# Umesh Chandra /Revisionist v. The State of U.P. & Ors. Opp. Parties

- **Citation:** (2019) 2 ILRA 524
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-11
- **Case number:** Criminal Revision No. 1089 of 1996
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/umesh-chandra-revisionist-v-the-state-of-u-p-ors-opp-parties-44806
- **Pages:** 5

## Headnote

A. Cr.P.C., 1973 - Section 397/401 -
Revisional Jurisdiction of High Court - is
supervisory
jurisdiction
exercised
to
correct the manifest error in the orders
of subordinate courts. It is distinct from
Appellate
jurisdiction
-
Acquittal
of
accused-Double
presumption
of
innocence in his favour - Revisional
powers of High Court to be exercised
only when the Court lacks jurisdiction or
has
excluded
evidence
which
was
admissible, or relied on inadmissible
evidence or material evidence has been
2 All. Umesh Chandra Vs The State of U.P. & Ors.
525
overlooked. (Para 4, 5, 6, 13 & 15)

In
case
of
acquittal,
there
is
double
presumption in favour of the accused. Firstly,
the presumption of innocence is available to
him under the fundamental principle of
criminal jurisprudence that every person shall
be presumed to be innocent unless he is
proved guilty by a competent court of law.
Secondly, the accused having secured his
acquittal, the presumption of his innocence is
further
reinforced,
reaffirmed
and
strengthened by the Trial Court.

The revisional jurisdiction of the High Court
cannot be invoked merely because the lower
court has taken a wrong view of law or
misappreciated the evidence on record. 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.

Unless there is a patent and culpable illegality
justifying interference in judgment of acquittal,
this Court shall not and should not interfere in
criminal revision. The revision is dismissed.
Interim order, if any, stands vacated.

Criminal Revision dismissed (E-3)

Case law discussed: -

## Text

524 INDIAN LAW REPORTS ALLAHABAD SERIES
crime must not be irrelevant but it should
conform to and be consistent with the
atrocity and brutality which the crime has
been perpetrated, enormity of crime
warranting public abhorrence and it
should 'respond to the society's cry for
justice against the criminal'. [Vide:
Sumer Singh vs. Surajbhan Singh and
others, (2014) 7 SCC 323, Sham Sunder
vs. Puran, (1990) 4 SCC 731, M.P. v.
Saleem, (2005) 5 SCC 554, Ravji v.
State of Rajasthan, (1996) 2 SCC 175].

45. Hence, applying the principles
laid down in the aforesaid judgments and
having regard to the totality of facts and
circumstances of case, motive, nature of
offence and the manner in which it was
executed or committed, we find that
punishment
imposed
upon
accusedappellant by Trial Court in impugned
judgment and order is not excessive and it
appears fit and proper and no ground
appears to interfere in the matter on the
point of punishment imposed upon him.

46. We, therefore, find no merit in
appeal. Present Jail Appeal lacks merit and
is, accordingly, dismissed. Judgement and
order dated 31.08.2016 passed by Additional
Sessions Judge, FTC Court No.1, Chandauli
in Session Trial No. 54 of 2010, (State v.
Mumtaz), arising out of Case Crime No. 24 of
2010, Police Station Mugalsarain, under
Sections 302 and 201 IPC, is maintained and
confirmed.

47. Lower Court record along with a
copy of this judgment be sent back
immediately to District Court and Jail
concerned for compliance and apprising
the accused-appellant.

48. Before parting, we provide that
Sri Vimlendu Tripathi, Advocate, who
has appeared as Amicus Curiae for
appellant in present Jail Appeal, shall be
paid counsel's fee as Rs. 11,500/- for his
valuable assistance. State Government is
directed to ensure payment of aforesaid
fee
through
Additional
Legal
Remembrancer, posted in the office of
Advocate General at Allahabad, without
any delay and, in any case, within one
month from the date of receipt of copy of
this judgment.
----------

(2019)10ILR A 524

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.09.2019

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.

Criminal Revision No. 1089 of 1996

Umesh Chandra
 ...Complainant/Revisionist
Versus
The State of U.P. & Ors. ...Opp. Parties

Counsel for the Revisionist:
Sri B.R. Singh

Counsel for the Opposite Parties:
A.G.A.

A. Cr.P.C., 1973 - Section 397/401 -
Revisional Jurisdiction of High Court - is
supervisory
jurisdiction
exercised
to
correct the manifest error in the orders
of subordinate courts. It is distinct from
Appellate
jurisdiction
-
Acquittal
of
accused-Double
presumption
of
innocence in his favour - Revisional
powers of High Court to be exercised
only when the Court lacks jurisdiction or
has
excluded
evidence
which
was
admissible, or relied on inadmissible
evidence or material evidence has been
2 All. Umesh Chandra Vs The State of U.P. & Ors.
525
overlooked. (Para 4, 5, 6, 13 & 15)

In
case
of
acquittal,
there
is
double
presumption in favour of the accused. Firstly,
the presumption of innocence is available to
him under the fundamental principle of
criminal jurisprudence that every person shall
be presumed to be innocent unless he is
proved guilty by a competent court of law.
Secondly, the accused having secured his
acquittal, the presumption of his innocence is
further
reinforced,
reaffirmed
and
strengthened by the Trial Court.

The revisional jurisdiction of the High Court
cannot be invoked merely because the lower
court has taken a wrong view of law or
misappreciated the evidence on record. 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.

Unless there is a patent and culpable illegality
justifying interference in judgment of acquittal,
this Court shall not and should not interfere in
criminal revision. The revision is dismissed.
Interim order, if any, stands vacated.

Criminal Revision dismissed (E-3)

Case law discussed: -

1. D. Stephens Vs Nosibolla AIR 1951 SC 196
2. K. Chinnaswamy Reddy Vs St. of A.P. AIR
1962 SC 1788
3. Mahendra Pratap Singh Vs Sarju Singh AIR
1968 SC 707
4. Khetrabasi Samal Vs St. of Ori. AIR 1970 SC 272
5. Satyendra Nath Dutta & anr. Vs Ram Narain
AIR 1975 SC 580
6. Jagannath Choudhary & ors. Vs Ramayan
Singh & anr. (2002) 5 SCC 659
7. Johar & ors. Vs Mandal Prasad & anr. 2008
Cr.L.J. 1627 (S.C.)
8. Duli Chand Vs Delhi Administration (1975) 4
SCC 649
9. Pathumma & anr. Vs Muhammad (1986) 2
SCC 585
10. Munna Devi Vs St. of Raj. & anr. (2001) 9
SCC 631
11. Ram Briksh Singh & ors. Vs Ambika Yadav
& anr. (2004) 7 SCC 665
12. Shivaji Sahebrao Bobade & anr. Vs St. of
Mah. AIR 1973 SC 2622
13. Girija Prasad (Dead) by L.Rs. Vs St. of M.P.
(2007) 7 SCC 625
14. St. of Goa Vs Sanjay Thakran (2007) 3
SCC 755
15. Chandrappa Vs St. of Kar. (2007) 4 SCC
415
16. St. of Raj. Vs Shera Ram alias Vishnu
Dutta (2012) 1 SCC 602
17. Shivasharanappa & ors. Vs St. of Kar. &
ors. (2013) 5 SCC 705

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri B.R. Singh, learned
counsel for revisionist and perused the
record.

2. This criminal revision under
Section 397/401 Cr.P.C., has been filed
aggrieved by order dated 30.05.1996
passed by IInd Additional Sessions Judge,
Etah in Session Trial No. 521 of 1994,
whereby Respondents were acquitted
from the offence under Sections 302/34
IPC.

3. Despite repeated query learned
counsel for revisionist could not point out
any error in the judgment in question
particularly in view of the categorical
526 INDIAN LAW REPORTS ALLAHABAD SERIES
finding recorded by Court below in para
28 of judgment that both the witnesses of
fact, i.e., PWs-1 and 2 were not present at
the time of incident in village in question.
Their testimony has also been found
contrary to medical report and Court
below has also recorded finding that First
Information Report was ante-time. These
findings have not been shown perverse or
contrary to material on record so as to
justify interference in criminal revision.

4. 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.

5. 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
High Court cannot be invoked merely
because the lower court has taken a wrong
view of law or misappreciated the
evidence on record.

6. 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.

7. 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.).

8. 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.
2 All. Umesh Chandra Vs The State of U.P. & Ors.
527

9. 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.

10. 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."

11. 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 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."

