P. N. Bakshi, J. - (1.) OPPOSITE Party, Prakash son of Natthan, was convicted of an offence under section 376 IPC and sentenced to 3 years- RI by the Assistant Sessions Judge, Muzaffarnagar vide his order dated 27th April, 1978. His conviction and sentence has been set aside in appeal by the District and Sessions Judge, Muzaffarnagar on 29th July, 1978. Hence this revision.
(2.) A question has been raised in this case, whether a revision by a private party is at all maintainable in this court in a police challani case. Reliance for this purpose is placed upon a decision of Brother M. P. Saxena, J. in Kanhaiya v.Kashi Nath, 1979 AWC 75 where it has been observed that in a case which proceeds upon a police report a private party has no locus standi. I have carefully perused this decision of Brother Saxena, J. It is based upon certain observations, Which have been made by the Supreme Court in Thakur Ram v. State of Bihar, 1966 CrLJ. 700. In that Supreme Court case, the position was that an order of discharge had been passed by the Magistrate which was being challenged by the complainant. The case had proceeded on the basis of police challani report. The relevant facts of that case, insofar as, they concern the point at issue were that successive attempts were being made by the complainant to get the accused committed to the court of sessions. The first attempt having failed, second attempt was made for the same purpose on the same facts 15 months later. The second attempt having failed a third attempt was made again by the complainant for getting the case committed to the court of sessions. Even this third attempt failed. By then the entire defence evidence had closed and the arguments had been heard. The case was over and judgment had to be pronounced. It was at that stage that a revision was filed not by the State, but by the private party before the Sessions Judge, who ordered commitment of the accused to the court of sessions. The matter then came up to the High Court. This court made an observation that the Sessions Judge was not unjustified in making the order which he had made. It was in this background of circumstances, that the Supreme Court had made an observation that if a private party approaches the court by way of a revision, then the revisional court will not lose sight of the fact that criminal law is not to be used as an instrument of wrecking private vengeance on an aggrieved party. It is true that the Supreme Court has held in that case that the private party has no locus standi but at the same time, it has also been observed in the very next sentence as follows : "No doubt the terms of section 435 CrPC under which the jurisdiction of the learned Sessions Judge was invoked are very wide and he could have taken up the matter suo moto". This implies that the revisional court can interfere either when a revision is filed before it or suo moto. This legal position is also obvious from a mere perusal of Section 401 CrPC, which runs as follows :- "In case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court, may in its discretion exercise any of the powers conferred on a court of Appeal by Sections 386, 389, 390 and 391..............." It is thus clear that the power of the High Court to interfere in revision is unfettered. If the interference is suo moto on a perusal of the record called for by it, the cause of justice is the deciding factor. If, however, jurisdiction of this court, is invoked by a private party even then the cause of justice would be a deciding factor but while exercising its jurisdiction, this court would not lose sight of the fact that the attempt of the private party to approach this court in revision may be mala fide and may be motivated by a desire to wreck vengeance rather than to set the machinery of law into motion in accordance with law. In the latter case, the High Court may not consider it just and proper to interfere on the revision of the private party. In this very connection I would also like to refer to another decision of the Supreme Court-K. Chinnaswami Reddy v. State of Andhra Pradesh, AIR 1962 SC 1978, wherein the following observations had been made : " It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, wherein there is some glaring defect in the procedure, or there is a manifest error on a point of law. Consequently there has been a flagrant miscarriage of justice. " Considering the above law on the subject, I am of the opinion that the jurisdiction of the High Court to entertain a criminal revision filed by a private party in a police challani case is not barred. It would be a different matter if the High Court refuses to exercise its revisional jurisdiction to set aside that order, but the competence of the High Court to entertain such an application can not be challenged. The manner in which any irregularity or illegality is brought to the notice of this court, while it proceeds suo moto is not of much consequence. I find no difficulty in holding that the information which is conveyed by a private party through the medium of a revision can be taken to be such information which has otherwise come to the knowledge of the High Court as contemplated under section 401 CrPC. In passing I may add that Brother Saxena, J. while relying upon the decision reported in 1966 CrLJ 700 and holding that the private party has no locus standi to file a revision, has himself considered the revision on the merits and given a decision thereon. This obviously implies that this Court had taken suo moto action on the information conveyed to him by the private party. In my opinion, therefore there is no conflict between me and Brother Saxena, J. on the question of law involved in this case.
(3.) COMING now to the merits of the case, learned counsel for the opposite party has submitted that since a finding has been recorded by the courts below that the prosecution story that the accused had taken the girl Kusum by inducement on 4-3-73 was not true, since Smt. Shanti, her mother was not at all present on the place and the prosecution version that she permitted her daughter to go with the accused on hearing that her husband had sustained injuries in village Kakrail was unbelievable. Therefore, on the basis of this finding, the accused should be acquitted and the case should not be remanded back. He has also argued that so far as the age of the applicant is concerned, the evidence on the record does not establish that she was a minor on the date of the alleged offence. In my opinion, these submissions will not carry the applicant very far. So far as the question of age of the girl is concerned, both the courts below have recorded a finding of fact that the girl was aged about 14/15 years in 1973 when the offence is alleged to have been committed. For this purpose they have considered the oral and documentary evidence on the record. They have also considered the medical evidence and the School leaving certificate and the oral testimony. It is not the function of this Court sitting in revision to re-assess the entire evidence and to reverse pure findings of fact. The Supreme Court has clearly ruled that such a procedure is not warranted in law. It is, therefore, not possible for me to upset a finding of fact on the reassessment of the evidence on the record and to come to a different conclusion. I, therefore, accept that the finding given by the courts below that the girl was 14/15 years of age on 4th March, 73 when she left the house of her parent, is correct and acceptable.;