# Rajkumar Prabhakar & Ors v. State Of U.P. & Anr

- **Citation:** (2016) 8 ILRA 810
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-05
- **Bench:** Pramod Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajkumar-prabhakar-ors-v-state-of-u-p-anr-44273
- **Pages:** 4

## Text

810 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 810
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.08.2016

BEFORE

THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Application U/S 482 No.- 23676 Of 2016

Rajkumar Prabhakar & Ors. ...Applicants
Versus
State Of U.P. & Anr. ...Opposite Parties

Counsel for Applicants:
Ashish Pandey, Satya Prakash Rathor

Counsel for Opposite Parties:
G.A.

.................................
Revisional Jurisdiction - Section 397 Cr.P.C. - Scope and Limits - Not Akin to Appellate Scrutiny
of Evidence -- Application under Section 482 Cr.P.C. preferred against the judgment dated 23.7.2016 of the
Additional Sessions Judge (F.T.C.), Mahoba, in Criminal Revision No. 41/2015, whereby the order dated
22.5.2015 passed by the C.J.M., Mahoba, dismissing the complaint under Section 203 Cr.P.C. was quashed
and the matter remanded for fresh orders in light of the revisional court's observations - Held: Revisional
jurisdiction is confined to examining the correctness, legality or propriety of a finding, sentence or order, and
the regularity of proceedings of the subordinate court; it is not an appeal permitting scrutiny/re-appreciation
of evidence, nor can it be exercised merely because another view is possible (relying on Jagannath Choudhary
& Ors. vs. Ramayan Singh & Another, AIR 2002 SC 2229) - Where factual appreciation is involved,
interference is permissible only in the class of cases resulting in a perverse finding, and only to ensure that
justice is done and there is no abuse of power, a mere apprehension or suspicion being insufficient (relying on
Amit Kapoor vs. Ramesh Chander, (2012) 9 SCC 460).

Complaint Case - Dismissal Under Section 203 Cr.P.C. - Successive Remands by Revisional Court
on Factual Observations -- Investigation, statements of the victim before the police and the Sub-Divisional
Magistrate, and the final report disclosed no prima facie commission of any offence by the applicants, who
were not named as accused; complaint case initiated on a protest petition was twice dismissed under Section
203 Cr.P.C. by the Magistrate, and on both occasions the revisional court remanded the matter with
observations touching upon facts rather than points of law - Held: Such repeated remand accompanied by
factual observations and directions is impermissible, since it places the Magistrate under practical pressure to
pass an order in conformity with the revisional court's view of the facts merely to avoid further remand,
thereby prejudicing the legal rights of the persons sought to be proceeded against - As a rule, revisional
courts should refrain from recording findings, observations or directions on facts or on the merits of a
complaint case while exercising jurisdiction under Section 397 Cr.P.C.

Effect of Order in Revision - Not a Finding on Merits - Magistrate to Independently Apply Judicial
Mind -- Held: Allowing or dismissal of a revision by the revisional court is not to be treated as a finding
against or in favour of the findings recorded by the Magistrate's court, since orders in revisional jurisdiction
8 All. Rajkumar Prabhakar & Ors. Vs State Of U.P. & Anr.
811
are passed on procedural and technical considerations and not as adjudication on facts - The Magistrate is
expected to independently appreciate the evidence on record together with the relevant legal points
concerning production of evidence, and thereafter pass an appropriate order on the question of
cognizance/summoning by application of his own judicial mind, uninfluenced by any factual observation made
by the revisional court.
Disposed off.

Case Law Discussed
1. Jagannath Choudhary & Ors. vs. Ramayan Singh & Another AIR 2002 SC 2229
2. Amit Kapoor vs. Ramesh Chander (2012) 9 SCC 460

(Delivered by Hon'ble Pramod Kumar Srivastava, J.)

1. Present revision has been preferred against the judgment dated 23.7.2016 passed by the Court of
Additional Sessions Judge (F.T.C.), Mahoba in Criminal Revision no. 41/2015, by which order dated 22.5.2015
passed by C.J.M., Mahoba dismissing the complaint under section 203 CrPC was quashed and matter was
remanded for fresh orders in light of observations made in the judgment of revisional court.

2. Heard learned counsel for the applicants, learned AGA and perused the records.

3. The contention of learned counsel for the applicants was that during investigation, no overt act
appeared to have been committed by any person. Even in the statement of victim before police and SubDivisional Magistrate when victim had given statement which revealed that no offence was committed. In this
case after investigation, final report was submitted. But due to protest petition, complaint case has been initiated,
in which Magistrate had dismissed the complaint under section 203 CrPC twice, and both the times revisional
courts had remanded the matter with certain observations. Learned counsel for the applicants further contended
that if such matter is regularly remanded again and again, with factual observations, by interference in findings
of facts, then on any occasion, under pressure of order of remand, any Magistrate will pass any order against
applicants in light of observation made by revisional court, which will prejudice the legal rights of applicants.
Therefore in interest the order should be passed by this Court to finalize the matter.

4. These arguments were refuted by learned AGA, who submitted that victim had not stated name of
any accused before police and before the Magistrate, and she had not stated anything about commission of any
offence, and informed that due to dissatisfaction from informant she had left her home suo motu and gone alone,
so after investigation final report was submitted. But informant had filed protest petition and complaint case,
over which police has no control. His further submission was that till now no offence appears to have been
committed by any accused and any applicant is not accused in any case, therefore, they have no right to interfere
in any proceedings.