12. Moreso, if an appeal is filed
against acquittal despite the fact that
plenary power of Appellate Court to
review the whole evidence on which order
of
acquittal
is
founded
has
been
recognized by a Three Judge Bench of
Supreme Court in Shivaji Sahebrao
Bobade and another vs. State of
Maharashtra, AIR 1973 SC 2622 and
it has been followed in Girija Prasad
(Dead) by L.Rs. vs. State of Madhya
Pradesh, 2007(7) SCC 625 and State
of Goa vs. Sanjay Thakran, 2007(3)
SCC 755, still Court has held that in
the matter of acquittal there are certain
other principles which are to be kept in
mind.

13. In Chandrappa vs. State of
Karnataka, 2007(4) SCC 415 Court said
that an Appellate Court, however, must
bear in mind that in case of acquittal,
there is double presumption in favour of
the accused. Firstly, the presumption of
innocence is available to him under the
fundamental
principle
of
criminal
jurisprudence that every person shall be
presumed to be innocent unless he is
proved guilty by a competent court of
law.
Secondly,
the
accused
having
secured his acquittal, the presumption of
his innocence is further reinforced,
reaffirmed and strengthened by the Trial
Court.

14. Further in State of Rajasthan
vs. Shera Ram alias Vishnu Dutta,
2012(1) SCC 602 Court said that High
Court is required to see that unless
there are substantial and compelling
circumstances, the order of acquittal is
528 INDIAN LAW REPORTS ALLAHABAD SERIES
not required to be reversed in appeal.
All these authorities have been referred
and followed in Shivasharanappa and
others vs. State of Karnatapa and
others, 2013(5) SCC 705.

15. In the present case above
principles are not only applicable in
entirety but makes the jurisdiction of this
Court further narrower for the reason that
here the judgment of acquittal has been
challenged in revision where the scope of
judicial review is further limited as
already discussed above and not as wide
as that of Appellate Court. Therefore,
unless there is a patent and culpable
illegality
justifying
interference
in
judgment of acquittal, this Court shall not
and should not interfere in criminal
revision.

16. The revision is dismissed.
Interim order, if any, stands vacated

17. Certify this judgment to the
lower Court immediately.
----------

(2019)10ILR A 528

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.07.2019

BEFORE

THE HON'BLE RAJUL BHARGAVA, J.

Criminal Revision No. 2699 of 2019

Sagar Yadav & Anr. ...Revisionists
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Revisionists:
Sri Rajiv Lochan Shukla, Sri Shiv Shankar
Prasad Gupta
Counsel for the Opposite Parties:
A.G.A.

A. Cr.P.C., 1973-Section 319 - Revisionists
though nominated in the F.I.R exonerated
in the Police Report on basis of alibi -"
Evidence" - is limited to the evidence
recorded by the trial court - Statement
recorded under Section 161 of the Cr.Pc -
Has
only
the
limited
purpose
of
contradicting the maker thereof- the other
evidence which has come on record
between the stage of taking cognizance by
the Court till the commencement of the
trial can merely be used for corroborative
purposes - Plea of Alibi- Section 103 of the
Evidence Act - Burden of Proof for
establishing the plea of alibi - Could be
done by leading evidence in trial court and
not by relying on the material collected
during investigation n- The Court in
exercise of its inherent powers under
Section 482 Cr.P.C. cannot consider the
plea of alibi of an accused- Precedent-a
decision is precedent on its own facts- the
only thing binding a party is the ratio
decidendi which is generally secundum
subjectam
materiam-Application
under
Section 319 Cr.P.C.- is maintainable only
when implicative evidence of probative
value more than strong suspicion comes
on record in shape of documentary or oral
evidence in trial - Power under Section 319
of the Code - is conferred on the court to
ensure that justice is done to the society
by bringing to book all those guilty of an
offence and to render justice to the victim.

Scope, ambit and sweep of expression
"evidence" contained under Section 319 Cr.P.C.
and explained in the para 85 in the
Constitution Bench judgement of Hardeep
Singh was not considered in the subsequent
cases in Brijendra Singh's and Shiv Prakash
Mishra's cases to the extent that any evidence
collected during investigation either in favour
of the prosecution or the accused cannot be
taken into account while exercising the power
under
Section
319
Cr.P.C.
In
view
of
unambiguous interpretation to the word
'evidence'; it is limited to the evidence
recorded
by
the
trial
court".