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Judgment
Rakesh Kainthla, Judge
The present revision is directed against the judgment dated 08.01.2014 passed by learned Sessions Judge (Forest), Shimla (learned Appellate Court) vide which the judgment of conviction and order of sentence dated 04.05.2009 passed by learned Judicial Magistrate First Class Jubbal, Camp at Chopal (learned Trial Court) were upheld. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
Briefly stated, the facts giving rise to the present revision are that the police presented a complaint before the learned Trial Court against the accused for the commission of offences punishable under Section 115 read with Section 114 of the HP Police Act, 2007. It was asserted that ASI Sukhvinder Singh (PW2) and SI/SHO Govind Ram were on patrolling duty on 19.09.2007. Accused Rohit Sharma pushed SHO Govind Ram and walked ahead. SHO Govind Ram inquired as to why the accused had done so. The accused started shouting and abusing the police officials. He was found to be drunk. SHO Govind Ram called the police. Constable Rati Ram (PW1) and Constable Subhash (PW4) reached the spot, apprehended the accused, and brought him to the Police Station. The accused continued to shout and abuse the police officials. The police recorded an entry (Ext.PW5/C) in the Police Station. The Medical Officer was not available at Chopal, and the accused was taken to Nerwa, where Doctor J.S. Chahal (PW3) examined the accused and found that he had consumed alcohol, but did not appear to be under its influence. He issued the MLC. (Ext.PW3/A). The police filed a complaint before the Court against the accused.
Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a notice of accusation was put to him for the commission of offences punishable under Sections 114 and 115 of the HP Police Act, to which he pleaded not guilty and claimed to be tried.
The prosecution examined five witnesses to prove its case. Constable Rati Ram (PW1) and Constable Subhash (PW4) reached the spot after Govind Ram had sought help. ASI Sukhvinder Singh (PW2) is an eyewitness. J.S. Chahal (PW3) examined the accused. MHC Prittam Singh (PW5) proved the entries in the daily diary.
The order sheets of the learned Trial Court shows that the matter was listed for prosecution evidence on 04.05.2009. The evidence was not produced, and the learned Trial Court closed the evidence by order of the Court. The order sheet also mentions that the statement of the accused under Section 313 of the Cr.P.C. had been recorded, arguments were heard, and the accused was convicted and sentenced on the same day. However, the record of the learned Trial Court does not contain any statement of the accused under Section 313 of the Cr.P.C.
Learned Trial Court held that the statements of the prosecution’s witnesses corroborated each other. The medical evidence also corroborated the prosecution version that the accused was intoxicated. The accused was hurling filthy abuses and disturbing public peace. Hence, the learned Trial Court convicted the accused of the commission of offences punishable under Sections 114 and 115 of the HP Police Act and sentenced him to undergo simple imprisonment till the rising of the Court and pay a fine of ₹5,000/-, and in default of payment of fine, to undergo simple imprisonment till the rising of the Court.
Being aggrieved by the judgment and order passed by the learned Trial Court, the accused filed an appeal which was decided by the learned Sessions Judge (Forest), Shimla (learned Appellate Court). The learned Appellate Court concurred with the findings recorded by the learned Trial Court that the accused was found drunk at a public place. He was disturbing the public peace. The statements of witnesses corroborated each other, and medical evidence also corroborated their version. The learned Trial Court had rightly convicted and sentenced the accused. There was no infirmity in the judgment and order passed by the learned Trial Court. Hence, the appeal was dismissed.
Being aggrieved by the judgment and order passed by the learned Courts below, the accused has filed the present revision asserting that the learned Courts below erred in appreciating the evidence on record. There was no evidence that the accused was incapable of taking care of himself, which is a requirement under Section 114 of the Police Act. The police had not associated any independent witness. The statements of prosecution witnesses contradicted each other on material aspects. Therefore, it was prayed that the present revision be allowed and the judgment and order passed by learned Courts below be set aside.
I have heard Mr Akshay Gupta, learned vice counsel representing the petitioner/accused and Mr Ajit Sharma, learned Deputy Advocate General for the respondent/State.
Mr Akshay Gupta, learned counsel for the petitioner, submitted that the statements of prosecution witnesses contradicted each other. There was no evidence that the accused was incapable of taking care of himself. Therefore, he prayed that the present revision be allowed and the judgments and order passed by the learned Courts below be set aside.
