# Smt. Mamta Shukla Revisionist v. State of U.P. & Ors

- **Citation:** (2024) 1 ILRA 1089
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-22
- **Case number:** Criminal Revision No. 561 of 1996
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-mamta-shukla-revisionist-v-state-of-u-p-ors-50829
- **Pages:** 8

## Headnote

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision , Section 372 - No appeal to lie
unless otherwise provided, Section 378 -
Appeal in case of acquittal , Right to
appeal is a substantive right and it is not a
mere matter of procedure - If a judgment
of acquittal had been passed on or after
31.12.2009 only then an appeal can be
preferred otherwise only a revision can be
preferred in case of a judgment and order
of acquittal. (Para - 10,11,15)
Offence
committed
before
31.12.2009
-
acquittal order passed on 07.03.1996 - Accused
persons acquitted - aggrieved - informant
preferred
criminal
revision
under
Section
397/401 CrPC on 15.04.1996 - revisionist moved
an application on 04.12.2019 - to convert
revision into criminal appeal under Section 372
1090 INDIAN LAW REPORTS ALLAHABAD SERIES
CrPC - amendment in Code of Criminal
Procedure. (Para-2,15)

HELD: -Revision preferred against an order of
acquittal passed prior to 31.12.2009 cannot be
converted into an appeal. Present revision not
liable to be converted into an appeal. Criminal
revision before appropriate Bench. (Para16,20)

Application to convert criminal revision
into an appeal rejected. (E-7)

List of Cases cited:

## Text

1 All. Smt. Mamta Shukla Vs. State of U.P. & Ors.
1089
be sufficient cause for proceeding and the
trial court vide order dated 31.07.2023 did
not
find
any
sufficient
ground
for
proceeding further.

23. So far as judgement in the case of
Dilip Kumar (supra) is concerned, the
facts of that case are different from the
facts of the present case, in that case the
Magistrate did not consider the statement
of the complainant and his witnesses, as
the witnesses were not examined in that
case but the case in hand the position is
different. The statements of the witnesses
have been recorded and considered by the
trial court, hence the appellant cannot
take benefit of this judgement also.

24. From the perusal of the
complaint, it is clear that appellant is said
to have paid Rs. 50,000/- as illegal
gratification to the opposite party no.2 for
securing a job for him. On one hand he
has done a job which is against the law,
at the same time, he has not placed before
the Court any statement of account or
evidence that this amount was ever
withdrawn by the appellant from the bank
and was paid by him to the opposite party
no.2. A person of 42 years of age does
not fulfill the criteria for getting a job on
contract basis, as services on contract
basis are given in the Government
Department to a person upto, a certain
age. A person being 42 years of age,
cannot be given a government job on
contract basis also. Thus the basis of
allegation that the amount was paid to the
opposite party no.2 as illegal gratification
for arranging a job for him, is neither
proved nor it can be considered lawful.

25. In the opinion of the Court neither
the facts mentioned in the complaint can be
said to be the sufficient cause of action for
proceeding further nor this Court has any
sufficient ground to interfere with the
discretion exercised by the Magistrate to
substitute its own discretion. The appeal is
liable to be dismissed.

26. The appeal is thus dismissed.
----------
(2024) 1 ILRA 1089
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.12.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Revision No. 561 of 1996

Smt. Mamta Shukla ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri L.P. Singh, Sri Rajiv Lochan Shukla, Sri
Ramanuj Yadav

Counsel for the Opposite Parties:
Govt. Advocate, Sri A. Kumar Srivastava,
Sri A.K. Singh

