Himachal Pradesh High Court
Reserved On: 28.6.2025 vs Govinder Singh And Another on 8 July, 2025
2025:HHC:21728
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 293 of 2022
Reserved on: 28.6.2025
.
Date of Decision: 08.07.2025
Tejinder Singh ...Petitioner
Versus
Govinder Singh and another ...Respondents
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner : Mr. R.L. Sood, Senior Advocate,
with Mr. Y.P. Sood, Advocate.
For Respondent No.1 : Mr. Ajay Kochhar, Senior
Advocate, with Mr. Varun
Chauhan, Advocate.
For Respondent No.2 : Mr. Rajiv Sirkeck, Advocate.
For respondent No.3/State : Mr. Ajit Sharma, Deputy
Advocate General.
Rakesh Kainthla, Judge
The present revision is directed against the judgment
dated 30.11.2021, passed by learned Sessions Judge, (Forests),
Shimla, District Shimla, H.P. (learned Appellate Court), vide
which the judgment dated 28.8.2015, passed by learned Judicial
Magistrate First Class, Court No.6, Shimla, H.P. (learned Trial
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Court) was upheld. (Parties shall hereinafter be referred to in the
same manner as they were arrayed before the learned Trial Court for
convenience.)
.
2. Briefly stated, the facts giving rise to the present
revision are that the police filed a charge sheet before the learned
Trial Court against the accused for the commission of offences
punishable under Sections 420, 467, 468, 471 and 120-B of the
Indian Penal Code (IPC).
3. to
It was asserted that the complainant, Tejinder Singh
(PW1), made a complaint (Ex.PW1/A) stating that the accused,
Govinder Singh, purchased two parcels of land in Village
Durgapur, Pargana Chota bal, Tehsil Suni, District Shimla, HP,
vide two separate sale deeds dated 10.4.2008 and 24.6.2008. Two
Krishak Praman Patras (agriculturist certificates)-one dated
13.11.2007 and another dated 10.6.2008, were attached to the sale
deeds. One Krishank Praman Patra, dated 13.11.2007, was
purportedly issued by the Patwari, Patwar Circle Malat, Sub
Tehsil Kupvi, District Shimla and another Krishak Praman Patra,
dated 10.6.2008, was purportedly issued by Patwari Patwar Circle
Madhana. Ram Lal Sharma (PW2) was posted as Patwari in
Charoli on 13.11.2007. He did not issue the Krishak Praman Patra
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and stated that Govinder Singh did not own any land in Chak
Dochi, Patwar Circle Malat, Sub Tehsil Kupvi. Similarly, Lachmi
Singh (PW20), who is stated to have issued Krishak Praman
.
Patra, dated 10.4.2008, denied that he had issued Krishak
Praman Patra. There was no Chak Dochi in Patwar Circle, Malat.
Govinder Singh did not have any land in Village Dochi, Patwar
Circle Malat, and he was not a resident of said place. Govinder
Singh was not a bona fide agriculturist, and he fabricated Krishak
Praman Patras dated 13.11.2007 and 10.6.2008 attached to the
sale deeds dated 10.4.2008 and 24.6.2008. He had no right to
purchase the land as per the provisions of Section 118 of the H.P.
Tenancy and Land Reforms Act (Tenancy Act). Therefore, it was
prayed that the action be taken as per the law.
4. The police registered an FIR and conducted the
investigation. SI Shyam Sunder (PW27) conducted the initial
investigation. He wrote an application (Ex.PW27/A) to inquire
whether Village/Chak Dochi falls within the jurisdiction of
Patwar Circle Madhana. Udey Singh (PW14), Naib Tehsildar,
issued a report (Ex.PW14/A) that the said chak did not fall in the
Patwar Circle of Madhana. Inspector Shyam Sunder also obtained
a certificate (Ex.PW25/D) from the Patwari. Inspector Shyam
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Sunder wrote another application (Ex.PW27/B) to Naib Tehsildar,
Kupvi, to inquire whether Govinder Singh was a resident of
Village Dochi and whether he had any land in the village. A letter
.
(Ex.PW15/A) was issued by Mela Ram, Patwari that Govinder
Singh does not own any land in Mohal Dochi. Inspector Shyam
Sunder filed an application (Ex.PW27/C) for obtaining copies of
the mutation from the Tehsildar, Suni. Karam Singh, Naib
Tehsildar (PW21), issued certified copies of mutation no. 110
(Ex.PW21/A and Ex.PW21/A1) and mutation no. 111 (Ex.PW21/B
and Ex.PW21/B1). Certified copies of the sale deeds (Ex.PW11/B
and Ex.PW11/C) were also obtained. Jai Singh (PW28) conducted
further investigation. He interrogated Govinder Singh, who
revealed that Rajinder Maheshwari had prepared the Krishak
Praman Patra. Rajinder Maheshwari revealed during
interrogation that he had talked to Kahan Chand (accused), and
Kahan Chand had got the certificates prepared by Mast Ram,
Patwari. It was found that Mast Ram had died. Puran Chand was
associated, and a search of the house of Mast Ram was
conducted. An application (Ex.PW4/A) was recovered, which was
seized vide memo (Ex.PW3/A). An application (Ex.PW18/A) was
filed to obtain the death certificate of Mast Ram, and death
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certificate (Ex.PW18/B) was issued. Rapat Rojnamcha (Ex.PW4/C)
was seized vide memo (Ex.PW4/B). Rapat Rojnamcha of the year
2007-08 (Ex.PW24/A) was seized vide memo (Ex.PW17/A). The
.
seal impressions (Ex.PW25/E1, Ex.PW25/E2 and Ex.PW17/B) were
taken on separate pieces of paper. Original Krishak Praman Patra
(Ex.PW11/A) and its photocopy (Mark-A) were seized vide memo
(Ex.PW5/A). Two admitted handwriting of Devinder Singh and
Rajinder Maheshwari were seized vide memos (Ex.PW10/B and
Ex.PW10/C). The standard handwriting of Govinder Singh
(Ex.PW10/B) and Rajinder Maheshwari (Ex.PW10/D1 to
Ex.PW10/D4) were seized vide memos (Ex.PW10/B and
Ex.PW10/C). Specimen signatures and handwriting of Kahan
Chand (Ex.PXY-1 to Ex.PXY-14) were obtained in the presence of
learned Judicial Magistrate First Class. These were sent to FSL,
Junga, and the results (Ex.PW25/F and Ex.PW25/G) were issued.
The statements of witnesses were recorded as per their version,
and after completion of the investigation, a challan was prepared
and presented before the learned Trial Court.
5. Learned Trial Court charged accused Govinder Singh
with the commission of offences punishable under Sections 120-
B, 420, 467, 468 and 471 of IPC and accused Kahan Chand with
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the commission of offences punishable under Sections 120-B,
201, 467 and 468 of IPC, to which they pleaded not guilty and
claimed to be tried.
.
6. The prosecution examined 28 witnesses to prove its
case. Tejinder Singh (PW1) is the complainant/informant. Ram
Lal Sharma (PW2) was posted as Patwari in Patwar Circle, Malat.
Begmu Devi (PW3) is the wife of Mast Ram and the witness to the
recovery. Puran Chand (PW4) is the witness to the search of the
house of Mast Ram. Hans Raj (PW5) is the witness of the recovery
of Krishak Praman Patra. Manohar Lal (PW6) is the seller of the
land. Padam Singh (PW7) was posted as Naib Tehsildar/Sub
Registrar, Suni. He registered the sale deed. Ram Lal (PW8) is the
witness to the recovery of Krishak Praman Patra by the police.
Maan Singh (PW9) was posted as Tehsildar/Sub Registrar, Suni,
who registered the sale deed. HC Shiv Kumar (PW10) is the
witness to recovery. Hem Singh (PW11) was posted as a
Registration Clerk who produced Krishak Praman Patra. Bhoom
Prakash (PW12) is the witness to the sale deed. Diwan Singh
(PW13) identified Manohar Lal as the seller before the Sub
Registrar. Uday Singh (PW14) was posted as Naib Teshildar and
issued the report. Mela Ram (PW15) was posted as Patwari in
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Patwar Circle, Kupvi and issued the report. Prem Prakash (PW16)
did not support the prosecution’s case. Tilak Raj (PW17) is the
witness to recovery. Dharam Prakash (PW18) was posted as
.
Secretary and is the witness of the recovery of the death
certificate. HC Shiv Kumar (PW19) sent the documents to FSL for
comparison. Lachmi Singh (PW20) was posted as Patwari in
Patwar Circle, Madhana, and proved that he had not issued
Krishak Praman Patra in favour of Govinder Singh. Karam Singh
(PW21) produced certified copies of Mutation Nos. 110 and 111.
