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Chhote Lal & Another v. State - CRIMINAL REVISION No. 20 of 1988 [2005] RD-AH 1174 (29 April 2005)


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In the High Court of Judicature At Allahabad.

Criminal Revision no. 20 of 1988.

Chhotey Lal and another  . . . . .  . . . . . . . .  . . . .  . Revisionists.


State of U.P.  . . . . . . . . . . . . . . . . . . . .  . . . . . . ..  . Opp.Parties.


Hon'ble R.K.Rastogi,J.

This is a revision against judgment and order dated 3.12.1987 passed by Sri L.N. Rai, then District & Sessions Judge, Lalitpur in Criminal Appeal no. 5 of 1987, Om Prakash and another Vs. State of U.P.

The facts relevant for disposal of this revision are that a charge sheet was submitted against accused Om Prakash, Putti Lal and Chhotey Lal by the police of G.R.P. Lalitpur under sections 379, 411, 468, 471 and 414 I.P.C. and it was registered as criminal case no. 614 of 1982 in the court of the Chief Judicial Magistrate, Lalitpur. Since the attendance of accused  Putti Lal could not be procured, his case was separated. The remaining two accused were charged and tried for the above offences. Accused Om Prakash was convicted under section 411 I.P.C. and sentenced to one year rigorous imprisonment and to a fine of Rs.2000/- and accused Chhotey Lal was convicted under sections 467, 468 and 411 I.P.C. and sentenced to undergo rigorous imprisonment for one year and to a fine of Rs.2000/-. It was further provided that in case of default in payment of the fine they will have to undergo imprisonment for two months more. Aggrieved with that judgment and order, the above named two accused persons filed Criminal Appeal no. 5 of 1987 before the Sessions Judge, which was heard and decided by Sri L.N. Rai, then Sessions Judge, Lalitpur.

The learned Sessions Judge observed in his judgment that the accused was also charged under section 379 I.P.C. and it was held by the Magistrate that charge under section 379 I.P.C. was not proved against them beyond all reasonable doubts, but in operative portion of the judgment no clear order was passed in respect of the charge under section 379  I.P.C. He further pointed out that joint sentence of one year rigorous imprisonment was passed against accused Chhotey Lal for the offence punishable under sections 467, 468 and 411 I.P.C. and it was also against the provisions of law and separate punishment must have been provided for all these offences. He further pointed out that he could not impose separate punishment for these offences acting as appellate court. He further pointed out that the prosecution had also filed certain documents to prove the charge under sections 467 and  468 I.P.C. against accused Chhotey lal but these documents were not proved by the prosecution. He was of the view that even if these documents had not been proved, they could have been marked as material exhibits and in absence of these documents in the evidence conviction under sections 467 and 468 I.P.C. could not be legally done or maintained. He, therefore, allowed the appeal and set aside the order of conviction and sentence passed against the appellants and remanded the case back for fresh disposal in the light of the observations made in the body of the judgment. He further pointed out that the evidence already on record shall remain on the record but additional evidence may be given by the prosecution as well as by the accused and if any additional evidence is produced by the prosecution it shall be mandatory to record the statement of the accused again under section 313 Cr.P.C. With these observations he remanded the case to the court of  the Chief Judicial Magistrate, Lalitpur for further trial. Against that order of remand, the accused filed this revision before this Court.

None appeared on behalf of the revisionists at the time of hearing of the arguments in this revision, though the list was revised.

I have heard learned A.G.A. appearing for the State and  perused the record.

It is to be seen that the remand order passed by the learned Sessions Judge is completely justified. He has no jurisdiction to split up the joint sentence passed under sections 467, 468 and 411 I.P.C. and when some documents had not been proved by the prosecution an opportunity could be given to the prosecution to prove them and the accused have  also been provided an opportunity to get their statements further recorded under section 313 Cr.P.C. There is no force in the plea of the accused revisionists that the prosecution should not have been given an opportunity to prove its documents. It is to be seen that the documents are already on record, and when the case was being remanded, the prosecution could be given an opportunity to prove its those documents which it could not prove earlier. No prejudice is going to be caused to the accused as they have also been provided an opportunity to get their statements recorded under section 313 Cr.P.C. afresh on the additional evidence, and they have also got a right to produce their defence evidence.

In this way, I find no legal error in the remand order passed by the learned Sessions Judge, Lalitpur. This revision has got no force and is liable to be dismissed.

The revision is, dismissed. The judgment and order dated 3.12.1987 passed by the learned Sessions Judge, Lalitpur are confirmed.





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