# Revisionists v. State of U.P

- **Citation:** (2013) 1 ILRA 150
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-02-07
- **Bench:** Visnhu Chandra Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/revisionists-v-state-of-u-p-42474
- **Pages:** 4

## Headnote

Criminal Procedure Code-397/401-order
of re-trail by Appellate Court-conviction
without trail-not sustainable-if Appellate
Court found that appellant was not triedno charge sheet framed-judgment of
Trail Court can be modified-but direction
to
re-write
judgment-held-appellate
Court committed manifest error of lawrevision
allowed-order
of
re-writing
judgment quashed.

Held: Para-9

So far trial of Israil is concerned it is
evident from the record of the case that
he was not tried, no charge has been
framed against him because his trial was
separated.
Therefore,
recording
of
conviction against him by the Trial Court
can be rectified by the Appellate Court
and for that the remand of the matter
was not at all necessary.
Case Law discussed:
AIR 1963 (SC) 1531; 1961 (1) Crl.L.J. 398

## Text

150 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

27. All the Sessions Judges and the
Assistant Sessions Judges are directed to
adhere strictly to the above provisions and
instructions while granting adjournment
in Sessions Cases."

28. We would also like some more
effective circular to be issued highlighting
the directions in this case and the
directions of the Apex Court and the
provisions of section 309 of the Code as
amended from time to time, and the said
circular should not simply contain vague
and diffuse terms to the effect that the
provisions of section 309 of the Code, or
that the decisions of this Court as well as
Apex Court may be complied with.

29. We would like the presence of
the Registrar General on the next
listing to inform the Court that a
proper circular has been issued and to
produce the same before this Court,
and to give feedback on our suggestion
made above that papers required under
section 207 Cr.P.C. be prepared by the
police and how the impediments on the
police preparing the said papers be
overcome.

30. We would also like to have
feedback from the District Judges
regarding the extent to which compliance
is being made by the trial Courts with the
provisions of section 309 Cr.P.C as also
the directions of the Apex Court and this
Court and the impediments, if any for
ensuring compliance of the aforesaid
legislative mandate

31. List this case on 08.03.2013.

32. Interim order shall continue till
the next date of listing.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.02.2013

BEFORE
THE HON'BLE VISNHU CHANDRA
GUPTA,J.

Criminal Revision 123 of 2012

Irfan Amhad, S/O Late Shah Mohammad
and others

 ...Revisionists
Versus
State of U.P.
 ...Opposite Party

Counsel for the Petitioner:
Mohd. Abdul Rafey Siddiqui, Advocate
Mohd. Rehan Ahmad Siddiqui, Advocate

Counsel for the Respondents:
Govt. Advocate,

Criminal Procedure Code-397/401-order
of re-trail by Appellate Court-conviction
without trail-not sustainable-if Appellate
Court found that appellant was not triedno charge sheet framed-judgment of
Trail Court can be modified-but direction
to
re-write
judgment-held-appellate
Court committed manifest error of lawrevision
allowed-order
of
re-writing
judgment quashed.

Held: Para-9

So far trial of Israil is concerned it is
evident from the record of the case that
he was not tried, no charge has been
framed against him because his trial was
separated.
Therefore,
recording
of
conviction against him by the Trial Court
can be rectified by the Appellate Court
and for that the remand of the matter
was not at all necessary.
Case Law discussed:
AIR 1963 (SC) 1531; 1961 (1) Crl.L.J. 398

(Delivered by Hon'ble Visnhu Chandra
Gupta, J.)
1 All] Irfan Amhad S/O Late Shah Mohammad and others Vs. State of U.P.
151

J U D G M E NT

1. In this revision u/s 397/401 of
Criminal Procedure Code (for short
'Cr.P.C.') revisionists have prayed to set
aside the impugned direction issued to
learned Magistrate concerned to pass
fresh judgment in pursuance of order
passed by the learned Appellate Court
vide its judgment and order dated 23-32012.