Rajinder Dutt (PW22) was posted as Naib Tehsildar, Kupvi and
issued a report regarding the land owned by Govinder Singh. Bal
Krishan (PW23) introduced Govinder Singh to Manohar Lal and
witnessed the sale deed. HHC Tek Singh (PW24) is the witness to
the recovery of Rojnamcha. Dr. Jagjit Singh (PW25) is the
Scientific Officer who examined the documents. ASI Dilu Ram
(PW26) proved the FIR. Inspector Shyam Sundar (PW27) and Jai
Singh (PW28) conducted the investigation.
7. The accused, in their statements recorded under
Section 313 of Cr.P.C., denied the prosecution’s case in its
entirety. Accused Kahan Chand stated that he had never met
accused Govinder Singh, and he was not posted at Madhana or
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Malat. A false case was made against him. Accused Govinder
Singh admitted that he had purchased the land from Manohar
Lal. A Sale Deed was executed in his favour. He denied that he had
.
produced the agriculturist certificate. He stated that a false case
was made against him by Tejinder Singh, who is his brother. He
had left the country in 1979. The informant tried to grab his
share in Knollswood, Chhotta Shimla. This property was
purchased by his father on 26.11.1956. A portion of the property
was sold on 8.1.1980 to the Himachal Pradesh Housing Board. He
was recorded as the owner of the sold property. The sold property
was also recorded as forest, trees, and orchard that existed over
the land. Grass and usufructs were also sold. The entire land was
agricultural property. On 30.9.1988 and 12.9.2014. The
Government issued two notifications vide which he became an
agriculturist. Several criminal and civil litigations were pending
between him and the informant. He and the informant were
agriculturists, and this fact was not investigated by the police.
The police did not consider the material which was provided by
him. Rajinder Maheshwari was appointed as a Special Power of
Attorney. He connived with the informant. Statements of Leela
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Sandal (DW1), Jai Ram (DW2), Constable Madan Lal (DW3), Geeta
Ram (DW4) and Krishankant (DW5) were recorded in defence.
8. Learned Trial Court held that Manohar Lal nowhere
.
stated that accused Govinder Singh had deceived him or
dishonestly induced him to sell the property. Rather, he stated
that he had sold the property to Govinder Singh for valid
consideration. The prosecution’s case that Krishak Praman Patra
was produced along with sale deeds was highly doubtful. As per
the witnesses, the documents are pasted on the file; however, the
memo (Ex.PW5/A) mentioned the word ‘Nathi’, which means
tagged. This made the whole case doubtful that Krishak Praman
Patras were attached to the sale deeds. The link evidence was not
proved, and the integrity of the case property from the time of
seizure till analysis was not established. Therefore, it was not
possible to rely upon the report of the FSL. Hence, the accused
were acquitted.
9. Being aggrieved by the judgment of the learned Trial
Court, the State filed an appeal which was decided by the learned
Sessions Judge (Forests), Shimla (learned Appellate Court), who
concurred with the findings recorded by the learned Trial Court
that Manohar Lal was not cheated by Govinder Singh. It was not
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proved on record that agriculture certificates were annexed to
the sale deed. The integrity of the case property was not
established, and it was not possible to rely upon the report of
.
FSL. Learned Trial Court had taken a reasonable view, and no
interference was required with the judgment passed by the
learned Trial Court. Hence, the appeal was dismissed.
10. Being aggrieved by the judgments passed by learned
Trial Courts below, the complainant has filed the present
revision asserting that learned Courts below recorded their
findings by ignoring the material evidence on record. It was
specifically proved on record that the forged agricultural
certificate (Mark-A and Ex.PW11/A) were produced with the sale
deeds before the Sub Registrars Padam Singh (PW7) and Maan
Singh (PW9). They signed the certificates. The certificates were
stated to have been issued by the Patwaris and countersigned by
Naib Tehsildar. Ram Lal Sharma (PW2) and Lachmi Singh
(PW20) categorically stated that they never issued any
agriculturist certificate in favour of the accused Govinder Singh.
Mela Ram (PW15) also stated that the accused did not own any
land in Nerwa. The learned Courts below did not appreciate this
aspect. Proceedings for violation of Section 118 of the H.P.
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Tenancy and Land Reforms Act were initiated against the
accused before the District Collector, Shimla, who conducted a
detailed inquiry and concluded that the agriculturist certificates
.
were forged. Hem Singh (PW11) proved that the certificates were
taken from the official records. Learned Courts below erred in
holding that the certificates were not mentioned in the list of
documents and the statements of the Sub Registrars could not be
relied upon. Sub-Registrars categorically stated that certificates
were produced at the time of registration of the sale deed.
Learned Trial Court failed to assign legal reasons while
acquitting the accused, and the learned Appellate Court failed to
exercise the jurisdiction vested in it. The appeal was decided in a
slipshod manner. Statement of Jagjit Singh, Handwriting Expert,
was wrongly ignored. Opportunity of hearing was denied to the
informant by the learned Appellate Court. Therefore, it was
prayed that the present revision be allowed, the judgments
passed by learned Courts below be set aside, and the accused be
convicted of the commission of the charged offences.
11. An application (Cr.MP No. 1517 of 2023) for producing
a certified copy of the order dated 23.7.2014, passed by the
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learned District Collector, Shimla, was also filed, which was
opposed by the accused.
12. I have heard Mr. R.L. Sood, learned Senior Counsel
.
assisted by Mr. Y.P. Sood, learned counsel for the
petitioner/informant, Mr. Ajay Kochhar, learned Senior Counsel,
assisted by Mr. Varun Chauhan, learned counsel, for
respondent/accused No.1, Mr. Rajiv Sirkeck, learned counsel for
respondent no. 2/accused No.2 and Mr. Ajit Sharma, learned
Deputy Advocate General, for respondent No.3/State.
13. Mr. R.L. Sood, learned Senior counsel for the
petitioner/informant, submitted that the learned Courts below
erred in appreciating the evidence. They held that Govinder
Singh had not cheated the seller Manohar Lal. The prosecution
never projected the case before the learned Courts below that the
accused, Govinder Singh, had cheated Manohar Lal. Rather, the
case was that Govinder Singh had produced the forged
agriculturist certificates and got the sale deed registered, which
could not have been registered in his favour. The State of
Himachal Pradesh was cheated in this manner. Sub-Registrars
categorically stated that the certificates were annexed to the sale
deeds. These were seized by the police from the office of the Sub
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Registrar. The accused came with the defence that the
agriculturist certificates were implanted by the
complainant/informant, and the burden was upon him to prove
.
this fact. They even led the evidence, but it was not sufficient to
prove their defence. Learned Courts below have taken a perverse
view, and this Court should interfere with the same by setting
aside the judgments. He relied upon the judgments titled Virender
Sharma Vs. Neeraj Kumar 2024:HHC:6379 and Joseph Stephen and
others Vs. Santhanasamy and others, Criminal Appeal Nos. 90-93 of
2022, decided on 25.1.2022 in support of his submission.
14. Mr. Ajay Kochhar, learned Senior Counsel for
respondent/accused No.1 submitted that respondent/accused
No.1 is innocent and he was falsely implicated due to the property
dispute between the informant and accused No.1. It is undisputed
that the father of the informant and accused No.1 was the owner
of the property known as Knollswood. Therefore, as per the
clarification issued by the State Government, the accused No.1
was an agriculturist. The Sub Registrars categorically stated that
they had seen the documents of Knollswood and had satisfied
themselves about the agriculturist status of accused No.1. It was
not proved on record that agriculturist certificates were
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produced with the sale deed. The petitioner has sought the
conviction of the accused, which is not permissible in a revision
against acquittal. Therefore, he prayed that the present petition
.
be dismissed. He relied upon the judgments titled Mahabir and
others Vs. State of Haryana 2025:INSC:120, Bindeshwari Prasad
Singh Vs. State of Bihar 2002 (6) SCC 650, Joseph Stephen and others
Vs. Santhanasamy and others 2022 SCC OnLine SC 90, Malkeet
Singh Gill Vs. State of Chhattisgarh 2022 (8) SCC 204, Kishan Rao Vs.
Shankargouida 2018 (8) SCC 165, State of Gujarat Vs. Dilip Singh
Kishor Singh Rao 2023 (17) SCC 688, Surender Sharma Vs. State,
2025 0 Supreme (HP) 280 and Joginder Singh Vs. Ramesh Chauhan,
2025 0 Supreme (HP) 252 in support of his submission.
