel; for the Respondents:
..........................

Motor Vehicle Act 1988-Section 173Accident
Claim
Tribunal-directioninsurance company to pay entire amount
of compensation to the claimants with
liberty to recover from vehicle owner-in
view of law laid down by Apex Courtwarrant
no
interference-seeking
direction to protect interest by Tribunalin case owner fails to pay-same can be
raised before execution court itselfhowever if appeal filed by claimant or by
vehicle owner-liberty given to Insurance
Company to contest the same.

Held: Para 38, 39 and 40

In view of the above discussion, we are
of the opinion that the Tribunal did not
commit any illegality in directing the
Appellant-Insurance Company to make
deposit of the amount of compensation,
and recover the same from the insured
person i.e. the owner of the vehicle in
question-respondent no. 2 herein.

After making deposit of the amount
awarded under the impugned award, it
will be open to the Appellant-Insurance
Company
to
initiate
appropriate
proceedings for recovery of the amount
from the owner of the aforesaid vehicle
in question (respondent no. 2 herein),
and seek appropriate directions in such
proceedings.

It is made clear that in case any appeal
is filed by the claimant-respondent no. 1
or by the owner of the aforesaid vehicle
in question (respondent no. 2 herein), it
will be open to the Appellant-Insurance
Company to contest the same on the
grounds legally open to the AppellantInsurance Company.
Case law discussed:
2004 (2) TAC 12 (SC); 2005 (1) TAC 4 (SC);
AIR 1998 SC 588; 2004 (3) SCC 297: 2004 (1)
T.A.C.321:AIR 2004 SC 1531; (2007) 3 S.C.C.
700:
2007(2)
TAC
398
(SC);
2008(1)
T.A.C.803 (SC); 2004(3) SCC 297: 2004 (1)
T.A.C. 321: AIR 2004 SC 1531; 2007 (2)
T.A.C. 398 (S.C.); 2008 (1) T.A.C. 803 (S.C.)
2004 (2) T.A.C. 12 (SC); 2005 (1) T.A.C. 4
(SC); 2007 (1) T.A.C. 20 (All.); 2009 (1)
A.W.C. 355

(Delivered by Hon'ble S.P. Mehrotra, J.)

1. The present Appeal has been filed
under Section 173 of the Motor Vehicles
Act, 1988, against the Judgment and
Order/Award dated 27.5.2011 passed by
the Motor Accidents Claims Tribunal,
Auraiya in Motor Accident Claim Case
No.65 of 2004 filed by the claimantrespondent no.1 on account of the injuries
sustained by him in an accident which took
place on 18.12.2003 at about 1.30 P.M.

2. The case set-up in the Claim
Petition was that on 18.12.2003, the
claimant-respondent no.1 was going on a
Tempo bearing Registration No. UP 75 B
9104 (hereinafter also referred to as "the
vehicle in question") from Auraiya to
Bhikhaipur; and that at about 1.30 P.M.,
when the vehicle in question (Tempo)
reached near Jalaun Crossing, it overturned
on account of rash and negligent driving