2. The brief facts of this case for
deciding the revision are that Irfan
Ahmad, Mohammad Israil, Smt. Anwari,
Mohd. Islam, Km. Ruqaiya and Habib
were accused persons in Criminal Case
No. 2924 of 2009, arising out of case
Crime No. C-10 of 2003. After trial of the
aforesaid
case
these
persons
were
convicted u/s 498A of Indian Penal Code
(for short 'IPC') with simple imprisonment
of 2 years and a fine of Rs. 1,000/- each.
These persons were also convicted under
section 3 of Dowry Prohibition Act and
sentenced with simple imprisonment of
one year each. In case of default of
payment of fine, these accused persons
were directed to undergo a further
imprisonment
of
one
month.
The
judgment passed by Ist Addl. Chief
Judicial Magistrate, Gonda convicting and
sentencing the revisionists was challenged
in appeal before the Court of Sessions.
Out of six only five persons challenged
the conviction and sentence awarded
against them by preferring the appeal
having Criminal Appeal No. 24 of 2011.
The name of appellants are Irfan Ahmad,
Mohammad Islam, Smt. Anwari, Km.
Ruqaiya and Habib. It appears from
perusal of the order of Appellate Court
that Habib died during the pendency of
appeal and the case stand abated against
him. However, it appears that Mohd.
Israil did not prefer any appeal. The
Appellate
Court
considered
the
submissions of both the side and allowed
the
appeal
after
setting
aside
the
judgement dated 11.3.2011. The matter
was remanded back to decide the case in
the light of the direction issued by the
Appellate Court after giving opportunity
of hearing to accused persons and
prosecution.

3. From perusal of the impugned
order of the Appellate Court it appears
that accused Israil did not face trial but
the learned Magistrate passed the order of
conviction against Israil also. It was
further observed by the Appellate Court
that the charge for the offence u/s 323
I.P.C.was also framed against the accused
persons but no finding had been recorded
regarding acquittal or conviction of the
accused persons u/s 323 I.P.C. It was
further observed in respect of the accused
Israil that during trial he absconded and
his file was separated, consequently
charges were not framed against Israil.
Therefore, the learned Trial Court has
committed an error convicting Israil
without trial and his conviction cannot
sustain. Consequently, without going into
the merit of the case or making any
comment on merit the Appellate Court
straight way sent back the matter after
setting aside the judgment of the Trial
Court and directed to pass an appropriate
order after giving opportunity of hearing
to both the sides.

4.

Learned
counsel
for
the
revisionist
after
relying
upon
the
judgment of Hon'ble Apex Court reported
in AIR 1963 (SC) 1531 (Ukha Kolhe Vs.
State of Maharashtra) submitted that
order of retrial to fill-up the lacuna by
152 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
means of taking additional evidence
would not be proper and on this strength it
has been submitted that the order of
remand is not sustainable.

5. After relying upon the judgment
of Mysore High Court reported in 1961(1)
Crl.L.J. 398 (State Vs. Ranganagouda
Venkanagourda Thimmanagpudar ),
the learned A.G.A.pointed out that the
retrial is permissible not only from the
point of time at which the error in trial has
been committed. It can even proceed from
earlier stage in a particular case.

6. I have considered the submission
of both the side and the authorities relied
upon by the parties and also perused the
material available on record.

7. From perusal of the order under
challenged it reveals that the Appellate
Court directed the Trial Court to record
the finding in regard to the charge framed
under section 323 I.P.C. The appellate
Court also asked the Trial Court that
when Israil was not tried by the court how
the
conviction
was
recorded
and
therefore, the Appellate Court after setting
aside
the
entire
judgment
without
touching the merit of the case sent back
the matter for deciding the matter on the
basis of the existing evidence.

8. If the Appellate Court was of the
view that no finding has been recorded by
the Trial Court for charge u/s 323 I.P.C.,
he may pass an order directing the trial
court to give its finding on charge framed
u/s 323 I.P.C. keeping the appeal pending
in its court and after receipt of the finding
given by the Trial Court, the appeal as a
whole may be decided.

9. So far trial of Israil is concerned it
is evident from the record of the case that
he was not tried, no charge has been
framed against him because his trial was
separated.
Therefore,
recording
of
conviction against him by the Trial Court
can be rectified by the Appellate Court
and for that the remand of the matter was
not at all necessary.