15. Mr. Rajiv Sirkeck, learned counsel for
respondent/accused No.2, submitted that there is no evidence
against accused No.2, Kahan Chand. The report of the
handwriting expert is not sufficient to record a conviction. The
integrity of the case property was not established. Therefore, he
prayed that the present petition be dismissed. He relied upon the
judgment titled Murarilal v. State of M.P. AIR 1980 SC 531 in
support of his submission.
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16. Mr. Ajit Sharma, learned Deputy Advocate General, for
the respondent-State, supported the submissions of Mr. R.L.
Sood, learned Senior Counsel for the petitioner/informant.
.
17. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
18. Before adverting to the merits of the revision, it is
necessary to dispose of an application (Cr.MP No. 1517 of 2023)
for placing on record the order dated 23.07.2014 passed by the
District Collector in the proceedings initiated under Section 118
of the Tenancy Act. This order was passed on 23.7.2014. Learned
Trial Court delivered the judgment on 28.8.2015, and learned
Appellate Court delivered the judgment on 30.11.2021. Therefore,
this document was in existence at the time of delivery of the
judgments by the learned Trial Court and the learned Appellate
Court.
19. The application was filed under Section 482 of Cr.P.C.,
whereas it should have been filed under Section 391 of Cr.P.C.,
which deals with the additional evidence and applies to the
revision as per Section 401 (1) of CrPC.
20. It was laid down by the Hon’ble Supreme Court in
State of Rajasthan v. Asharam, 2023 SCC OnLine SC 423, that
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Sections 311 and 391 of Cr. P.C. deal with the power of the Court to
take additional evidence. Section 311 deals with the trial, while
Section 391 deals with the appeal. The Appellate Court can
.
examine the evidence, but it does not possess the wide powers
conferred upon the Trial Court. It was observed:
“6. Both Sections 311 and 391 of the Cr. P.C. relate to the
power of the court to take additional evidence; the former
at the stage of trial and before the judgment ispronounced; and the latter at the appellate stage after
judgment by the trial court has been pronounced. It may
not be totally correct to state that the same considerations
would apply to both situations, as there is a difference inthe stages. Section 311 of the Cr. P.C. consists of two parts;
the first gives power to the court to summon any witness
at any stage of inquiry, trial or other proceedings, whether
the person is listed as a witness, or is in attendance thoughnot summoned as a witness. Secondly, the trial court has
the power to recall and re-examine any person already
examined if his evidence appears to be essential to the just
decision of the case. On the other hand, the discretionunder Section 391 of the Cr. P.C. should be read as
somewhat more restricted in comparison to Section 311 of
the Cr. P.C., as the appellate court is dealing with an
appeal, after the trial court has concluded with regard tothe guilt or otherwise of the person being prosecuted. The
appellate court can examine the evidence in depth and
detail, yet it does not possess all the powers of the trial
court, as it deals with cases wherein the decision has
already been pronounced.”
21. It was laid down in Sukhjeet Singh v. State of U.P.,
(2019) 16 SCC 712: (2020) 2 SCC (Cri) 434: 2019 SCC OnLine SC 72,
that the additional evidence can be taken by the Appellate Court if
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the evidence is necessary for just determination of the case,
however, Section 391 cannot be used for retrial. The order should
not be made if the party had sufficient opportunities and had not
.
availed itself. It was observed at page 721:
“22. Chapter XXIX of the Code of Criminal Procedure, 1973
deals with “Appeals”. Section 391 CrPC empowers the
appellate court to take further evidence or direct it to be
taken. Section 391 is as follows:
“391. The appellate court may take further evidence or
direct it to be taken. — (1) In dealing with any appeal
under this Chapter, the appellate court, if it thinks
additional evidence to be necessary, shall record itsreasons and may either take such evidence itself, or
direct it to be taken by a Magistrate, or when the
appellate court is a High Court, by a Court of Session
or a Magistrate.
(2) When the additional evidence is taken by the
Court of Session or the Magistrate, it or he shall
certify such evidence to the appellate court, and suchcourt shall thereupon proceed to dispose of the
appeal.
(3) The accused or his pleader shall have the right to
be present when the additional evidence is taken.
(4) The taking of evidence under this section shall be
subject to the provisions of Chapter XXIII, as if it
were an inquiry.”
23. The key words in Section 391(1) are “if it thinks
additional evidence to be necessary”. The word
“necessary” used in Section 391(1) is to mean necessary
for deciding the appeal. The appeal has been filed by the
accused, who have been convicted. The powers of the
appellate court are contained in Section 386. In an appeal
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from a conviction, an appellate court can exercise power
under Section 386(b), which is to the following effect:
“386. (b) In an appeal from a conviction–
(i) reverse the finding and sentence and acquit or
.
discharge the accused, or order him to be re-tried by
a court of competent jurisdiction subordinate to
such appellate court or committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the
nature or the extent, or the nature and extent, of the
sentence, but not so as to enhance the same;”
24. Power to take additional evidence under Section 391 is,
thus, with an object to appropriately decide the appeal by
the appellate court to secure ends of justice. The scope and
ambit of Section 391 CrPC has come up for consideration
before this Court in Rajeswar Prasad Misra v. State of
W.B. [Rajeswar Prasad Misra v. State of W.B., AIR 1965 SC
1887: (1965) 2 Cri LJ 817] Hidayatullah, J., speaking for the
Bench held that a wide discretion is conferred on the
appellate courts and the additional evidence may be
necessary for a variety of reasons. He held that additional
evidence must be necessary not because it would be
impossible to pronounce judgment but because there would
be a failure of justice without it. The following was laid down
in paras 8 and 9: (AIR p. 1892)
“8. … Since a wide discretion is conferred on
appellate courts, the limits of that court’s
jurisdiction must obviously be dictated by the
exigency of the situation and fair play and good
sense appear to be the only safe guides. There is, no
doubt, some analogy between the power to order a
retrial and the power to take additional evidence.
The former is an extreme step appropriately taken if
additional evidence will not suffice. Both actions
subsume failure of justice as a condition precedent.
There, the resemblance ends, and it is hardly proper
to construe one section with the aid of observations
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made by this Court in the interpretation of the other
section.
9. Additional evidence may be necessary for a variety
of reasons, which it is hardly necessary (even if it
.
were possible) to list here. We do not propose to do
what the legislature has refrained from doing,
namely, to control the discretion of the appellate
court under certain stated circumstances. It may,
however, be said that additional evidence must be
necessary not because it would be impossible to
pronounce judgment but because there would be a
failure of justice without it. The power must be
exercised sparingly and only in suitable cases. Once
such action is justified, there is no restriction on the
kind of evidence which may be received. It may be
formal or substantial. It must, of course, not be
received in such a way as to cause prejudice to the
accused, as, for example, it should not be received as
a disguise for a retrial or to change the nature of the
case against him. The order must not ordinarily be
made if the prosecution has had a fair opportunity
and has not availed of it unless the requirements of
justice dictate otherwise.”
25. This Court again in Rambhau v. State of
Maharashtra [Rambhau v. State of Maharashtra, (2001) 4
SCC 759: 2001 SCC (Cri) 812] had noted the power under
Section 391 CrPC of the appellate court. The following was
stated in paragraphs 1 and 2: (SCC p. 761)
“1. There is a very wide discretion available in the
matter of obtaining additional evidence in terms of
Section 391 of the Code of Criminal Procedure. A
plain look at the statutory provisions (Section 391)
would reveal the same…
2. A word of caution, however, ought to be
introduced for guidance, to wit: that this additional
evidence cannot and ought not to be received in such
a way as to cause any prejudice to the accused. It is
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not a disguise for a retrial or to change the nature of
the case against the accused. This Court in Rajeswar
Prasad Misra v. State of W.B. [Rajeswar Prasad
Misra v. State of W.B., AIR 1965 SC 1887: (1965) 2 Cri LJ
817] in no uncertain terms observed that the order
.
must not ordinarily be made if the prosecution has had
a fair opportunity and has not availed of it. This Court
was candid enough to record, however, that it is the
concept of justice which ought to prevail, and in the
event, the same dictates exercise of power as
conferred by the Code, there ought not to be any
hesitation in that regard.”