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision , Section 372 - No appeal to lie
unless otherwise provided, Section 378 -
Appeal in case of acquittal , Right to
appeal is a substantive right and it is not a
mere matter of procedure - If a judgment
of acquittal had been passed on or after
31.12.2009 only then an appeal can be
preferred otherwise only a revision can be
preferred in case of a judgment and order
of acquittal. (Para - 10,11,15)
Offence
committed
before
31.12.2009
-
acquittal order passed on 07.03.1996 - Accused
persons acquitted - aggrieved - informant
preferred
criminal
revision
under
Section
397/401 CrPC on 15.04.1996 - revisionist moved
an application on 04.12.2019 - to convert
revision into criminal appeal under Section 372
1090 INDIAN LAW REPORTS ALLAHABAD SERIES
CrPC - amendment in Code of Criminal
Procedure. (Para-2,15)

HELD: -Revision preferred against an order of
acquittal passed prior to 31.12.2009 cannot be
converted into an appeal. Present revision not
liable to be converted into an appeal. Criminal
revision before appropriate Bench. (Para16,20)

Application to convert criminal revision
into an appeal rejected. (E-7)

List of Cases cited:

1. Mallikarjun Kodagali (Dead) through L.R. Vs
St. of Karn. & ors. , 2018 0 Supreme (SC) 983.

2. Baldev Sharma Vs Gopal & anr., 2017 0
Supreme (Raj) 1649.

3. T.S.L. Vs Atma Tube Products Ltd. & ors. ,
2013 LawSuit (P&H) 1375.

4. In Re: Provision of Section 14A of SC/ST
(Prevention of Atrocities) Amendment Act,
2015 Vs Nil, 2018 0 Supreme (All) 1007 (All)
(FB).

5. D. Sudhakar Vs Panapu Sreenivasulu @
Evone Water Sreenivasulu & ors., 2012 SCC
OnLine AP 416.

6. John Vs Shibu Cherian, (2011) 4 KLJ 25.

7. Bhisam Prasad Bareth Vs Dinesh Mahant &
ors. , 2012 SCC OnLine (Chh) 240.

8. Atma Tube Products Ltd. & ors. Vs Dhiraj
Kumar, 2013 (2) RCR (Cri) 1005

9. D. Sudhakar Vs Panapu Sreenivasulu @
Evone Water Sreenivasulu & ors., 2012 SCC
OnLine AP 416

10. Andhra Pradesh High John Vs. Shibu
Cherian, (2011) 4 KLJ 25

11. Bhisam Prasad Bareth Vs Dinesh Mahant &
ors. , 2012 SCC OnLine (Chh) 240

12. N.C.W. Vs St. of Delhi & anr., (2010) 12
SCC 599
13. Atma Tube Products Ltd. & ors. Vs Dhiraj
Kumar, 2013 (2) RCR (Cri) 1005

14. Baldev Sharma Vs Gopal & anr., 2017 0
Supreme (Raj) 1649

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Sri Rajiv Lochan Shukla,
learned counsel for the revisionist, Sri
Mithilesh Kumar, learned AGA for the
State, Sri A. Kumar Srivastava, learned
counsel for the opposite party nos.2 to 8
and perused the record.

2. At present, before this Court, the
application dated 04.12.2019 moved on
behalf of the revisionist to convert the
present revision into criminal appeal is
pending for disposal with an affidavit
against which the accused persons have
strong objection that at the time of
institution of this revision and when cause
of action arises to the informant, there was
no provision to prefer an appeal against an
order of acquittal passed by the Sessions
Judge.

3. In brief, facts of the case are that
the Sessions Judge, Hamirpur acquitted all
the accused persons under the charges
under Sections 148, 352, 302 read with
Section 149 IPC by the judgment and order
dated 07.03.1996. Being aggrieved, the
informant preferred this criminal revision
under
Section
397/401
CrPC
on
15.04.1996. During the pendency of the
instant criminal revision, learned counsel
for the revisionist has moved an application
dated 04.12.2019 to convert this revision
into criminal appeal under Section 372
CrPC with the allegations that the deponent
Smt. Mamta Shukla has been advised to
state that by virtue of amendment in the
Code of Criminal Procedure, now the
1 All. Smt. Mamta Shukla Vs. State of U.P. & Ors.
1091
victim has right to prefer a criminal appeal
against the order of acquittal under Section
372 CrPC.

