Kerala High Court
Shaji Jacob vs Shaji P.V
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
WEDNESDAY, THE 11TH DAY OF JUNE 2014/21ST JYAISHTA, 1936
Crl.MC.No. 4183 of 2010 ( )
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CRL.RP 157/2009 OF SESSIONS COURT, PATHANAMTHITTA
ST.NO. 897/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II,
PATHANAMTHITTA
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PETITIONER/IST RESPONDENT/ACCUSED :
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SHAJI JACOB,
VIZHELIL HOUSE,
VALLAMKULAM EAST P.O.
ERAVIPEROOR VILLAGE,
THIRUVALLA TALUK,
PATHANAMTHITTA.
BY ADV. SRI.ARUN B.VARGHESE
RESPONDENTS/REVISION PETITIONER &STATE/COMPLAINANT :
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1. SHAJI P.V.,
MEMANA HOUSE,
PULLAD P.O.,
KOIPURAM-689548.
2. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA
ERNAKULAM.
R1 BY ADVS. SRI.C.V.MANUVILSAN
SRI.P.G.SURESH
SMT.K.VIDYA
SRI.P.S.ANISHAD
R2 BY PUBLIC PROSECUTOR SRI. JUSTIN JACOB
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11-06-2014,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Mn
...2/-
Crl.MC.No. 4183 of 2010 ( )
APPENDIX
PETITIONERS' ANNEXURES :
ANNEXURE AI : COPY OF THE ORDER DATED 12/10/09 IN ST NO. 897/08.
ANNEXURE AII COPY OF THE ORDER DATED 16/7/10 IN CRL.R.P.NO. 157/09.
RESPONDENT'S ANNEXURES : NIL
//TRUE COPY//
P.A. TO JUDGE
Mn
P.D. RAJAN, J. C.R.
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Crl.M.C.No.4183 of 2010
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Dated this the 11th day of June, 2014
O R D E R
The main challenge in this petition under Section 482 of the Code of Criminal Procedure (for short 'Code') is that whether a revision is maintainable before a Sessions Judge against the order of acquittal in a case instituted upon a complaint? Petitioner contended that no revision will lie before a Sessions Court after the acquittal of the accused under Section 256 (1) of the Code in a private complaint and the direction of the Sessions Judge to take back the case on file and to proceed the case as per law is without any jurisdiction.
2. Petitioner filed this petition under Section 482 of the Code to quash the order in Crl.R.P.No.157/2009 of the Sessions Judge, Pathanamthitta. The above revision was preferred against the order in S.T. No.897/2008 of the Judicial First Class Magistrate Court-II, Pathanamthitta, which was filed for offence under Section 138 of the Crl.M.C.No.4183 of 2010 -2- Negotiable Instruments Act. The petitioner who is the accused in the above case contended that the complainant was absent for several days in the trial court, and the complaint was dismissed by the learned magistrate and the accused was acquitted invoking Section 256 (1) Code. Against that, the first respondent preferred Crl.R.P. No.157/2009 before the Sessions Court, Pathanamthitta.
3. The facts in brief is that in discharge of a debt the petitioner issued a cheque for Rs.1,00,000/- in favour of the first respondent on 24.12.2007, drawn on Catholic Syrian Bank Ltd., Vallamkulam Branch. When that cheque was presented for encashment it was dishonoured for the reason "funds insufficient". A lawyer notice was issued on 18.01.2008 and after acceptance of the notice by the petitioner there was no repayment. In the circumstances, the above complaint under Section 138 of the Negotiable Instruments Act was filed before Judicial First Class Magistrate Court-II, Pathanamthitta and on 21.04.2008 cognizance was taken by the court and the case was posted Crl.M.C.No.4183 of 2010 -3- on several occasions. On 26.05.2008, the complainant was not present and the case was posted to 15.07.2008. Thereafter on several occasions the complainant and the accused were absent. Finally, on 12.10.2009, the complainant was absent and the petitioner/accused was acquitted under Section 256 (1) of the Code.
4. The restrictions for preferring an appeal against acquittal has been contemplated under Section 378 of the Code which are provided to protect the interest of the accused and to safeguard him from personal revenge. According to Section 378, an appeal against an order of acquittal can be preferred only (i) by the Government, and
(ii) in a case instituted upon a complaint by the complainant. The relevant law according to Section 378 (4) of the Code is that when an order of acquittal is passed in a case instituted upon a complaint and the High Court, on an application made to it by the complainant, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. Further Crl.M.C.No.4183 of 2010 -4- there is a clarification under Section 401 (4) which provides thus:
"Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed."
A reading of the above Section, the petitioner is prohibited from preferring a revision when there is provision for making an appeal under Section 401 (4).
5. Section 378 of the Code of Criminal Procedure reads as follows:
"378. Appeal in case of acquittal.-(1) Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and (5),-
(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-
bailable offence;
(b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision.
(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) Crl.M.C.No.4183 of 2010 -5- or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal-
(a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;
(b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision.
(3) No appeal to the High Court under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court.
(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
(5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.