26. From the law laid down by this Court as noted above, it
is clear that there are no fetters on the power under
Section 391 CrPC of the appellate court. All powers are
conferred on the court to secure the ends of justice. The
ultimate object of judicial administration is to secure the
ends of justice. The court exists for rendering justice to the
people.” (Emphasis supplied)
22. This position was reiterated in State (NCT of Delhi) v.
Pankaj Chaudhary, (2019) 11 SCC 575: (2019) 4 SCC (Cri) 264: 2018
SCC OnLine SC 2256, and it was held that this power should not be
exercised to fill up the gaps by the other side and especially to
reverse the judgment of learned Trial Court. It was observed at
page 586:
“25. The High Court observed that the trial court erred in
saying that the accused failed to prove the making of
previous complaints against the prosecutrix. While saying
so, the High Court referred to certain complaints made
against the prosecutrix, including the one allegedly given
on 21-7-1997, which were produced by the Bar at the time
of arguments. The power conferred under Section 391 CrPC
is to be exercised with great care and caution. In dealing::: Downloaded on – 08/07/2025 21:27:52 :::CIS
21
2025:HHC:21728with any appeal, the appellate court can refer to the
additional evidence only if the same has been recorded as
provided under Section 391 CrPC. Any material produced
before the appellate court to fill in the gaps by either side
cannot be considered by the appellate court; more so, to.
reverse the judgment of the trial court.”
23. Similarly, it was held in H.N. Jagadeesh v. R.
Rajeshwari, (2019) 16 SCC 730: (2020) 2 SCC (Cri) 450: (2020) 2 SCC
(Civ) 758: 2017 SCC OnLine SC 1813, that where the complainant
had failed to produce the notice before the learned Trial Court, he
could not be permitted to lead the evidence before the learned
Appellate Court to prove it. It was observed at page 731:
“6. We are unable to agree with this approach of the High
Court, in the facts of this case, which is inappropriate in
law. The service of the statutory notice calling upon thedrawer of the cheque (after it has been disowned) to pay
the amount of the cheque is a necessary precondition for
filing the complaint under Section 138 of the Act.
Therefore, it was incumbent upon the respondent to
produce the said statutory notice on record to prove thesame as well. In this case, this document was not even filed
by the respondent along with the complaint, and the
question of proving the same was, therefore, a far cry. In acase like this, we fail to understand how the aforesaid
omission on the part of the respondent in not prosecuting
the complaint properly could be ignored, and another
chance could have been given to the respondent to prove
the case by producing further evidence. It amounts to
giving an opportunity to the respondent to fill up the
lacuna.”
24. It was laid down in Rajvinder Singh v. State of Haryana,
(2016) 14 SCC 671: (2016) 4 SCC (Cri) 421: 2015 SCC OnLine SC 971
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that where it was possible to examine the Forensic Expert at the
trial stage, an application to examine him at the appellate stage
cannot be allowed. It was observed at page 677
.
“12. At the outset, we must deal with submissions as
regards the application for leading additional evidence at
the appellate stage. It has been the consistent defence ofthe appellant that the dead body found in agricultural
fields in District Muzaffarnagar was that of Pushpa Verma,
and he went to the extent of producing a photograph of the
dead body in the present trial. He also examined Brahm PalSingh, Sub-Inspector and other witnesses. It was certainly
possible to examine a forensic expert at the trial court
stage itself, and the High Court was right and justified inrejecting the prayer to lead additional evidence at the
appellate stage. Nonetheless, we have gone through thereport of the said forensic expert engaged by the appellant.
The exercise undertaken by that expert is to start with the
admitted photograph of Pushpa Verma on a computer,then remove the “bindi” by some process on the
computer, then by same process remove her spectacles
and by computer imaging change the image as it wouldhave looked if the lady was lying down in an injured
condition. The computer image so changed was thencompared with the photograph of the dead body. We have
seen both the images, and we are not convinced at all
about any element of similarity. We do not, therefore, seeany reason to differ from the view taken by the High
Court.”
25. It was held in Ajitsinh Chehuji Rathod v. State of
Gujarat, (2024) 4 SCC 453: 2024 SCC OnLine SC 77, that the power
under Section 391 of Cr.P.C. can be exercised when the party was
prevented from presenting the evidence despite the exercise of
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due diligence or the facts giving rise to such prayer came to light
during the pendency of the appeal. It was observed at page 455:
“8. At the outset, we may note that the law is well-settled
.
by a catena of judgments rendered by this Court that power
to record additional evidence under Section 391CrPC
should only be exercised when the party making suchrequest was prevented from presenting the evidence in the
trial despite due diligence being exercised or that the facts
giving rise to such prayer came to light at a later stage
during pendency of the appeal and that non-recording of
such evidence may lead to failure of justice.”
26.
In the present case, it was mentioned in para 7 of the
application that the copy of the order could not be placed despite
due diligence because the State was prosecuting the accused, and
it failed to produce the order of the District Collector on record.
This is no reason. The applicant was a complainant before the
learned Trial Court. He had filed the complaint before the District
Collector. His counsel represented him before the learned District
Collector, and he was aware of the fact that the judgment was
delivered by the learned District Collector. Therefore, he should
have brought it to the notice of the learned Public Prosecutor that
such a judgment was delivered, and he cannot take shelter
behind the plea that the document was required to be produced
by the State, which had failed to produce it.
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27. Even otherwise, the document is not relevant.
Sections 40 to 44 of the Indian Evidence Act deal with the
admissibility of the judgments of the Court. Section 40 provides
.
that a judgment, order or decree which prevents any Court from
taking cognisance or holding a trial is relevant. It is not the case
of the applicant that the judgment passed by the District
Collector prevents the Court from taking cognisance or holding a
trial. Thus, it does not fall within the purview of Section 40 of the
Indian Evidence Act. Section 41 of the Indian Evidence Act deals
with the judgments delivered by probate, matrimonial, admiralty
or insolvency jurisdiction. District Collector does not fall within
the definition of any of these Courts. Hence, the judgment is not
admissible under Section 41 of the Indian Evidence Act. Section
42 of the Indian Evidence Act deals with judgments, orders or
decrees if they relate to a matter of public nature relevant to the
inquiry. The judgment of the District Collector does not deal with
a matter of public nature, and the judgment is not admissible
under Section 42 of the Indian Evidence Act. Section 43 provides
that judgments, orders or decrees other than those mentioned in
Sections 40, 41 and 42 are irrelevant unless the existence of such
judgment, order or decree is a fact in issue or relevant fact in
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some other provision of the Act. It was held in Jagdish Chandra
Soni v. State of Rajasthan, 1998 SCC OnLine Raj 316: (1998) 1 RLW
404: 1998 Cri LJ 1902: (1998) 1 RLR 214: (1998) 2 WLC 86 that
.
findings given in the departmental enquiry cannot be admitted in
the judicial proceedings. It was observed:
“9. The learned counsel for the petitioner had led much
influence on the fact that in the departmental inquiry, the
petitioner was exonerated of the charge and therefore, noprima facie case is made out. I am afraid the contention
cannot be accepted as correct, because the findings given
in the departmental inquiry do not appear to be relevant in
view of the provisions contained in Sections 40 of 43 of theEvidence Act. Section 43 of the Evidence Act provides that
judgments, orders or decrees, other than those mentioned
in Sections 40, 41 and 42, are irrelevant, unless the
existence of such judgment, order or decree is a fact in
issue, or is relevant under some other provisions of theAct. The findings given by the Inquiry Officer in the
Departmental Inquiry are not relevant under Sections 40,
41, 42 or any other section of the Evidence Act. Therefore,there can be no escape from the conclusion that the
findings given by the Inquiry Officer or the Disciplinary
Authority in the departmental inquiry are irrelevant by
virtue of the provisions contained in Section 43 of theEvidence Act.
10. In State of Bihar v. Radha Krishna Singh, (1983) 3 SCC
118, the Hon’ble Supreme Court considered the provisions
of Sections 40 to 43 of the Evidence Act. At page 164 of the
report, the Hon’ble Supreme Court observed: —
Taking the first head, it is well settled that judgments
of courts are admissible in evidence under the
provisions of Sections 40, 41 and 42 of the Evidence
Act. Section 43, which is extracted below, clearly
provides that those judgments which do not fall within
the four corners of Sections 40 to 42 are inadmissible::: Downloaded on – 08/07/2025 21:27:52 :::CIS
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2025:HHC:21728unless the existence of such judgment, order or decree
is itself a fact in issue or a relevant fact under some
other provisions of the Evidence Act:
43. Judgments, etc., other than those mentioned in
Sections 40 to 42, when relevant-Judgments, orders or
.
decrees, other than those mentioned in Sections 40, 41
and 42, are irrelevant unless the existence of such
judgment, order or decree, is a fact in issue, or is
relevant under some other provision of this Act.
Some courts have used Section 13 to prove the
admissibility of a judgment as coming under the
provisions of Section 43, referred to above. We are,
however, of the opinion that where there is a specific
provision covering the admissibility of a document, it is
not open to the court to call into aid other general
provisions in order to make a particular document
admissible. In other words, if a judgment is not
admissible as not falling within the ambit of Sections
40 to 42, it must fulfil the conditions of Section 43;
otherwise, it cannot be relevant under Section 13 of the
Evidence Act. The words “other provisions of this Act”
cannot cover Section 13 because this section does not
deal with judgments at all.