4. The deponent had preferred a
criminal revision in the year 1996 for the
remedy as existed at that relevant point of
time. However, now due to legislative
changes which is beneficiary in nature, a
better right to file a criminal appeal is
available to the deponent which she prays
and she may be allowed to convert the
revision into an appeal otherwise the
revisionist shall suffer irreparable loss
and injury. Therefore, this Court may
graciously be pleased to allow the
application and convert this criminal
revision
into
criminal
appeal
as
maintainable on behalf of the victim
under Section 372 CrPC otherwise the
applicant shall suffer irreparable loss and
injury.

5. In Chapter XXX of the Code of
Criminal
Procedure,
the
provisions
regarding the criminal revision has been
mentioned in Sections 395 to 405 CrPC.
The relevant sections for the purpose of
the matter are Sections 397 and 401 CrPC
which are as under:-

"397. Calling for records to
exercise powers of revision.-(1) The
High Court or any Sessions Judge may
call for and examine the record of any
proceeding before any inferior Criminal
Court situate within its or his local
jurisdiction for the purpose of satisfying
itself or himself; 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 inferior Court, and may, when
calling, for such record, direct that the
execution of any sentence or order be
suspended, and if the accused is in
confinement that he be released on bail or
on his own bond pending the examination
of the record.

Explanation.-All Magistrates,
whether Executive or Judicial, and
whether exercising original or appellate
jurisdiction, shall be deemed to be
inferior to the Sessions Judge for the
purposes of this sub-section and of
section 398.

(2) The powers of revision
conferred by sub-section (1) shall not be
exercised in relation to any interlocutory
order passed in any appeal, inquiry, trial
or other proceeding.

(3) If an application under this
section has been made by any person
either to the High Court or to the
Sessions Judge, no further application by
the same person shall be entertained by
the other of them.

x x x x x

401. High Court's powers of
revision.-(1)
In
the
case
of
any
proceeding 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
1092 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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 this 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."

6. The provisions regarding criminal
appeals have been provided in Chapter
XXIX of the Code of Criminal Procedure.
The relevant sections for the purpose of
the present matter are Sections 372 and
378 CrPC which are as under:-

"372. No appeal to lie unless
otherwise provided.-No appeal shall lie
from any judgment or order of a Criminal
Court except as provided for by this Code
by any other law for the time being in
force:

Provided that the victim shall
have a right to prefer an appeal against
any order passed by the Court acquitting
the accused or convicting for a lesser
offence
or
imposing
inadequate
compensation, and such appeal shall lie to
the Court to which an appeal ordinarily
lies against the order of conviction of such
Court.

x x x x x

378.
Appeal
in
case
of
acquittal.-(1) Save as otherwise provided
in sub-section (2), and subject to the
provisions of sub-sections (3) and (5),-

(a) the District Magistrate may,
in any case, direct the Public Prosecutor
to present an appeal to the Court of
Session from an order of acquittal passed
by
a
Magistrate
in
respect
of
a
cognizable and non-bailable offence;

(b) the State Government may,
in any case, direct the Public Prosecutor
to present an appeal to the High Court
from an original or appellate order of
acquittal passed by any Court other than
a High Court not being an order under
clause (a) or an order of acquittal passed
by the Court of Session in revision.

(2) If such an order of acquittal
is passed in any case in which the offence
has been investigated by the Delhi
Special Police Establishment constituted
under
the
Delhi
Special
Police
Establishment Act, 1946 (25 of 1946), or
by any other agency empowered to make
investigation into an offence under any
Central Act other than this Code, the
Central Government may, subject to the
provisions of sub-section (3), also direct
the Public Prosecutor to present an
appeal-

(a) to the Court of Session, from
an order of acquittal passed by a
1 All. Smt. Mamta Shukla Vs. State of U.P. & Ors.
1093
Magistrate in respect of a cognizable and
non-bailable offence;

(b) to the High Court from an
original or appellate order of an acquittal
passed by any Court other than a High
Court [not being an order under clause
(a)] or an order of acquittal passed by the
Court of Session in revision.