Mr Ajit Sharma, learned Deputy Advocate General for the respondent/State, submitted that the statements of prosecution witnesses corroborated each other in material particulars. The statements of the prosecution witnesses were also corroborated by the medical evidence in which the accused was found to have consumed alcohol. This Court should not re-appreciate the evidence while deciding the revision. Hence, he prayed that the present revision be dismissed.
I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
It was laid down by the Hon’ble Supreme Court in Kuntegowda v. Thurubaiah, 2026 SCC OnLine SC 1485, that a revisional court does not act as an appellate court and it can only determine the correctness, legality and propriety of the findings, sentence and order recorded by the lower court. It was observed:
“7.Before parting, we would like to accentuate the revisional jurisdiction of the High Courts and the contours and inherent limits while exercising powers as a revisional authority. Section 397 of the Criminal Procedure Code, 1973 (now, Section 438 of Bharatiya Nagarik Suraksha Sanhita, 2023) encapsulates the power of High Courts and Sessions Courts to examine the correctness, legality or propriety of any order passed by an inferior criminal court. The said Section is extracted as hereunder:
“438. 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 as 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 his own bond or bail 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 subsection and of section 439.
(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.”
Discretion in the exercise of revisional jurisdiction should be exercised within the four corners of this section whenever there has been miscarriage of justice. However, while exercising power under this section, the Court does not act as an appellate Court and therefore, while considering the legality, propriety or the correctness of a finding or a conclusion, the revisional court does not and should not dwell upon the facts and the evidence of the case as an appellate Court. The court, in revision, considers the material only to satisfy itself about the correctness, legality and propriety of the findings, sentence and order recorded by the lower court, and should refrain from substituting its conclusion on an elaborate consideration of evidence, and the findings of the lower courts should not be reversed merely on the ground that an alternative view is possible on the facts of the case. In this case, such a position did not also emanate from the evidence on record.
7.1.This Court, in the State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand, (2004) 7 SCC 659: 2004 SCC (Cri) 2003, observed that the High Court, in exercise of its revisional jurisdiction, cannot embark upon an in-depth roving re-examination of the oral evidence and medical evidence and come to a conclusion contrary to the consistent one reached by two courts below. In the facts of the present case, in the impugned judgment, the High Court gravely erred in upsetting the concurrent findings of conviction of the trial court and the Appellate Court by substituting its own conclusions and reasoning on the merits of the case and thereby erred in setting aside the well-reasoned and correct judgment and orders of the trial and appellate courts.
7.2.Upon perusal of the impugned judgment and order dated 06.10.2023, it is apparent that the High Court went into great detail into each of the testimonies, documents and merits of the case, which could have been avoided, especially when the subject matter had come under its revisional jurisdiction. Instead, acting as an appellate Court, the High Court deemed it fit to go into the merits of the case, something which is generally impermissible unless a glaring contradiction is apparent on the face of the record. In State of Kerala v. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452: 1999 SCC (Cri) 275, while considering the scope of the revisional jurisdiction of the High Court, this Court has laid down the following:
“5.… 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 a 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 reappreciate 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 a gross miscarriage of justice. On scrutinising the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation in coming to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the Respondent by reappreciating the oral evidence. …”
The contours for exercise of revisional jurisdiction have been well settled by the judicial dicta of this Court wherein time and again it has been observed that the High Court shall not interfere with the orders of the lower court unless:
The order or finding of the lower court is perverse, grossly erroneous, glaringly unreasonable or wholly unreliable or untenable in law.
The lower court has passed the impugned order after considering immaterial or irrelevant material or no material at all.
There is a non-consideration of any relevant material or the judicial discretion has been exercised arbitrarily or capriciously.
This Court, in Sanjabij Tari v. Kishore S. Borcar, 2025 INSC 1158, in similar facts and circumstances wherein the High Court had reversed concurrent findings of conviction under Section 138 of NI Act, while setting aside the impugned order, observed as under:
“27.It is well settled that in exercise of revisional jurisdiction, the High Court does not, in the absence of perversity, upset concurrent factual findings. This Court is of the view that it is not for the Revisional Court to reanalyse and re-interpret the evidence on record. As held by this Court in Southern Sales & Services v. Sauermilch Design and Handels GMBH, (2008) 14 SCC 457, it is a well-established principle of law that the Revisional Court will not interfere, even if a wrong order is passed by a Court having jurisdiction, in the absence of a jurisdictional error.