It is also well settled that a judgment in rem, like
judgments passed in probate, insolvency, matrimonialor guardianship or other similar proceedings, is
admissible in all cases whether such judgments are
inter partes or not. In the instant case, however, all thedocuments consisting of judgments filed are not
judgments in rem and therefore, the question of their
admissibility on that basis does not arise. As mentioned
earlier, the judgments filed as Exhibits in the instant
case are judgments in personam and, therefore, they do
not fulfil the conditions mentioned in Section 41 of the
Evidence Act.”
11. The learned counsel for the petitioner has not been able
to show under which provision of the Evidence Act the
order passed by the disciplinary authority in the
departmental inquiry conducted against the petitioner is
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relevant so far as the proceedings pending before the
criminal court are concerned. I am therefore of the opinion
that in view of the authoritative pronouncement of the
Hon’ble Supreme Court in State of Bihar v. Radha Krishna
Singh (supra), the findings given by the Inquiry Officer in
.
the departmental inquiry should be held to be irrelevant.
In other words, the findings given in the departmental
inquiry cannot be used for the purpose of showing that no
prima facie case is made out against the petitioner.
28. Thus, the judgment is irrelevant as per Section 43 of
the Indian Evidence Act and cannot be taken on record.
29.
Mr. R.L. Sood, learned Senior Counsel for the
petitioner/informant, contended that the District Collector had
recorded the findings that the sale deeds registered in favour of
the accused Govinder Singh violate Section 118 of the Tenancy
Act because forged agriculturist certificates were produced. This
Court is also concerned with the production of the forged
agriculturist certificates, and the findings recorded by the
District Collector are highly relevant. This submission cannot be
accepted. This Court has to independently determine the
question whether the forged agriculturist certificates were
produced and cannot abdicate its responsibility to the District
Collector. Accepting this submission would obviate the necessity
of the trial before the criminal Court. It was laid down by the
Hon’ble Supreme Court in Kharkan v. State of U.P., 1963 SCC
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OnLine SC 90: (1964) 4 SCR 673: (1965) 2 SCJ 546: 1965 CRI LJ 116:
AIR 1965 SC 83 that the earlier judgment cannot be used for
interpreting the evidence in subsequent judgment. It was
.
observed:
“11. It was contended by Mr Tewatia that the earlier
judgment involved almost the same evidence, and the
reasoning of the learned Judge in Paran’s case destroys the
prosecution’s case in the present appeal. He attempted to
use the earlier judgment to establish this point. In ouropinion, he cannot be allowed to rely upon the reasoning
in the earlier judgment proceeding, as it did upon evidence
which was separately recorded and separately considered.
The eyewitnesses in this case are five in number, while inthe other case, there were only two, but that apart, the
earlier judgment can only be relevant if it fulfils the
conditions laid down by the Indian Evidence Act in
Sections 40-43. The earlier judgment is no doubtadmissible to show the parties and the decision, but it is
not admissible for the purpose of relying upon the
appreciation of evidence. Since the bar under Section 403Criminal Procedure Code did not operate, the earlier
judgment is not relevant for the interpretation of evidencein the present case.”
30. Therefore, the judgment is not relevant and cannot be
used for holding that forged agriculturist certificates were
produced with the sale deeds. Consequently, the present
application is dismissed.
31. The petitioner/informant has prayed in the present
revision that the accused be convicted. It is not permissible.
Section 401(3) specifically provides that the High Court is not
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authorised to convert the findings of acquittal into a conviction.
It was laid down by the Hon’ble Supreme Court in Mahabir v.
State of Haryana, 2025 SCC OnLine SC 184, that it is impermissible
.
for the High Court to convert the acquittal into a conviction. It
was observed: –
“39. This Court in Bindeshwari Prasad Singh v. State of
Bihar (now Jharkhand) reported in (2002) 6 SCC 650, laid
down that there is a limit on the powers of the High Courtas a Revisional Court, prohibiting it from converting a
finding of acquittal into one of conviction. Para 12 reads
thus: —
“12. We have carefully considered the material on
record, and we are satisfied that the High Court was not
justified in reappreciating the evidence on record and
coming to a different conclusion in a revision preferred
by the informant under Section 401 of the Code ofCriminal Procedure. Sub-section (3) of Section 401 in
terms provides that nothing in Section 401 shall be
deemed to authorise a High Court to convert a findingof acquittal into one of conviction. The aforesaid sub-
section, which places a limitation on the powers of therevisional court, prohibiting it from converting a
finding of acquittal into one of conviction, is itself
indicative of the nature and extent of the revisionalpower conferred by Section 401 of the Code of Criminal
Procedure. If the High Court could not convert a finding
of acquittal into one of conviction directly, it could not
do so indirectly by the method of ordering a retrial. It is
well settled by a catena of decisions of this Court that
the High Court will ordinarily not interfere in revision
with an order of acquittal except in exceptional cases
where the interest of public justice requires
interference for the correction of a manifest illegality
or the prevention of gross miscarriage of justice. The
High Court will not be justified in interfering with an::: Downloaded on – 08/07/2025 21:27:52 :::CIS
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2025:HHC:21728order of acquittal merely because the trial court has
taken a wrong view of the law or has erred in the
appreciation of evidence. It is neither possible nor
advisable to make an exhaustive list of circumstances
in which exercise of revisional jurisdiction may be.
justified, but decisions of this Court have laid down the
parameters of exercise of revisional jurisdiction by the
High Court under Section 401 of the Code of Criminal
Procedure in an appeal against acquittal by a privateparty. (See D. Stephens v. Nosibolla [1951 SCC 184: 1951
SCC 184: AIR 1951 SC 196: 1951 Cri LJ 510], K.
Chinnaswamy Reddy v. State of A.P. [AIR 1962 SC
1788 : (1963) 1 Cri LJ 8], Akalu Ahir v. RamdeoRam [(1973) 2 SCC 583: 1973 SCC (Cri) 903], Pakalapati
Narayana Gajapathi Raju v. Bonapalli Peda
Appadu [(1975) 4 SCC 477: 1975 SCC (Cri) 543: AIR 1975 SC1854] and Mahendra Pratap Singh v. Sarju Singh [AIR
1968 SC 707: 1968 Cri LJ 665].)”
40. This Court in Joseph Stephen v. Santhanasamy reported
in (2022) 13 SCC 115, laid down that on a plain reading of
sub-section (3) of Section 401 CrPC, it has to be held that
sub-section (3) of Section 401 CrPC prohibits/bars the
High Court to convert a finding of acquittal into one of
conviction. Para 10 reads thus: —
“10. Applying the law laid down by this Court in the
aforesaid decisions and on a plain reading of sub-
section (3) of Section 401 CrPC, it has to be held that
sub-section (3) of Section 401 CrPC prohibits/bars theHigh Court to convert a finding of acquittal into one of
conviction. Though and as observed hereinabove, the
High Court has revisional power to examine whether
there is manifest error of law or procedure, etc.
however, after giving its own findings on the findings
recorded by the court acquitting the accused and after
setting aside the order of acquittal, the High Court has
to remit the matter to the trial court and/or the first
appellate court, as the case may be.”
41. This Court in Joseph Stephen (supra) holds that first,
the High Court has to pass a judicial order to treat an
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application for revision as a petition of appeal. The High
Court has to pass a judicial order because sub-section (5)
of Section 401 CrPC provides that if the High Court is
satisfied that such revision application was made under
the erroneous belief that no appeal lies thereto and that it
.
is necessary in the interests of justice so to do. While
treating the application for revision and to deal with the
same as a petition of appeal, the High Court has to record
the satisfaction as provided under sub-section (5) of
Section 401 CrPC. Para 14 reads thus: —
“14. Now so far as the power to be exercised by the
High Court under sub-section (5) of Section 401 CrPC,namely, the High Court may treat the application for
revision as petition of appeal and deal with the same
accordingly is concerned, firstly the High Court has to
pass a judicial order to treat the application for revisionas petition of appeal. The High Court has to pass a
judicial order because sub-section (5) of
Section 401 CrPC provides that if the High Court is
satisfied that such revision application was made under
the erroneous belief that no appeal lies thereto and thatit is necessary in the interests of justice so to do. While
treating the application for revision as a petition of
appeal and dealing with the same accordingly, the HighCourt has to record the satisfaction as provided under
sub-section (5) of Section 401 CrPC. Therefore, whereunder the CrPC an appeal lies, but an application for
revision has been made to the High Court by any
person, the High Court has jurisdiction to treat theapplication for revision as a petition of appeal and deal
with the same accordingly as per sub-section (5) of
Section 401 CrPC, however, subject to the High Court
being satisfied that such an application was made
under the erroneous belief that no appeal lies thereto
and that it is necessary in the interests of justice so to
do and for that purpose the High Court has to pass a
judicial order, may be a formal order, to treat the
application for revision as a petition of appeal and deal
with the same accordingly.”
