IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL REVISION NO.182 OF 2007 (OLD NO.1382/1988) Om Prakash ……… Revisionist Versus The State ..…... Respondent Dated: April 29, 2009 Sri Sandeep Tandon, learned counsel for the revisionist Sri M.A. Khan, learned brief holder for the State Sri Arvind Vashitha, learned counsel for the C.B.I. HON. DHARAM VEER, J. This criminal revision, preferred under section 397/401 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.) is directed against the judgment and order dated 19.9.1988 passed by Special Judge, Anti-Corruption, U.P. (East), Dehradun in Crl. Appeal No.41/1984, dismissing the appeal and upholding the order of conviction and sentence dated 17.7.1984 passed by Special Magistrate, C.B.I., S.P.P., Dehradun in Crl. Case No.186/1980, by which the accused/revisionist- Om Prakash was convicted u/s 467 of the Indian Penal Code, 1860 (hereinafter to be referred as the I.P.C.) and was sentenced to undergo R.I. for a period of two years and fine of Rs.5,000/- and in default of payment of fine to further undergo R.I. for six months. 2. I have heard Sri Sandeep Tandon, learned counsel for the revisionist, Sri M.A. Khan, learned brief holder for the State as well as Sri Arvind Vashitha, learned counsel for the C.B.I. Perused the entire material available on file. 3. District Judge, Dehradun vide his letter dated 1.9.2008 has informed that the Officer-In-Charge, Record 2 Room (Civil), District Judge’s Court, Dehradun vide his report dated 22.7.2008 has reported that the record of Criminal Appeal No.41/1984, C.B.I. Vs. Om Prakash has been weeded out on 14.6.1996 as per the rules. It was further informed that so far as the record of C.B.I. Criminal Case No.186/1980, C.B.I. Vs. Om Prakash, is concerned, it is also reported to be missing and is not traceable despite extensive search. 4. On 18.03.2009, Sri Arvind Vashistha, learned counsel for the C.B.I. was permitted to reconstruct the record of the above-said case but despite his best efforts he could not reconstruct the record. However, he has filed a copy of the first information report but according to the learned counsel for the revisionist it is not related to the above-said case. Sri Arvind Vashitha, Advocate and Sri M.A. Khan, learned brief holder for the State have also conceded to this point. 5. Learned counsel for both the parties has submitted that after the passing of the orders dated 17.7.1984 and 19.9.1988, which are under challenge, a long gap has elapsed and now the reconstruction of record or retrial is not possible. I am also of the view that a long gap has elapsed since the commission of the offence, hence, the reconstruction of record or retrial is not possible. I am fortified in my view with the judgment rendered by Allahabad High Court in the case of Om Prakash Vs. State of U.P. reported in A.L.C. 1999 Vol.II Page 685, it has been held in para 4 and 5 that: - 4. The contention of the revisionist has substantial force. In the case of Ram Nath V. State, the view taken by the Division Bench of this Court was that when material on record was not sufficient to dispose of the appeal on merits and it was not possible to reconstruct the record, its benefit 3 should go to the accused-appellant. What has been held with regard to appeal would equally apply to a revision against conviction upheld by the lower appellate Court insofar as non- availability of the record is concerned. 5. In the case at hand, the incident took place as back as on 27.6.1979 viz., more than twenty years back. Since the record of the lower court is not available and the reconstruction is also not possible, the revision deserves to be allowed on this score alone. 6. The Allahabad High Court again in the case of Akhilesh Chandra Vs. State of U.P. reported in [2007 (57) ACC 50] in para 3 and 7 has held that: - 3. At the time of hearing of the revision it was detected that the Trial Court record was not received in this Court even though the summoning of the Trial Court was ordered by this Court. It was informed that the same was weeded out. Consequently, reconstruction of the record was ordered by this Court. In pursuance of the said order, the reconstruction of the record was endeavored and some papers were received from the office of C.M.O. vide his letter dated 9.4.1999 which included the notice u/s 13(2) of the Act, the copy of the sanction granted by the Chief Medical officer/ Local Health Authority dated 20.4.1983, the application of the Food Inspector for grant of sanction, the Public Analyst report dated 21.2.1983. Rest of the record of the case was not traced out and it was reported by the Chief Judicial Magistrate, Farrukhabad vide his letter dated 16.4.1999 that it is not possible to reconstruct the record. 7. In view of what has been said have above, there is no other option for this Court but to acquit the revisionist of the charges leveled against him. 4 7. In view of the above, the revision is allowed. The judgment and order dated 17.7.1984 passed by Special Magistrate, C.B.I., S.P.P., Dehradun in Crl. Case No.186/1980 as well as the judgment and order dated 19.9.1988 passed by Special Judge, Anit-Corruption, U.P. (East), Dehradun in Crl. Appeal No.41/1984, are hereby set aside. Consequently, the conviction and sentence, awarded by the court below, are also set aside. (Dharam Veer, J.) April 29, 2009 RG