(6) If, in any case, the application under sub- section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub- section (2)."
6. The right of such an appeal under sub-clause (4) of Section 378 can be exercised only after obtaining the Crl.M.C.No.4183 of 2010 -6- leave of the High Court. When an order of acquittal is passed by a magistrate or by a Sessions Judge and the offence is a major or a minor offence, the appeal in every case of such acquittal could be made only to the High Court. When a special leave under sub-section (4) is refused by the High Court an appeal by the State under sub-section (1) or sub-section (2) is barred. The application for grant of leave to an appeal is six months from the date of order of acquittal where the complainant is public servant and in other cases sixty days. Ignoring this statutory direction the first respondent filed revision petition before the Sessions Court. If that be so, the contention advanced by the first respondent is only to be discarded.
7. In Thampi v. Sadanandan [1988 (1) KLT 39] this Court held as follows:
"There is no doubt that with the leave of the High Court an appeal can be preferred before it against an order of acquittal passed by a subordinate criminal court in a case instituted upon complaint. S. 401 (4) lays down that where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. Admittedly, in this case, no petition for leave to Crl.M.C.No.4183 of 2010 -7- appeal had been filed in the High Court against the order of the Magistrate. The revision filed before the Sessions Judge was not maintainable and the impugned order of the learned Sessions Judge is without jurisdiction."
8. In an earlier decision this Court in Krishanlal Oberoi v. Corporation of Cochin [1979 KLT 75] held as follows:
"An appeal does lie against an order of acquittal in any: case instituted upon complaint. Of course an appeal lies only when special leave is obtained. The requirement that the complainant has to seek special leave and only if it is granted he can present" the appeal, does not mean that no appeal lies against the order of acquittal. Appeal does lie, but subject to special leave. The contention that appeal must lie as a matter of right in order to attract the bar of S.401(4) of the Code is, to read in place of the words, "where under this Code an appeal lies" the words "where under the Code an appeal lies as a a matter of right." No revision would lie in such cases."
Therefore, the revision filed before the Sessions Judge was without any jurisdiction and not maintainable and Annexure AII order was passed without jurisdiction.
9. The learned counsel for the first respondent contended that the above revision was preferred after the amendment of Cr.P.C. and proviso to Section 372 permits the victim to prefer an appeal against the order of acquittal after amendment. Such an appeal shall lie to the court to Crl.M.C.No.4183 of 2010 -8- which an appeal ordinarily lies against the order of such court. Therefore, when an appeal ordinarily lies to the sessions court, this revision is maintainable like an appeal and misquoting Section 397 instead of 372 proviso is a clerical mistake and there is no illegality in the order passed by the lower court. First respondent is a victim as mentioned in the proviso to Section 372 of the Code and he has a right to file an appeal.
10. Section 372 of the Code reads as follows:
372. No appeal to lie unless otherwise provided.- No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force:
Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.
The first respondent has no dispute with regard to the prohibition under Section 401 (4) of the Code that no proceeding by way of revision shall be entertained at the instance of the party who could have been appealed. He Crl.M.C.No.4183 of 2010 -9- has also no dispute under sub-section (4) of Section 378 of the Code in a case instituted on a complaint an application has to be filed by the complainant for obtaining special leave against an order of acquittal passed in a case instituted on complaint. After getting special leave the complainant may file appeal before High Court. The proviso to Section 372 has been inserted by Act 5 of 2009 with effect from 31.12.2009. This has been made to protect the right of a victim in a criminal act against the unmerited acquittal of the accused or convicting the accused for a lesser offence or imposing inadequate compensation to the victim. In the above circumstances, the victim shall have a right to prefer an appeal to the court to which an appeal ordinarily lies against the order of such court. A reading of the above section shows that complainant under Section 138 of the Negotiable Instruments Act is not a victim as mentioned under Section 372 of the Code and no appeal is maintainable.
Crl.M.C.No.4183 of 2010 -10-
11. The foremost point pressed by the petitioner is that there is a statutory bar under Section 378 (4) for taking a revision by the District and Sessions Judge and the direction to the lower court to take back the case on file and proceed with the case as per law after providing adequate opportunity to the parties, is illegal and without jurisdiction. Since there was a bar by reason of Section 401 (4) of the Code the District and Sessions Judge ought not to have entertained the revision. When an appeal lies and no appeal is preferred, no revision would file by a party, who could have appealed is the scheme of the statute and there is no dispute to that law. The learned District and Sessions Judge without considering the decisions rendered by this Court observed that a revision would lie against the order of an acquittal in a case instituted on a private complaint and learned Sessions Judge made a wrong appreciation of law. In the circumstances, the inherent powers can be invoked under Section 482 of the Code to prevent the abuse of the process of any Court or otherwise to secure the ends of Crl.M.C.No.4183 of 2010 -11- justice [relied State of Haryana v. Bhajanlal, [1992 SCC (Crl) 426].
Hence I quash the order passed by the learned District and Sessions Judge, Pathanamthitta and I allow this petition.
Sd/-
P.D. RAJAN, JUDGE //True copy// P.A. TO JUDGE shg/