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42. This Court in Ganesha v. Sharanappa reported in (2014)
1 SCC 87, in para 11, clarifies that:
“… Interference with the order of acquittal is called for
only in exceptional cases – where there is manifest
error of law of procedure resulting into miscarriage of.
justice, and, where the acquittal has been caused by
shutting out evidence which otherwise ought to have
been considered or where material evidence whichclinches the issue has been overlooked. In such
exceptional cases, the High Court can set aside an order
of acquittal, but it cannot convert it into one of
conviction. The only course left to the High Court insuch exceptional cases is to order a retrial”.
43. This Court in Santhakumari v. State of Tamil
Nadu reported in (2023) 15 SCC 440, laid down that the
order passed by the High Court is in the teeth of the
provisions of sub-section (2) of Section 401 of the CrPC as
interpreted by this Court in Manharibhai Muljibhai
Kakadia v. Shaileshbhai Mohanbhai Patel reported in (2012)
10 SCC 517. Paras 5 and 6 respectively read thus: —
“5. Having considered the submissions, since it is not
in dispute that the proposed accused were not served
notice of the revision proceedings, the order passed bythe High Court is in the teeth of the provisions of sub-
section (2) of Section 401 of the Code as interpreted bythis Court in Manharibhai Muljibhai Kakadia
[Manharibhai Muljibhai Kakadia v. Shaileshbhai
Mohanbhai Patel, (2012) 10 SCC 517: (2013) 1 SCC (Cri)218].
6. The decision in Manharibhai Muljibhai Kakadia
[Manharibhai Muljibhai Kakadia v. Shaileshbhai
Mohanbhai Patel, (2012) 10 SCC 517 : (2013) 1 SCC (Cri)
218] has also been followed in Bal Manohar Jalan v. Sunil
Paswan [Bal Manohar Jalan v. Sunil Paswan, (2014) 9 SCC
640 : (2014) 5 SCC (Cri) 256], wherein it was held: (Bal
Manohar Jalan case [Bal Manohar Jalan v. Sunil
Paswan, (2014) 9 SCC 640 : (2014) 5 SCC (Cri) 256], SCC p.
644, para 9)::: Downloaded on – 08/07/2025 21:27:52 :::CIS
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2025:HHC:21728“9. In the present case challenge is laid to the order
dated 4-3-2009 at the instance of the complainant
in the revision petition before the High Court and by
virtue of Section 401(2) of the Code, the accused
mentioned in the first information report get the.
right of hearing before the Revisional Court
although the impugned order [Sunil Paswan v. State
of Bihar, 2011 SCC OnLine Pat 600] therein was
passed without their participation. The appellantwho is an accused person cannot be deprived of
hearing on the face of the express provision
contained in Section 401(2) of the Code and on this
ground, the impugned order [Sunil Paswan v. State ofBihar, 2011 SCC OnLine Pat 600] of the High Court is
liable to be set aside and the matter has to be
remitted.””
44. The decision in Manharibhai Muljibhai (supra) was
referred to and relied upon in Bal Manohar Jalan v. Sunil
Paswan reported in (2014) 9 SCC 640, wherein it was inter
alia, held that
“The appellant, who is an accused person, cannot be
deprived of hearing on the face of the express
provision contained in Section 401(2) of the Code
and on this ground, the impugned order of the High
Court is liable to be set aside…”.
45. This Court in Nandini Satpathy v. P.L. Dani reported
in (1978) 2 SCC 424 held that the right to consult an
advocate of choice shall not be denied to any person who is
arrested. This does not mean that persons who are not
under arrest or custody can be denied such a right. The
spirit and ethos of Article 22(1) is that it is fundamental to
the rule of law that the service of a lawyer shall be
available for consultation to the accused person under
circumstances of near-custodial interrogation. Moreover,
the right against self-incrimination is best practised &
best promoted by conceding to the accused the right to
consult a legal practitioner of his choice. Lawyers’
presence is a constitutional claim in some circumstances
of our country, and in the context of Article 20(3), is an
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assurance of awareness and observance of the right to
silence.
46. Thus, it is as clear as a noonday that the High Court
committed an egregious error in reversing the acquittal
and passing an order of conviction in exercise of its
.
revisional jurisdiction and that too without affording any
opportunity of hearing to the appellants herein.
32. Therefore, it is impermissible to convert the acquittal
into a conviction while hearing a revision at the instance of a
private party.
33.
It was laid down by the Hon’ble Supreme Court in
Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204:
(2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that a revisional
court is not an appellate court and it can only rectify the patent
defect, errors of jurisdiction or the law. It was observed at page
207: –
“10. Before adverting to the merits of the contentions, at
the outset, it is apt to mention that there are concurrent
findings of conviction arrived at by two courts after a
detailed appreciation of the material and evidence broughton record. The High Court in criminal revision against
conviction is not supposed to exercise the jurisdiction like
the appellate court, and the scope of interference in
revision is extremely narrow. Section 397 of the Criminal
Procedure Code (in short “CrPC“) vests jurisdiction to
satisfy 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. The object of the provision is to set right a
patent defect or an error of jurisdiction or law. There has
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2025:HHC:21728the merits of individual cases. It is also well settled that
while considering the same, the Revisional Court does not
dwell at length upon the facts and evidence of the case to
reverse those findings.
34. This position was reiterated in State of Gujarat v.
.
Dilipsinh Kishorsinh Rao, (2023) 17 SCC 688: 2023 SCC OnLine SC
1294, wherein it was observed at page 695:
14. The power and jurisdiction of the Higher Court under
Section 397CrPC, which vests the court with the power tocall for and examine records of an inferior court, is for the
purposes of satisfying itself as to the legality and
regularities of any proceeding or order made in a case. The
object of this provision is to set right a patent defect or anerror of jurisdiction or law or the perversity which has
crept in such proceedings.
15. It would be apposite to refer to the judgment of this
Court in Amit Kapoor v. Ramesh Chander [Amit
Kapoor v. Ramesh Chander, (2012) 9 SCC 460: (2012) 4 SCC(Civ) 687: (2013) 1 SCC (Cri) 986], where scope of Section
397 has been considered and succinctly explained as
under: (SCC p. 475, paras 12-13)“12. Section 397 of the Code vests the court with the
power to call for and examine the records of an inferior
court for the purposes of satisfying itself as to the
legality and regularity of any proceedings or ordermade in a case. The object of this provision is to set
right a patent defect or an error of jurisdiction or law.
There has to be a well-founded error, and it may not be
appropriate for the court to scrutinise the orders,
which, upon the face of it, bear a token of careful
consideration and appear to be in accordance with law.
If one looks into the various judgments of this Court, it
emerges that the revisional jurisdiction can be invoked
where the decisions under challenge are grossly
erroneous, there is no compliance with the provisions
of law, the finding recorded is based on no evidence,
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material evidence is ignored or judicial discretion is
exercised arbitrarily or perversely. These are not
exhaustive classes, but are merely indicative. Each case
would have to be determined on its own merits.
13. Another well-accepted norm is that the revisional
.
jurisdiction of the higher court is a very limited one and
cannot be exercised in a routine manner. One of the
inbuilt restrictions is that it should not be against an
interim or interlocutory order. The Court has to keep in
mind that the exercise of revisional jurisdiction itself
should not lead to injustice ex facie. Where the Court is
dealing with the question as to whether the charge has
been framed properly and in accordance with law in a
given case, it may be reluctant to interfere in the
exercise of its revisional jurisdiction unless the case
substantially falls within the categories aforestated.
Even framing of charge is a much-advanced stage in
the proceedings under CrPC.”
16. This Court in the aforesaid judgment in Amit Kapoor
case [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 :
(2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986] has also laid
down principles to be considered for exercise of
jurisdiction under Section 397 particularly in the context
of prayer for quashing of charge framed under Section228CrPC is sought for as under : (Amit Kapoor case [Amit
Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC(Civ) 687 : (2013) 1 SCC (Cri) 986], SCC pp. 482-83, para 27)
“27. Having discussed the scope of jurisdiction underthese two provisions, i.e. Section 397 and Section 482
of the Code, and the fine line of jurisdictional
distinction, it will now be appropriate for us to enlist
the principles with reference to which the courts
should exercise such jurisdiction. However, it is not
only difficult but inherently impossible to state such
principles with precision. At best and upon objective
analysis of various judgments of this Court, we are able
to cull out some of the principles to be considered for
proper exercise of jurisdiction, particularly, with
regard to quashing of charge either in exercise of::: Downloaded on – 08/07/2025 21:27:52 :::CIS
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2025:HHC:21728jurisdiction under Section 397 or Section 482 of the
Code or together, as the case may be:
27.1. Though there are no limits to the powers of the
Court under Section 482 of the Code but the more the
power, the more due care and caution is to be exercised.
in invoking these powers. The power of quashing
criminal proceedings, particularly, the charge framed
in terms of Section 228 of the Code, should be exercised
very sparingly and with circumspection and that too in
the rarest of rare cases.
