Court No. - 71

Case :- CRIMINAL REVISION No. - 189 of 1990

Revisionist :- Naresh

Opposite Party :- State of U.P.

Counsel for Revisionist :- S.A.N.Shah

Counsel for Opposite Party :- A.G.A.

Hon'ble Samit Gopal,J.

Matter taken up in the revised list.

Heard Sri S.A.N. Shah, Advocate learned counsel for the revisionist, Sri S.B.

Maurya, learned State counsel and perused the record.

The facts arising out of the present case are that the revisionist has been

convicted and sentenced under Section 7/16 of Prevention of Food Adultration

Act, 1954 for 6 months R.I. and fine of Rs.1000/- and in default of payment of

fine to 3 months further imprisonment vide judgement and order dated

20.09.1988 passed by Judicial Magistrate (Economic Offences), Bareilly in

Criminal Case No.428 of 1986 (State Vs.Naresh and others). Against the said

judgement and order of conviction, an appeal was filed by the revisionist being

Criminal Appeal No.167 of 1988 (Naresh Vs. State of U.P.) which was

dismissed vide judgement and order dated 30.01.1990 passed by Additional

Sessions Judge, VII, Bareilly affirming the said judgment and order of

conviction. The present revision has thus been filed against the said judgment

and orders.

The revisionist was granted bail by this Court and the lower court records were

summoned.

The lower court records were summoned vide order dated 14.07.2014. As per

office report dated 22.3.2022, the lower court record has been received. From

the records it transpires that there is a report dated 27.8.2014 of the Additional

District and Sessions Judge, Court No.4, Bareilly/In-Charge Records Criminal,

Bareilly that the lower court records which were summoned have been weeded

out on 18.01.2007. The records which have been received only contain the

judgment of conviction and sentence, the judgment of Criminal Appeal and

order sheet of the appellante court apart from certain communications to the

High Court, Vakalatnama, Stay Application and bail application.

This Court is thus left with the said two judgments and order only. The incident

in the present case is of the year 1982 which is 40 years since then. The powers

of revision and criminal appeal are identical.

In the case of Sita Ram and others Vs. State; 1981 CriLJ 65, it has been held

that in the absence of original records, it is not possible for the Court to arrive at

a decision that the impugned judgment is supported by the evidence on record

and the order of conviction passed and the sentence imposed on the appellants is

legally justified and proper, where it is not possible to reconstruct the record

which has been lost or destroyed, it is not legally impermissible for the appellate

court to affirm the conviction of the appellant since perusal of the record of the

case is one of the essential elements of the hearing of the appeal. Further in the

case of State of U.P. Vs. Abhay Raj Singh and another; (2004)4 SCC 6, the

Apex Court has held that an effort should be made for reconstruction of the

record at the first instance. If it is possible to have the records reconstructed to

enable the High Court itself to hear and dispose of the appeals in the matter,

rehear the appeals and dispose of the same, on their own merits and in ordering

retrial, interest of justice could be better served - adopt that course. It was further

held that if only reconstruction is not possible to facilitate High Court to hear

and dispose of the appeals and the further course of retrial and fresh adjudication

by Sessions Court is also rendered impossible due to loss of vitally important

basic records - in that case and situation only, the direction given in the

impugned judgment shall operate and the matter shall stand closed.

In the present case, the incident is 40 years old and as such even sending the

matter back for retrial would be only prolonging the litigation and would not

serve any fruitful purpose as the chances of the witnesses not being present and

even the d