2020 Supreme(All) 1142

IN THE HIGH COURT OF ALLAHABAD
Rajeev Misra, J.
Abdul Waheed - Appellants
Vs.
State of U.P. and Ors. - Respondent
Criminal Revision No. 1949 of 2005
Decided On : 10-01-2020

Headnote:

Indian Penal Code - Sections 496, 323, 504, 506 – Criminal Procedure Code - Section 202 - Rigors imprisonment – Anticipatory bail – acquittal of order - It transpires from record that complainant opposite party filed a complaint alleging therein that her husband has performed second marriage with her without disclosing factum of first marriage and having children from first wife - Upon receipt of complaint Magistrate examined complainant opposite party in terms of Section 200 Criminal Procedure Code and her witnesses under Section 202 Criminal Procedure Code Upon evaluation of allegations made in complaint as well as statement of witnesses recorded under Section 202 Criminal Procedure Code Magistrate summoned accused-revisionist under Sections 496, 323, 504, 506 I.P.C - Subsequently vide framing of charge order charges were framed against accused-revisionist for offences under Section 495, 323, 504, 506 I.P.C - Complainant opposite party in order to bring home charges alleged against accused-revisionist adduced herself as P.W. 1 as P.W. 2 Constable as P.W. 3, Chief Pharmacist Hospital as P.W. 4 and Medical Officer as P.W.5. Apart from relying upon oral testimony of above mentioned witnesses complainant opposite party also adduced documentary evidence - Upon appreciation of oral and documentary evidence on record Trial Court Judicial Magistrate vide judgment and order convicted revisionist for an offence punishable under Sections 495 and 323 IPC - Accordingly accused-revisionist was sentenced to two years rigors imprisonment along with fine under Section 495 I.P.C. and further six months rigors imprisonment along with fine under Section 323 I.P.C - Accused-revisionist was however acquitted of charges under Sections 504 and 506 IPC - In case of default accused-revisionist was to undergo further rigors imprisonment for six months - All sentences were to run concurrently – Held, It is an undisputed position that marriage of parties was solemnized - As such a period of more than twenty nine years have rolled bye since then - It is also an undisputed position that revisionist was in service and he superannuated from his service - It is also not evident from record that proceedings for divorce have been initiated by opposite party on account of fraud played by revisionist - Revisionist was convicted by Magistrate vide judgment and order against which criminal appeal was filed and was dismissed - Present criminal revision was taken up - Consequently revisionist has remained under detention - Considering aforesaid facts conviction and sentence awarded by Court below is modified - Accordingly accused-revisionist is granted benefit of sentence already undergone. Since this Court is taking a lenient view by altering the sentence awarded by Courts below therefore compensation is also liable to be imposed - Same is in conformity with law as laid down by Apex Court - While award or refusal of compensation in a particular case may be within Court's discretion there exists a mandatory duty on Court to apply its mind to the question in every criminal case - Application of mind to question is best disclosed by recording reasons for awarding/refusing compensation - It is axiomatic that for any exercise involving application of mind Court ought to have the necessary material which it would evaluate to arrive at a fair and reasonable conclusion - It is also beyond dispute that the occasion to consider question of award of compensation would logically arise only after the court records a conviction of the accused - Capacity of accused to pay which constitutes an important aspect of any order under Section 357 Criminal Procedure Code would involve a certain enquiry albeit summary unless of course the facts as emerging in course of the trial are so clear that the court considers it unnecessary to do so - Such an enquiry can precede an order on sentence to enable the court to take a view both on question of sentence and compensation that it may in its wisdom decide to award to victim or his/her family - Criminal Revision is partly allowed