(3) No appeal to the High Court
under sub-section (1) or sub-section (2)
shall be entertained except with the leave of
the High Court.

(4) If such an order of acquittal is
passed in any case instituted upon
complaint and the High Court, on an
application made to it by the complainant
in this behalf, grants special leave to
appeal from the order of acquittal, the
complainant may present such an appeal to
the High Court.

(5) No application under subsection (4) for the grant of special leave to
appeal from an order of acquittal shall be
entertained by the High Court after the
expiry
of
six
months,
where
the
complainant is a public servant, and sixty
days in every other case, computed from
the date of that order of acquittal.

(6) If, in any case, the application
under sub-section (4) for the grant of
special leave to appeal from an order of
acquittal is refused, no appeal from that
order of acquittal shall lie under subsection (1) or under sub-section (2)."

7. Following judicial pronouncements
have been relied on by the parties:-

(i)
Mallikarjun
Kodagali
(Dead) through legal representatives Vs.
State of Karnataka and others, 2018 0
Supreme (SC) 983.

(ii) Baldev Sharma Vs. Gopal
and another, 2017 0 Supreme (Raj) 1649.

(iii) Tata Steel Ltd. Vs. Atma
Tube Products Ltd. and others, 2013
LawSuit (P&H) 1375.

(iv) In Re : Provision of Section
14A of SC/ST (Prevention of Atrocities)
Amendment Act, 2015 Vs. Nil, 2018 0
Supreme (All) 1007 (All) (FB).

(v) D. Sudhakar Vs. Panapu
Sreenivasulu
@
Evone
Water
Sreenivasulu and others, 2012 SCC
OnLine AP 416.

(vi) John Vs. Shibu Cherian,
(2011) 4 KLJ 25.

(vii) Bhisam Prasad Bareth Vs.
Dinesh Mahant and others, 2012 SCC
OnLine (Chh) 240.

(viii) Atma Tube Products Ltd.
and others Vs. Dhiraj Kumar, 2013 (2)
RCR (Cri) 1005.

8. In Re: provisions of Section 14A
of the Scheduled Caste and Scheduled
Tribe
(Prevention
of
Atrocities)
Amendment
Act,
2015
(supra)
is
concerned, it is not dealing with the present
matter in which the second proviso to
Section 14A(3) of the Act it is violative of
both Articles 14 and 21 of the Constitution
of India. It has also been held that the
constitutional and inherent powers of the
High Court are not ousted by Section 14A
of the Act, 2015. It has also been held that
the applicability of Section 14A will not
depend of date of commission of offence.
1094 INDIAN LAW REPORTS ALLAHABAD SERIES
One of the determinative factors would be
the date of order of Special Court or
Exclusive Court.

9. According to this Court, the
aforesaid judgment is not helpful to the
revisionist as in this case the impugned
judgment of acquittal had been passed on
07.03.1996 when there was provision of
preferring a revision by the informant if he
is aggrieved by the judgment and order of
acquittal passed by the lower court.

