IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 11/2011 along with .
Cr. Revision No. 12 of 2011 Reserved on: 5.11.2018.
Date of decision: 13.11.2018.
Cr. Revision No.11/2011 [ENTITY] and anr. Petitioners Versus [ENTITY] Cr. Revision No.12/2011 [ENTITY] r to Respondent. Petitioner Versus [ENTITY] Respondent. Coram
The Hon'ble Mr. Justice [ENTITY], Judge.
Whether approved for reporting?1 No For the Petitioner(s) : Mr. [ENTITY], Advocate.
For the Respondent : Mr. [ENTITY], Addl. Advocate General, with Mr. [ENTITY], Dy.
Advocate General.
[ENTITY], Judge Since common questions of law and facts arise for consideration in these petitions, the same were taken up together for hearing and are being disposed of by a common judgment.
Whether the reporters of the local papers may be allowed to see the Judgment? Yes.
2 These criminal revision petitions have been filed against the judgments passed by the learned Sessions Judge, .
Kangra at Dharamshala, H.P. on 7.1.2011 whereby he affirmed the judgments passed by the learned Judicial Magistrate 1 st Class, (II), Dehra, H.P. on 1.7.2005 and 28.8.2006.
3 Brief facts of the case are that PW2 complainant, [ENTITY] got registered an FIR against the accused persons/petitioners, namely, to [ENTITY], [ENTITY] and
[ENTITY] on the ground that his younger daughter, PW3 [ENTITY] (victim) was married to [ENTITY] on 1[SECTION].2.1997. The relations between them were cordial for about one month after marriage and whereafter, the complainant's son, who works in Delhi, informed the complainant that [ENTITY] is being ill-treated by her parents-in-laws (petitioners) and because of that, she had left her matrimonial house. He stated that thereafter, [ENTITY] was again sent to her in-laws house, however, on 31.5.1997, elder son of the complainant informed telephonically that [ENTITY] had again been beaten up by her parents-in-law constraining her to leave her in-
laws house. On hearing this, the complainant reached the house in the night and came to know that [ENTITY] was at her maternal uncle's house from where she was called. It was then that the complainant came to know that not only were her parents-in-law giving beatings to her, but her father-in-law had committed indecent acts and offered teasement for bringing less .
dowry. Thereafter, a compromise was entered into between the parties, yet despite that on 9.6.1997, the complainant received information that [ENTITY] was again beaten up by her parents-in-law constraining the complainant to take assistance of the police, who got her medically examined and also got conducted her x-rays. Thereafter, an FIR came to be registered against the petitioners under [SECTION], [SECTION] read with [SECTION] [ACT].
[SECTION] The challan was presented in the court of learned Additional Chief Judicial Magistrate, Dehra on 6.9.1997 and the petitioners were made to stand trial for the aforesaid offences.
The petitioners pleaded not guilty and claimed trial.
5 After recording the statements of the prosecution witnesses, the statements of the petitioners under [SECTION] [ACT] were recorded in which they denied the incriminatory evidence led by the prosecution. However, they did not choose to lead any evidence in defence.
6 The learned trial Court on considering the evidence on record, vide judgment dated 1.7.2005 convicted and sentenced the petitioner ([ENTITY]) to undergo 2 years rigorous imprisonment with a fine of Rs.1000/- for offence punishable under [SECTION] [ACT], [SECTION] months rigorous imprisonment for offence punishable under [SECTION] [ACT] and .
2 years rigorous imprisonment for offence punishable under Section 35[SECTION] [ACT] and in default of payment of fine, to further undergo simple imprisonment for 3 months, whereas petitioner ([ENTITY]) was convicted and sentenced to undergo 2 years rigorous imprisonment with a fine of Rs.1000/- for offence punishable under [SECTION] [ACT], [SECTION] months imprisonment for offence punishable under [SECTION] [ACT] and in default of payment of fine, to further undergo simple rigorous imprisonment for 3 months, while learned trial court vide judgment dated 28.8.2006 convicted and sentenced the petitioner ([ENTITY]) to undergo 2 years rigorous imprisonment with a fine of Rs.1000/- for offence punishable under [SECTION] [ACT], [SECTION] months rigorous imprisonment for offence punishable under [SECTION] [ACT] and in default of payment of fine, to further undergo simple imprisonment for 3 months. All the sentences were ordered to run concurrently.
7 In the appeal, learned Sessions Judge affirmed the sentence so passed by the learned trial court.
8 Aggrieved by the judgments rendered by the learned Courts below, the petitioners have filed the instant revision petitions.
9 It is vehemently argued by Mr. [ENTITY], learned counsel for the petitioners that the findings recorded by the .
learned Courts below are perverse and, therefore, deserve to be set-aside and in any case the sentence, as imposed, is harsh and, therefore, a lenient view deserves to be taken in this case.
Whereas, the learned Additional Advocate General, would support the impugned judgments by contending that since the petitioners are the accused of a crime against the women and the same has been duly dealt with by utmost sensitivity and, therefore, call for no interference.
10 I have heard the learned counsel for the parties and have also gone through the records of the case.
11 However, before I deal with the contentions put-forth by the learned counsel for the petitioners, it would be necessary to delineate the scope and power of this Court while dealing with revision petition of the instant kind.
12 In [PRECEDENT], the Hon'ble Supreme Court has held that the revisional jurisdiction should normally be exercised in exceptional cases when there is a glaring defect in the proceedings or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice.
13 In [PRECEDENT], the Hon'ble Supreme Court after placing reliance upon a .
large number of its earlier judgments including Akalu Aheer vs. Ramdeo Ram, AIR 1973, SC 21[SECTION]5, held that the power, being discretionary, has to be exercised judiciously and not arbitrarily or lightly. The Court held that "judicial discretion, as has often been said, means a discretion which is informed by tradition methodolised by analogy and discipline by system".
1[SECTION] In Pathumma and another vs. Muhammad, AIR 1986, SC 1[SECTION]36, the Hon'ble Apex Court observed that High Court "committed an error in making a re-assessment of the evidence" as in its revisional jurisdiction it was "not justified in substituting its own view for that of the learned Magistrate on a question of fact".
15 In [PRECEDENT], the legal position regarding scope of revisional jurisdiction was summed up by the Hon'ble Supreme Court in the following terms:
"It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial court, that the High Court is empowered to set aside the order of the acquittal and direct a re-trial of the acquitted accused. From the very nature of this power it should be exercised sparingly and with great care and caution. The mere circumstance that a finding of fact recorded by the trial court may in the opinion of the High Court be wrong, will not justify the setting aside of the order of acquittal and directing a re-trial of the accused. Even in an appeal, the Appellate Court would not be justified in interfering with an acquittal merely because it was inclined to .
differ from the findings of fact reached by the trial Court on the appreciation of the evidence. The revisional power of the High Court is much more restricted in its scope."
16 In [PRECEDENT], Hon'ble Supreme court cautioned the revisional Courts not to lightly exercise the revisional jurisdiction at the behest of a private complainant.
17 In State of Karnataka vs. Appu Balu, AIR 1993, SC 1126 = II (1992) CCR [SECTION]58 (SC), the Hon'ble Supreme Court held that in exercise of the revisional powers, it is not permissible for the Court to re-appreciate the evidence.
18 In Ramu alias Ram Kumar and others vs. Jagannath AIR 199[SECTION] SC 26 the Hon'ble Supreme Court held as under:
"It is well settled that the revisional jurisdiction conferred on the High Court should not be lightly exercised particularly when it was invoked by a private complaint."
19 In Kaptan Singh and others vs. State of M.P. and another, AIR 1997 SC 2[SECTION]85 = II (1997) CCR 109 (SC), the Hon'ble Supreme Court considered a large number of its earlier judgments, particularly [PRECEDENT] ; [PRECEDENT]; P.N. G. Raju vs. B.P. Appadu, AIR 1975, SC 185[SECTION] and Ayodhya vs. Ram Sumer Singh, AIR 1981 SC 1[SECTION]15 and held that revisional power can be exercised only when "there .
exists a manifest illegality in the order or there is a grave miscarriage of justice".
20 In State of Kerala vs. Puttumana Illath Jathavedan Namboodiri (1999) 2 SCC [SECTION]52, the Hon'ble Supreme Court held as under:
"In Its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re- appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice."
21 In [PRECEDENT], the Hon'ble Supreme Court held as under:
"The High Court in exercise of its revisional power has upset the concurrent findings of the Courts below without in any way considering the evidence on the record and without indicating as to in what manner the courts below had erred in coming to the conclusion which they had arrived at. The judgment of the High Court contains no reasons whatsoever which would indicate as to why the revision filed by the respondent was allowed. In a sense, it is a non-speaking judgment."
22 Bearing in mind the aforesaid exposition of law and .
restricted scope of revisional jurisdiction, I have proceeded to analyze in brief the evidence available on record.
23 The material witness in this case is the victim herself, who appeared as PW3 and deposed that after fifteen days or a month after her marriage with petitioner [ENTITY], all the petitioners started teasing her for bringing less dowry. In cross-examination, she admitted that the instant FIR was got registered after intervention of the Deputy Commissioner. She further admitted that there had been efforts of compromise between her and the petitioners, but to no avail. She admitted that she left her in-laws house on 30.5.1997, but that, according to her, was out of compulsion. She denied that she often left the matrimonial house as she did not like her husband and wanted to marry some other person.
2[SECTION] The testimony of the victim is not only cogent and reliable, but is further supported by the testimony of the complainant, who is none other than her father, who while appearing as PW2, categorically stated that despite his best efforts, the petitioner and his family members were not treating his daughter properly and would often demand dowry and when such demand was not met, they would beat her up. Even, other witnesses examined by the prosecution in this case have fully supported the prosecution case.
25 The evidence has been discussed threadbare and thereafter appreciated by the learned courts below and there is no glaring feature brought to the notice of this Court, which otherwise tantamounts to gross miscarriage of justice so as to compel this Court to re-appreciate the evidence.
impugned judgments of Having said so, I really do not find any merit in these revision petitions so as to call for any interference with the conviction and sentence,however, learned counsel for the petitioners would submit that the parties at one stage entered into a compromise but since the victim herself has got remarried and her whereabouts are not known, therefore, the same could not be given effect to. In addition thereto, the petitioners would urge that FIR in the instant case was registered more than two decades back and the petitioners have already faced the pangs and suffered agony of protracted trial. Therefore, a lenient view may be taken or else they shall be stigmatized in case they are sentenced.
27 [SECTION] of the [ACT] empowers the Court to release the convict on entering into a bond, with or without sureties, on probation when he/she is found guilty of committing any offences not punishable with death or imprisonment for life. Relevant portion of [SECTION] is reproduced as under:-
"[SECTION].Power of court to release certain offenders on probation of good conduct.-(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behavior;
Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond."
28 For exercising the power which is discretionary, the Court has to consider various circumstances of the case, like the nature of the offence and the character of the offender. While considering the nature of the offence, the court must take realistic view of the gravity of the offence, the impact which the offence had on the victim, the benefit available to the accused under this provision is subject to the limitation embodied in the provision as is evident from the use of the word "may" which clearly indicates that the discretion vested with the courts whether to release the offender in exercise of the power under .
[SECTION] or [SECTION] of the Act having regard to the nature of the offence and character of the offender and over all the circumstances of the case. The powers under [SECTION] of the Act vest with the court when any person is found guilty of the offence committed not punishable with death or imprisonment for life. This power can be exercised by the courts while finding the person guilty and if the courts come to a conclusion by considering the circumstances of the case including the nature of the offence and the character of the offender, benefit should be given to the accused. Obviously, this power is available and can be exercised by the court even at the appellate stage.
29 Having regard to the rival contentions of the learned counsel for the parties, and having gone through the circumstances emanating from the record and after in depth consideration of the entire matter, I find no legal impediment for considering the case of the petitioners for grant of probation, particularly, in light of the fact that the incident in this case (i) pertains to the year 1997 and (ii) the petitioner has already faced the pangs and suffered agony of protracted trial and appeal/revision for more than two decades.
30 Even the modern trend of penology also leads to the reformation of the offender so as to make him/her useful citizen .
of the society. No useful purpose is otherwise going to be achieved by again sending the petitioners to jail.
31 Accordingly, let the Probation Officer of the area concerned where the petitioners permanently reside place before this Court his report(s) qua the antecedents of the petitioners on or before next date of hearing.
List on 2[SECTION].12.2018.
13th November, 2018 ([ENTITY]) (pankaj) Judge