27.2. The Court should apply the test as to whether the
uncontroverted allegations as made from the record of
the case and the documents submitted therewith prima
facie establish the offence or not. If the allegations are
so patently absurd and inherently improbable that no
prudent person can ever reach such a conclusion, and
where the basic ingredients of a criminal offence are
not satisfied, then the Court may interfere.
27.3. The High Court should not unduly interfere. No
meticulous examination of the evidence is needed for
considering whether the case would end in conviction
or not at the stage of framing of charge or quashing of
charge.
***
27.9. Another very significant caution that the courts
have to observe is that it cannot examine the facts,
evidence and materials on record to determine whether
there is sufficient material on the basis of which the
case would end in a conviction; the court is concerned
primarily with the allegations taken as a whole whether
they will constitute an offence and, if so, is it an abuse
of the process of court leading to injustice.
***
27.13. Quashing of a charge is an exception to the rule of
continuous prosecution. Where the offence is even
broadly satisfied, the Court should be more inclined to
permit continuation of prosecution rather than its
quashing at that initial stage. The Court is not expected
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to marshal the records with a view to decide
admissibility and reliability of the documents or
records, but is an opinion formed prima facie.”
17. The revisional court cannot sit as an appellate court
and start appreciating the evidence by finding out
.
inconsistencies in the statement of witnesses, and it is not
legally permissible. The High Courts ought to be cognizant
of the fact that the trial court was dealing with an
application for discharge.
35. It was held in Kishan Rao v. Shankargouda, (2018) 8
SCC 165: (2018) 3 SCC (Cri) 544: (2018) 4 SCC (Civ) 37: 2018 SCC
OnLine SC 651 that it is impermissible for the High Court to
reappreciate the evidence and come to its conclusions in the
absence of any perversity. It was observed on page 169:
“12. This Court has time and again examined the scope of
Sections 397/401 CrPC and the ground for exercising therevisional jurisdiction by the High Court. In State of
Kerala v. Puttumana Illath Jathavedan Namboodiri [State of
Kerala v. Puttumana Illath Jathavedan Namboodiri, (1999) 2SCC 452: 1999 SCC (Cri) 275], while considering the scope of
the revisional jurisdiction of the High Court, this Court haslaid down the following: (SCC pp. 454-55, para 5)
“5. … In its revisional jurisdiction, the High Court cancall for and examine the record of any proceedings to
satisfy 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 conclusion on the same when the evidence has::: Downloaded on – 08/07/2025 21:27:52 :::CIS
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2025:HHC:21728already 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 concluding that the High Court exceeded
its jurisdiction in interfering with the conviction of the
respondent by reappreciating the oral evidence. …”
13. Another judgment which has also been referred to and
relied on by the High Court is the judgment of this Court
in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao
Phalke [Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao
Phalke, (2015) 3 SCC 123: (2015) 2 SCC (Cri) 19]. This Court
held that the High Court, in the exercise of revisional
jurisdiction, shall not interfere with the order of the
Magistrate unless it is perverse or wholly unreasonable or
there is non-consideration of any relevant material, the
order cannot be set aside merely on the ground that
another view is possible. The following has been laid down
in para 14: (SCC p. 135)
“14. … Unless the order passed by the Magistrate is
perverse or the view taken by the court is wholly
unreasonable or there is non-consideration of any
relevant material or there is palpable misreading of
records, the Revisional Court is not justified in setting
aside the order, merely because another view is
possible. The Revisional Court is not meant to act as an
appellate court. The whole purpose of the revisional
jurisdiction is to preserve the power in the court to do
justice in accordance with the principles of criminal
jurisprudence. The revisional power of the court under
Sections 397 to 401 CrPC is not to be equated with that
of an appeal. Unless the finding of the court, whose
decision is sought to be revised, is shown to be perverse
or untenable in law or is grossly erroneous or glaringly
unreasonable or where the decision is based on no
material or where the material facts are wholly ignored
or where the judicial discretion is exercised arbitrarily
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2025:HHC:21728
or capriciously, the courts may not interfere with the
decision in exercise of their revisional jurisdiction.”
14. In the above case, also conviction of the accused was
recorded, and the High Court set aside [Dattatray Gulabrao
Phalke v. Sanjaysinh Ramrao Chavan, 2013 SCC OnLine Bom
.
1753] the order of conviction by substituting its view. This
Court set aside the High Court’s order holding that the
High Court exceeded its jurisdiction in substituting its
views, and that too without any legal basis.
36. This position was reiterated in Bir Singh v. Mukesh
Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ)
309: 2019 SCC OnLine SC 13, wherein it was observed at page 205:
“16. It is well settled that in the exercise of revisional
jurisdiction under Section 482 of the Criminal Procedure
Code, the High Court does not, in the absence of
perversity, upset concurrent factual findings. It is not for
the Revisional Court to re-analyse and re-interpret the
evidence on record.
17. As held by this Court in Southern Sales &
Services v. Sauermilch Design and Handels GmbH [SouthernSales & Services v. Sauermilch Design and Handels GmbH,
(2008) 14 SCC 457], it is a well-established principle of lawthat 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. The answer to the firstquestion is, therefore, in the negative.”
37. The present revision has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
38. The learned Trial Court framed a charge against the
accused Govinder Singh that he had cheated Manohar Lal on
10.4.2008 and 24.6.2008 at Suni by dishonestly inducing him to
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transfer his land and thereby committed an offence punishable
under Section 420 of IPC. This was a charge faced by the accused
Govinder Singh, and the learned Trial Court was supposed to
.
record a finding regarding this charge, and if the learned Trial
Court held that the cheating of Govinder Singh was not proved, it
could not be faulted.
39. It was submitted that the learned Trial Court
misunderstood the case of the prosecution because the
prosecution never alleged that Manohar Lal was cheated, but it
was asserted that the State was cheated. It is impermissible to
raise this argument before this Court. The remedy of the
petitioner was to apply for the modification of the charge. Once
the accused was never told that he had to face a charge of
cheating the State, he cannot be held to be liable for cheating the
State by holding that an error was committed by the learned Trial
Court while framing the charge.
40. Even otherwise, the case that accused Govinder Singh
had cheated the State by producing forged agriculturist
certificates was not proved.
41. Shyam Sunder (PW27) conducted the investigation.
He stated in his cross-examination that he had obtained the
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certified copies of sale deeds (Ex.PW11/B and Ex.PW11/C);
however, no agriculturist certificate was attached to them, nor
was it supplied to him with the sale deed. His statement that the
.
agriculturist certificates were not attached to the sale deed will
make the prosecution’s case highly suspect that the agriculturist
certificates were attached to the sale deed at the time of their
presentation.
42.
This inference is supported by the statements of the
persons present at the time of the execution of the sale deed.
Manohar Lal (PW6) specifically stated in his cross-examination
that no agriculturist certificate was produced with the sale deed.
Sub Registrar made an inquiry from Govinder Singh, and
Govinder Singh produced the documents of his property known
as Knollswood. Sub Registrar satisfied himself and registered the
sale deed. He was permitted to be re-examined by the learned
APP. He stated that he had not told the police about the property
papers of Knollswood. He clarified in the cross-examination by
the learned counsel for the defence that he had not told the police
about these facts because no inquiry was made from him.
43. Bhoom Prakash (PW12) is a witness to the sale deed
(Ex.PW11/B and Ex.PW11/C). He stated in his cross-examination
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that the agriculturist certificates were not attached to the sale
deed at the time of their presentation. He was re-examined by
learned APP and he stated that he had not seen the agriculturist
.
certificate (Mark-A and Ex.PW11/A) attached to the sale deed, but
had seen the other papers. He had told the police about this fact.
He clarified in the cross-examination by the defence that the
Tehsildar made inquiries from Govinder Singh regarding his
agricultural land, and he replied that he owned the land in Shimla
city and the sale deed was registered.