5. This is a fact that from evidences, earlier executive Magistrate, and after investigation the
Investigating Officer, and later on the trial court have found that no prima facie case of commission of offence is
made out, and therefore the orders under 203 CrPC were passed. But those orders were quashed and matter was
remanded with certain observations by revisional courts. The observations of lower revisional court in
impugned order are more on facts with directions than on legal points.
812 INDIAN LAW REPORTS ALLAHABAD SERIES

6. In Jagannath Choudhary & ors v. Ramayan Singh & another AIR 2002 S.C. 2229 the Apex
Court had held that:

"Where the court concerned does not appear to have committed any illegality or material
irregularity or impropriety in passing the impugned judgment and order, the revision cannot succeed. If the
impugned order apparently is presentable, without any such infirmity which may render it completely perverse
or unacceptable and when there is no failure of justice, interference cannot be had in exercise of revisional
jurisdiction".

"It is not an appeal wherein scruitiny 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."

7. In Amit Kapoor v. Ramesh Chander (2012) 9 SCC 460 the Apex Court had observed:

"Normally, a revisional jurisdiction should be exercised on a question of law. However, when
factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding.
Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the
court. Merely an apprehension or suspicion of the same would not be a sufficient ground for interference in
such cases."

8. This legal position is settled that at the time of passing the order on point of cognizance/summoning,
the Magistrate has to consider facts in accordance with law and has to pass appropriate order by application of
his own judicial mind. The revision is admitted by superior court only of supervising and considering and for the
purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, recorded
or passed, and as to the regularity of any proceedings of such subordinate/inferior Court. Any other observation
or direction, including on the point of fact or on point of manner of consideration of evidence by revisional
court, under section 397 CrPC, is erroneous and illegal. Revision is not an appeal wherein scruitiny of evidence
is possible like trial of appellate court. As a rule the revisional courts should generally refrain from giving
findings, observations or directions on facts or on merits of the case.

9. It is also clarified that allowing of revision by lower revisional court or dismissal of revision shall not
be taken as finding against findings of Magistrate Court. The order of revisional court shall not be considered as
basis of giving finding of fact, because the orders in revisional jurisdiction are passed on procedural and
technical reasons. Learned Magistrate is expected to appreciate the evidences adduced and also other legal
points regarding production of evidences, and then he is expected to pass order on point of summoning.

10. In view of above, in present matter, the trial court is directed to appreciate the facts of the matter
before it and then pass appropriate order without being influenced by any observation of revisional court on any
fact of the case. With these observations, this application stands disposed of.
-----------
8 All. Ashwani Kumar & Anr. Vs State Of U.P.
813
(2016) 8 ILRA 813
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.08.2016

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Criminal Appeal No.- 7096 Of 2009
&
Criminal Appeal No.- 7150 Of 2009

Ashwani Kumar & Anr. ...Appellants
Versus
State Of U.P. ...Respondent

Counsel for Appellants/Petitioner :- Dr. Akhilesh Kumar Sharma, P.K. Singh, Ramesh Pundir, Smt. Rekha
Pundir (in Appeal No. 7096 of 2009); Dr. Akhilesh Kumar Sharma, Amit Misra (in Appeal No. 7150 of 2009)

Counsel for Respondents :- Govt. Advocate; Sri Saghir Ahmad, Sri J.K. Upadhya, Km. Meena, learned
A.G.A., assisted by Syed Hasan Shaukat Abidi and Sri Irfan Chaudhary, State Brief Holders

Murder - Circumstantial Evidence - Last Seen Together Theory -- Deceased Ramesh, who had
developed an illicit relationship with his sister-in-law accused-appellant Lata after his wife's death, was taken
away from his house at about 5 P.M. by accused-appellants Rajkumar and Lata to their adjoining house
ostensibly to settle a monetary dispute - Within a few minutes he was found strangulated to death in their
house - Held: Once the last seen theory comes into play, the onus shifts upon the accused to explain what
happened to the deceased thereafter; the facts relating to the manner of death being within their special
knowledge - Reasonable proximity of time between last seen alive and discovery of death fully established -
Accused-appellants Rajkumar and Lata having furnished no explanation, guilt held established beyond doubt
[Paras 32-34, 41]
Plea of Alibi - Burden on Accused - Documentary and Oral Evidence Found Unreliable -- Accusedappellant Rajkumar claimed to have been present at a tractor service camp 22 km away between 10:30 A.M.
and 6:00 P.M., relying on attendance register and job cards (Exts. Kha1 to Kha7) and testimony of DW1 and
DW4 - Documents found unsigned by the accused, containing overwriting and no countersignature of any
senior/junior officer - DW4 did not depose that the accused remained present throughout the day - Accusedappellant Lata's plea that she was at a neighbour's house (DW3 Jaipal) between 3:30 P.M. and 4:30 P.M. did
not exclude her presence at the time of occurrence (5 P.M.), and the version of DW2 (her daughter) stood
self-contradictory - Held: Plea of alibi set up by both accused-appellants Rajkumar and Lata not established;
onus to prove alibi lies squarely on the accused and was not discharged. [Paras 22-31]
Interested/Related Witnesses - Credibility Not Diminished Merely on Ground of Relationship --
Witnesses of fact (PW1, PW2, PW7) being close relatives of the deceased and complainant, subjected to
searching cross-examination without any material contradiction elicited - Held: Mere relationship or interest
does not render testimony untrustworthy where it is consistent, natural and withstands cross-examination
[Paras 35-38]
Motive - Failure to Prove Motive - Effect Differs as Between Sets of Accused -- Prosecution's
theory that accused-appellants Ashwani Kumar and Meenu@Meenakshi had usurped a portion of a bank loan
sanctioned in favour of the deceased, precipitating the murder, stood completely falsified by the testimony of