28.Consequently, this Court is of the view that in the absence of perversity, it was not open to the High Court in the present case, in revisional jurisdiction, to upset the concurrent findings of the Trial Court and the Sessions Court.”
In the facts of the present case, we find that the High Court has failed to highlight any reason or material satisfaction to the effect that there was any such glaring contradiction or perversity apparent on the face of the record to justify the exercise of the powers under revisional jurisdiction and thereby erred in interfering with the judgment and orders of the courts below. Therefore, the present appeal has to be allowed by setting aside the impugned order of the High Court. In view of the aforesaid discussion, we are of the view that the High Court committed an error in setting aside the order of conviction in exercise of revisional jurisdiction. No sufficient ground has been mentioned by the High Court in its judgment to enable it to exercise its revisional jurisdiction for setting aside the conviction.
The present revision has to be decided as per the parameters laid down by the Hon’ble Supreme Court.
In the present case, the order sheet of the learned Trial Court mentions that the statement of the accused was recorded under Section 313 of the Cr.P.C. However, no such statement is available on record. Even the order sheet does not show whether the accused had opted to produce evidence or not. The index of the papers maintained by the learned Trial Court also does not mention the statement of the accused recorded under Section 313 of the CrPC. Hence, it is a case where the learned Trial Court had not recorded the statement of the accused under Section 313 of the Cr.P.C. In Janak Yadav v. State of Bihar, (1999) 9 SCC 125, the statements of 20 accused were not recorded, and the Hon'ble Supreme Court held that the statement under Section 313 of the Cr.P.C. provides a procedural safeguard for an accused facing the trial to be granted an opportunity to explain the facts and circumstances appearing against him. Where no statement of the accused was recorded, the matter should be remitted to the learned Trial Court for recording the statement of the accused to provide them an opportunity. It was observed at page 126:
5.Section 313 CrPC prescribes a procedural safeguard for an accused facing the trial to be granted an opportunity to explain the facts and circumstances appearing against him in the prosecution's evidence. That opportunity is a valuable one and cannot be ignored. It is not a case of defective examination under Section 313 CrPC where the question of prejudice may be examined but a case of no examination at all under Section 313 CrPC and as such the question whether or not the appellants have been prejudiced on account of that omission is really of no relevance. It was open to the High Court to have either examined the accused, whose statements under Section 313 CrPC had not been recorded, itself under Section 313 CrPC and then proceeded with the hearing of the appeal or directed retrial of the case confined to the stage of recording of the statements of the appellants under Section 313 CrPC, but it was not justified to order the retrial of the entire case by framing de novo charges and examining afresh prosecution evidence. The direction of the High Court to that extent cannot be sustained.
6.We, accordingly, accept this appeal and set aside the order of the High Court to the extent it directs retrial of the case from the stage of framing of the charges and confine the retrial of the case to the stage of the recording of the statements of the appellants, whose statements have not been recorded under Section 313 CrPC. After recording their statements and the defence evidence, if any, the trial court shall pass fresh orders in accordance with law on the basis of the prosecution evidence already on the record and the defence evidence, if any, which the appellants may lead after their examination under Section 313 CrPC. The trial court shall conclude the proceedings expeditiously. The appeals, therefore, succeed to the extent indicated above and are allowed.
In the present case also, the opportunity has not been provided. Therefore, the matter is to be remitted to the learned Trial Court for recording the statement of the accused, providing him an opportunity to produce the evidence, if any, and thereafter decide the matter as per law.
In view of the above, the present revision is allowed, and judgment and order dated 04.05.2009 passed by learned Judicial Magistrate First Class, Jubbal, District Shimla, Camp at Chopal, as affirmed by learned Sessions Judge (Forest), Shimla, H.P. on 08.01.20214 are ordered to be set aside. The matter is remitted to the learned Trial Court for recording the statement of the accused under Section 313 of Cr.P.C. and proceed thereafter as per the law.
The parties through their learned counsel are directed to appear before the learned Trial Court on 16.11.2026.
A copy of this judgment, along with the records of the learned Courts below, be returned forthwith.