10. In Mallikarjun Kodagali (supra)
it has been held that the proviso to Section
372 has come into force on 31.12.2009 and
in case of a judgment and order of
acquittal, the relevant date would be the
date of judgment and order of the trial
court. The date of occurrence would not be
material. It has also been held that the right
to appeal is a substantive right and it is not
a mere matter of procedure. The Apex
Court held that the judgment of Andhra
Pradhesh High Court in D. Sudhakar Vs.
Panapu Sreenivasulu @ Evone Water
Sreenivasulu and others, 2012 SCC
OnLine AP 416, the Andhra Pradesh
High Court has wrongly concluded that
since the order of acquittal was passed on
30.11.2011 and the offence had been
committed prior to 31.12.2009, hence,
revision would lie. Similarly, the judgment
of the learned single Judge in John Vs.
Shibu Cherian, (2011) 4 KLJ 25, decided
on 05.08.2011 by the Kerala High Court
has also been held to be no good law. The
Apex Court also found the judgment in
Bhisam Prasad Bareth Vs. Dinesh
Mahant and others, 2012 SCC OnLine
(Chh) 240, decided on 15.03.2012 to be no
good law which had been pronounced on
the basis of the judgment of the Apex Court
in National Commission of Women Vs.
State of Delhi and another, (2010) 12
SCC 599. In this regard paragraph-72 of
the judgment is relevant which is as under:-

"72. It was also submitted by
learned counsel for the accused that in the
present fact situation, if we were to hold
that Kodagali was entitled to file an appeal
against the acquittal of the accused, then
we would be giving retrospective effect to
the proviso to Section 372 of the Cr.P.C. It
was submitted that if Parliament intended
to confer a statutory right of appeal on a
victim with retrospective effect, it would
have specifically said so. Since the proviso
to Section 372 of the Cr.P.C. was not
specifically given retrospective effect, it
must operate prospectively and the crucial
date in a case such as the present would be
the date of the alleged offence."

11. From the aforesaid judgment it is
clear that the Apex Court has held that if a
judgment of acquittal had been passed on
or after 31.12.2009 only then an appeal can
be preferred otherwise only a revision can
be preferred in case of a judgment and
order of acquittal.

12. In Atma Tube Products Ltd.
and others Vs. Dhiraj Kumar, 2013 (2)
RCR (Cri) 1005, it has been held that the
proviso to Section 372 to prefer an appeal
in case of a judgment of acquittal is
prospective in application and only those
orders which have been passed on or after
31.12.2009,
irrespective
of
date
of
occurrence or registration of FIR or filing
of complaint shall be appealable at the
instance of a victim under the aforestated
proviso. The Full Bench of Punjab and
Haryana High Court has finally concluded
that a revision preferred against an order of
acquittal passed prior to 31.12.2009 cannot
be converted into an appeal and shall be
decided accordingly.
1 All. Smt. Mamta Shukla Vs. State of U.P. & Ors.
1095

13. In Baldev Sharma Vs. Gopal
and another, 2017 0 Supreme (Raj) 1649,
the Full Bench of Rajasthan High Court
framed five questions out of which
question no.2 relates with this matter which
is as under:-

"(ii) Whether the proviso to
Section 372 as introduced by the amending
Act No.5 of 2009 which has been brought
into effect on 31.12.2009 can be given
effect to in cases where the offence
occurred prior to 31.12.2009 and thereby
given the right of appeal to the victim in the
event; (a) whether the court below has
acquitted the accused or (b) has convicted
the accused for a lesser offence or (c) has
imposed inadequate compensation. Though
the judgment in such cases may have been
passed
by
the
court
below
after
31.12.2009."

14. In paragraphs-3 to 6 of the
aforesaid judgment this question has been
answered which is as under:-

"3. As regards point No.2, the
date wherefrom right accrues to a victim to
seek leave to appeal, in the decision
reported as (2011) 6 SCC 739, Thirumalai
Chemicals Ltd. v. Union of India, the
Supreme Court clearly held that the 'right
of appeal being a substantive right always
acts prospectively. It is trite law that every
statute is prospective unless it is expressly
or by necessary implication made to have
retrospective
operation.'
This
is
a
consistent position of law, and has been
affirmed
by
the
Supreme
Court
in
numerous cases, such as AIR 1994 SC
2623, Hitendra Vishnu Thakur v. State of
Maharashtra, (2005) 4 SCC 480, Kailash v.
Nanhku & Ors., and (2014) 5 SCC 219,
H.P.
State
Electricity
Regulatory
Commission v. H.P. SEB,