10. Section 386 of the Criminal
Procedure Code gives ample power to
Appellate Court to make any amendment
or pass any consequential or incidental
order that may be just and proper because,
clause (e) of Section 386 applies in all the
cases provided in Clause (a)(b)(c) and (d),
i,e., when Appellate Court dealing with
appeal against an order for acquittal or
considering the appeal from conviction or
dealing an appeal for enhancement of
sentence or in any appeal from any other
order.

11. In view of aforesaid legal aspect
of the matter this court is of the view that
Appellate Court has committed manifest
error of law while setting aside the
finding of conviction without going
through the merit of the case and in
directing the Trial Court to re-write the
Judgment. In such situation this court is of
the view that if the Trial Court has not
given any finding in respect of the charge
framed u/s 323 I.P.C. the Appellate Court
may sent back the record of the Trial
Court to give a finding in respect of guilt
or of innocence of the accused, as the case
may be, on the basis of material available
on record and after receipt of the finding
of the Trial Court u/s 323 I.P.C. the
Appellate Court should decide the whole
appeal after considering the merit of the
case.
1 All] Shiv Swaroop Trivedi S/O Late Deen Dayal Trivedi Vs. State of U.P.& Ors.
153

12. So far as conviction of Irfan is
concerned the Appellate Court was ample
power to set aside that portion of the
judgment by which the conviction of Irfan
was recorded without trial.

13. Consequentially, the revision is
allowed. Impugned order dated 23.3.2012
passed by Special Judge, EC Act, Gonda
in Criminal Appeal No. 24 of 2011 (by
which judgment of Trial Court dated
10.03.2011 passed by Addl Chief Judicial
Magistrate, Ist, Gonda in Crl. Case No.
2924 of 2009 was set aside) is set aside.
The matter is remanded back to the
Appellate Court with direction to restore
the Appeal on its own number. After reregistering the appeal on its own number
the appellate court shall send back the
record to the Trial Court to record the
finding in respect of charge framed
against accused persons under section 323
I.P.C. The Trial Court shall send back the
record with finding recorded in respect of
charge u/s 323 I.P.C. to the Appellate
Court. After receipt of the finding
recorded by the Trial Court, the Appellate
Court shall decide the Appeal on merit
after giving opportunity of being heard to
accused persons and prosecution.

14. The appellants shall remain on
bail during pendency of appeal in terms of
the order earlier passed. If bonds are
cancelled the appellants may file the
bonds as per order of the appellate court.

15. The appellants / accused shall
appear in person before appellate court on
6th of March, 2013.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.02.2013

BEFORE
THE HON'BLE ANIL KUMAR, J.

SERVICE SINGLE No. - 124 of 2010

Shiv Swaroop Trivedi S/O Late Deen
Dayal Trivedi

 ...Petitioner
Versus
State Of U.P. Thru Secy. Gramya Vikas &
Ors.

 ...Respondents

Counsel for the Petitioner:
Sri A.P. Singh Vatsa
Sri Vashu Deo Mishra
Sri Vinod Kumar Verma

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Article
226recovery of excess amount -paid in
particular pay scale after completing 40
years of service-after retirement-it was
noticed that petitioner can not be given
the salary in that pay scale-no allegation
of fraud or misrepresentation-or being
instrumental in getting that pay scaleheld-can
not
be
recovered
without
affording opportunity of hearing.

Held: Para-38

 In the present case, promotional scale
has been given to the petitioner in
pursuance to the Government Order
dated
11.8.1983
by
his
employer
voluntary in bona fide manner without
there being any element of fraud on his
part subsequently cannot be recovered
from him when he is retired from service
after
attaining
the
age
of
superannuation on the ground that same
has wrongly been given to him by the
employer because his case comes within
the ambit and scope of the category of
those employee from whom if the excess
amount paid cannot be recovered as
mentioned in the case of Chandi Prasad
Uniyal (supra).
Case Law discussed:
2012 (3) LBESR 692 (SC); (1994) 2 SCC 521;
1995 (1) LBESR 206 (SC) ; (2006) 11 SCC