44. Diwan Singh (PW13) identified Manohar Lal in the
Sale Deed (Ex.PW11/B and Ex.PW11/C). He stated in his cross-
examination that Sub Registrar made an inquiry from Govinder
Singh, and he showed the documents of his property located at
Knollswood and the sale deeds were registered. He could not say
whether the agricultural certificates (Mark-A and Ex.PW1/A)
were attached to the sale deed. He was permitted to be re-
examined, and he denied that no inquiry was made regarding the
property located at Knollswood.
45. Bal Krishan (PW23) stated that he had signed the sale
deeds (Ex.PW11/B and Ex.PW11/C). He stated in his cross-
examination that the agriculturist status was asked from
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Govinder Singh, who showed papers of the Knollswood property
to the Tehsildar. Tehsildar satisfied himself and registered the
sale deed. He did not see the agriculturist certificate with the sale
.
deed.
46. All these witnesses were not declared hostile by the
prosecution. They were projected as witnesses of truth by the
prosecution. Therefore, their testimonies categorically proved
that the agriculturist certificates were not annexed to the sale
deeds. It was laid down by the Hon’ble Supreme Court in
Raghunath v. State of Haryana, (2003) 1 SCC 398: 2003 SCC (Cri)
326: 2002 SCC OnLine SC 1061 that when two views are possible,
the one in favour of the accused is to be accepted. It was observed
at page 413:
33. In the facts and circumstances recited above, we are
clearly of the view that the prosecution has not come up
with the true story. It has suppressed the facts. If that be
the case, the whole prosecution story would stand onquicksand. The prosecution has failed to establish its case
beyond a reasonable doubt. It is now a well-settled
principle of law that if two views are possible, the one in
favour of the accused and the other adversely against it,
the view favouring the accused must be accepted.
47. Thus, learned Courts below did not err in accepting
this version and holding that the agriculture certificates were not
attached to the sale deeds.
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48. Heavy reliance was placed upon the statements of the
Sub Registrars, Padam Singh (PW7) and Maan Singh (PW9), to
submit that they categorically stated about the production of the
.
agriculturist certificates. Padam Singh stated that Jamabandi,
valuation and agriculture certificates were produced by the
purchaser. Similarly, Maan Singh stated that Jamabandi, Average
and Tatima and agricultural certificates were produced by
Govinder Singh. However, these statements in the examination-
in-chief have been diluted in their cross-examination and the
documents on record.
49. Padam Singh (PW7) stated in his cross-examination
that the Sub Registrar can satisfy himself by looking into any
document to find out whether the purchaser is an agriculturist or
not, and there is no legal requirement to produce the
agriculturist certificate. He did not remember that the purchaser
had shown the documents of Knollswood. He stated that three
documents were mentioned to have been annexed to the sale
deed, which are a copy of the Jamabandi, Average cost and
Tatima. He volunteered to say that this detail was not prepared at
that time, but after his retirement. He admitted that the sale deed
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cannot be registered without average cost, Jamabandi and
Tatima.
50. The admission in the cross-examination that three
.
documents are shown to have been annexed to the sale deed,
namely Jamabandi, average cost and Tatima, makes his
statement in the examination in chief doubtful that an
agriculturist certificate was also annexed to the sale deed. His
statement regarding the production of agriculturist certificate is
also not supported by the other witnesses present at the time of
the execution of the sale deed. Thus, no reliance can be placed on
his testimony.
51. Maan Singh (PW9) admitted in his cross-examination
that he came to know about the documents annexed to the sale
deed when the police came to make inquiries from him. The
police showed the documents to him, and he stated that the
agriculturist certificate (Mark-A) was produced before him. He
did not remember it personally. He did not remember that the
documents of Knollswood were shown to him. He admitted that
he had registered the sale deed after satisfying himself about the
property located at Knollswood.
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52. The statement of this witness shows that he did not
remember the details of the documents, and he made the
statement after seeing the documents brought by the police,
.
which means that he was making the statement based on the
documents shown to him by the police and not the personal
knowledge. Hence, his testimony cannot be relied upon to hold
that the agriculturist certificates were annexed to the sale deed.
His statement that he had satisfied himself after looking at the
documents annexed to the sale deed makes it doubtful that the
agriculturist certificate was annexed to the sale deed because,
had the agriculturist certificate been annexed to the sale deed,
there was no necessity to look into the documents of Knollswood.
53. Thus, the witnesses have consistently stated that the
documents of the Knollswood property were shown by the
accused, Govinder Singh, and the sale deed was registered
thereafter. These witnesses were not cross-examined by the
prosecution and were not declared hostile. Therefore, their
testimonies are binding upon the prosecution, and the
prosecution’s case that agriculturist certificates were produced
by the accused is doubtful.
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54. Mr. R.L. Sood, learned Senior Counsel for the
petitioner/informant, relied upon the definition of agriculturist,
land owner and Section 118 to submit that only a person who
.
cultivates the land personally is an agriculturist. No evidence was
presented to show that the accused, Govinder Singh, was
cultivating the land personally. Hence, the version that the Sub
Registrar had satisfied himself with the property located at
Knollswood is not acceptable. Further, the Sub Registrar could
not have satisfied himself by merely looking at the document,
and he has to retain the proof of the purchaser being an
agriculturist on record. The documents of the Knollswood were
not retained on record, and the version that the Sub registrar had
satisfied himself by looking into the property papers is not
acceptable. It was not permissible for the Sub Registrar to look
into the sale deed in favour of the father of the accused. He had
partitioned the property on 24.3.1982 vide Memorandum of Oral
Partition (Ex.DP). Hence, the accused Govinder ceased to be an
agriculturist after the partition. These submissions will not help
the petitioner. This Court is not to interpret the provisions of the
Tenancy Act or to determine the validity of the registration of the
sale deeds, but to see whether the prosecution’s case regarding
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the production of the forged Agriculturist Certificate before the
Sub Registrar was proved or not. The evidence on record does not
show that the certificates were produced.
.
55. It was submitted that the wrong address was given in
the sale deed by describing the accused as a resident of Kupvi.
This submission will not help the petitioner. There is a
distinction between a false document and a document whose
recitals are false (Please see Mohammad Ibrahim Vs State of Bihar
(2009) 8 SCC 851). There is no evidence that the sale deed would
not have been registered had the correct address been provided,
and the furnishing of the wrong address would not constitute
cheating.
56. The evidence against the accused, Kahan Singh, is
that accused Govinder Singh disclosed to the police during
interrogation that he had contacted Rajinder Maheshwari.
Rajinder Maheshwari said that he had talked to Kahan Chand,
and Kahan Chand got the agriculturist certificates prepared from
Mast Ram. Thus, the prosecution is relying upon the statement
made by the co-accused Govinder Singh and the statement made
by the accused Kahan Chand and Rajinder Maheshwari, who is
not before the Court. The statement made by the co-accused to
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the police during the investigation is inadmissible, as it is hit by
Section 162 of Cr.P.C. It was laid down by the Hon’ble Supreme
Court in Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019)
.
16 SCC 547: (2020) 2 SCC (Cri) 361: 2019 SCC OnLine SC 588 that a
statement made by co-accused during the investigation is hit by
Section 162 of Cr.P.C. and cannot be used as a piece of evidence. It
was also held that the confession made by the accused is
inadmissible because of Section 25 of the Indian Evidence Act. It
was observed at page 568:-
“44. Such a person, viz., the person who is named in the
FIR, and therefore, the accused in the eye of the law, can
indeed be questioned, and the statement is taken by the
police officer. A confession that is made to a police officer
would be inadmissible, having regard to Section 25 of theEvidence Act. A confession, which is vitiated under Section
24 of the Evidence Act, would also be inadmissible. A
confession, unless it fulfils the test laid down in PakalaNarayana Swami [Pakala Narayana Swami v. King Emperor,
1939 SCC OnLine PC 1 : (1938-39) 66 IA 66: AIR 1939 PC 47]and as accepted by this Court, may still be used as an
admission under Section 21 of the Evidence Act. This,
however, is subject to the bar of admissibility of astatement under Section 161 CrPC. Therefore, even if a
statement contains admission, the statement being one
under Section 161, it would immediately attract the bar
under Section 162 CrPC.”
57. Therefore, it is impermissible to rely upon the
statement of the Investigating Officer regarding what was told to
him during the investigation, and there is no legally admissible
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evidence against accused Kahan Chand. Thus, the learned Trial
Court had rightly acquitted him.
58. Therefore, learned Courts below had taken a
.
reasonable view based on the evidence placed on record, and it is
impermissible to interfere with such a view while exercising the
revisional jurisdiction.
59. No other point was urged.
60.
In view of the above, the present revision fails, and
the same is dismissed.
61. Records be sent back forthwith along with a copy of
the judgment. Pending applications, if any, also stand disposed
of.
(Rakesh Kainthla)
Judge
8th July, 2025
(Chander)
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