4. This has also been the view of
most of the High Courts, with respect to
this question. The Punjab and Haryana
High Court, in the decision reported as
(2014) 1 PLR 1, CRM-790-MA-2010, Tata
Steel v. Atma Tube Projects, , held :

"Since right to appeal is a
substantive right and it cannot be inferred
by implication unless the Statute expressly
provides
so,
the
only
inescapable
conclusion would be to hold that the right
to appeal given to a 'victim' under proviso
to Section 372 of the Code is prospective
and
has
become
enforceable
w.e.f.
December 31, 2009 only. A 'victim' is
entitled to prefer appeal in respect of any
type of order referred to in the proviso to
Section 372 if such order has been passed
on or after December 31, 2009 irrespective
of the date of registration of FIR or the
date of occurrence etc. To be more specific,
it is clarified that it is the date of passing of
the order to be appealed from and not any
other fact situation, which shall determine
the right to appeal of a 'victim'."

5. Similarly, in the decision
reported as 2014 Crim. Law Journal 1046,
Parmeshwar Mandal Vs. The State of
Bihar, the Patna High Court held:

"...the said proviso contains both
substantive part, creating right in the
victim to prefer an appeal, and procedural
part, by identifying the forum for filing
such an appeal. It is not in dispute that the
substantive
part
of
law
operates
prospectively.....it has to be concluded that
the right of victim, to prefer an appeal in
terms of said proviso to Section 372,
became available to the victim(s) of all
cases in which orders were passed by any
criminal court acquitting the accused or
convicting him for a lesser offence or
1096 INDIAN LAW REPORTS ALLAHABAD SERIES
imposing inadequate compensation, on or
after 31st of December, 2009. In other
words, date of judgment of a criminal court
has to be necessarily treated as the
relevant date for applying the test of
maintainability of appeal by the victim
under three contingencies laid down
under the proviso to Section 372 of the
Code,
irrespective
of
the
date
of
occurrence,
institution
of
the
case,
cognizance or commitment."

6. Thus, the effective date is
31.12.2009. Judgments passed on or after
said date are the ones in respect whereto,
irrespective of the date of the offence, the
victim can avail the right to file an
application seeking leave to appeal."

15. From the perusal of the above
judgments and principles laid down by
the Apex Court and different High Courts
it is very much clear that if an order or
judgment of acquittal has been passed on
or after 31.12.2009 only then an appeal
can be preferred against such order by the
victim or the injured otherwise he can file
revision only. In this case the offence had
been committed prior to 31.12.2009 and
the order and judgment of acquittal was
also passed on 07.03.1996 against which
the informant has already preferred
revision which can be decided as per
existing rules and law.

16. According to this Court,
considering the facts and circumstances
of the case in hand, the present revision is
not liable to be converted into an appeal.

17. This revision is pending since
1996 and the learned counsel for the
revisionist never tried to get the revision
decided. Even this revision was once
dismissed for want of prosecution which
was later on restored. Had the argument
been advanced after institution of the
revision, the same would have been
decided much earlier. In case the revision
would have been allowed, the trial court
would have been directed to decide the
sessions trial afresh within stipulated period
prescribed by this Court.

18. Thus, this Court is of the view
that the application with the prayer to
convert this criminal revision into an
appeal is devoid of merit which has no
force and is liable to be rejected.

O R D E R

19. Accordingly, the application dated
04.12.2019 moved by the revisionist to
convert the present revision into criminal
appeal is hereby rejected.

20. List this criminal revision on
18.01.2024 in the additional cause list for
disposal before the appropriate Bench.
----------
(2024) 1 ILRA 1096
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.12.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA,
J.

Criminal Revision No. 1484 of 1998

Kharak Singh ...Revisionist
Versus
Krishna Pal & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Dileep Kumar, Sri Rajeev Gupta, Sri
Tarun Agarwal

Counsel for the Opposite Parties: