If Effect of Error Results in “Failure of Justice” Finding, Sentence or Order May Be Reversed or Altered: Uttarakhand High Court

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Facts

A police party on the patrolling duty suspected and apprehended the revisionist on 23.06.2006. Fifteen tortoises were recovered from his possession which he had kept in his bag. An FIR was lodged against him and an investigation was carried out against the same. Based on the reports, the revisionist was framed under Section 39 r.w. 51 of the Wild Life (Protection) Act, 1972 to which he denied and claimed for a trial. He was examined under S. 313 of the Criminal Procedure Code (CrPC). Based on the submissions, by the impugned judgment and order dated 04.10.2013, the revisionist was convicted and sentenced. Feeling aggrieved the revisionist filed the present revision.

Arguments before the Court

The counsel for the revisionist submitted that in the instant case Section 50(4) of the Act has not been complied with, which vitiates the entire trial. It was also argued that the complainant had not been examined. All the witnesses were police personnel, which makes the case doubtful. He further argued that there has been a violation of the mandatory provision of the Act in the instant case because the cognizance of the offence under the Act could have been taken on a complaint as required under Section 55 of the Act, but in the present case, the cognizance had been taken on a challani report, which is bad in the eyes of law and therefore, vitiates the entire trial. The counsel contended that the revisionist deserved to be acquitted on this ground alone.

The counsel on behalf of the State submitted that if an FIR is lodged under the provision of the Act, the investigation may be carried out and even if a complaint is not filed, it would not make any difference. He further contended that the scope of criminal revision is much restricted to the scope of examining the legality and correctness of any finding or sentence. As far as non-examination of public witnesses is concerned, this may not be a ground in the present revision to make any interference.

Court’s Observation

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Based on the submissions and precedent, the Court clearly stated that any procedural irregularity may not automatically vitiate any trial. “Failure of justice” is something more than a mere procedural irregularity. The Court observed that during the trial at no point in time the revisionist raised the plea that the cognizance was not taken and it is a violation of Section 55 of the Act. He also did not take the plea that Section 50(4) of the Act had not been complied with. These grounds were taken neither in the trial nor in the appeal. The Court stated that the procedure for trial for a complaint case is different from the procedure for trial of the cases based on a police report. In the instant case, after filing of challani report, the cognizance was taken and the revisionist was given copies, as required under Section 207 of the Code. He was given all the material collected during the investigation, including the challani report. The revisionist was allowed to explain the circumstances appearing against him in the evidence by recording his statement under Section 313 of the Code. The revisionist chose not to adduce evidence in his defence. Therefore, the Court stated that mere non-compliance of Section 50(4) and 55 of the Wild Life (Protection) Act does not vitiate the trial in the present case.

Court’s Decision

Based on the contentions the Court was of the view that there was no reason to make any interference in the conviction recorded in the case, as confirmed in the appeal. His conviction was recorded on 09.05.2019 and since then he is in jail i.e. for more than two years he is in custody. Having considered all the factors, including the nature of the offence, the age and social positioning of the revisionist, the Court was of the view that it is a case, which warrants interference in so far as the quantum of sentence is concerned. If the sentence is restricted to the period already undergone by the revisionist in the instant case, it would serve the ends of justice. Accordingly, the revision was allowed. The conviction of the revisionist under Section 51 of the Wild Life (Protection) Act, was upheld. The revisionist was sentenced to a period of imprisonment, which he had already undergone in this case. The Court directed that the revisionist be set free unless he’s wanted in any other case.

Click here to view the Judgement.


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