Gauhati High Court
Niranjan Kumar Das vs Ranadhir Roy And Ors. on 26 May, 1989
Equivalent citations: 1990CRILJ683
Author: H.K. Sema
Bench: H.K. Sema
JUDGMENT Manisana, J.
1. This petition under Section 482, Cr. P.C. raises the following question :
Whether a Sessions Judge has the power to entertain revision petition filed by an informant against the order of acquittal made by a Magistrate in a case instituted upon a police report?
2. Facts, The police submitted charge-sheet against the accused-respondents under Section 341/325/34, IPC. The Additional Chief Judicial Magistrate Cachar in GR Case No. 1410 of 1980 framed charge under Section 325 read with Section 34, IPC against the accused persons on the accusation that on 13-6-80 at about 8 p.m. at Rangirkhari of Silchar the accused persons voluntarily caused grievous hurt to the informant in furtherance of the common intention of all the accused persons. The learned Magistrate acquitted the accused n the charge by a judgment dated 18-6-82. State has not filed appeal against the order of acquittal. Being aggrieved by the order of acquittal, the informant filed a revision petition in the Court of the Sessions Judge Cachar. The learned Sessions Judge in CM No. 31(3) of 1982 dismissed the revision petition on 21-8-82 on the ground that he has no jurisdiction to entertain the revision petition. Hence this petition.
3. Saraf, J. while hearing the revision petition, doubted the correctness of the ratio laid down by this Court in Abdul Ali Khan v. Ibrahim Sheikh, (1985) 1 Gauhati LR 95 and, therefore, the matter was referred to a Division Bench.
4. In Abdul Ali Khan v. Ibrahim Sheikh, (1985) 1 Gauhati LR 95, this Court has held:
"The provisions for appeal against acquittal has been conferred by the Code and the forum is only the High Court. Consequently, the revisioin application against the order of acquittal by a private complainant can only be entertained by the High Court and not by any subordinate Court. The learned Sessions Judge, therefore, was wrong in entertaining the revision petition against the order of acquittal preferred by a private complainant as it had no jurisdiction in that regard."
It may be noted that the expression "private complainant" used in the above quoted pasage meant an informant of a case instituted upon a police report.
5. First of all we are taking up for consideration the question whether an informant entitled to file an appeal from an order of acquittal. So far as appeal against acquittal is concerned Section 378, Cr. P.C. lays down the law. Under Section 378(1), Cr. P.C. as otherwise provided in Sub-section (2) and subject to the provision of Sub-sections (3) and (5), 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 acquittal passed by any Court other than a High Court or an order of acquittal passed by the Court of Session in revision. Seciton 378(4), Cr. P.C. provides that if 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. Therefore, under Section 378, Cr. P.C. the right to entertain an appeal against the acquittal is conferred on the High Court and that an informant has no right of appeal against an order of acquittal in a case instituted upon a police report.
6. The next question which arises for consideration is what is the remedy of the informant who has no right to file an appeal against an order of acquittal. Under Section 397, Cr. P.C. the High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior criminal Court situate within its or his local jurisdiction for the purpose of satisfying 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.
7. Under Section 401, Cr. P.C. in the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307. But under Section 401(3) the High Court is not empowered to convert a finding of acquittal into one of conviction. In other words, the High Court alone possesses the power of setting aside an order of acquittal and convert the order of acquittal into one of conviction, as provided under Section 386(a) Cr. P.C., but the High Court while exercising its revisional jurisdiction under Section 401(3), Cr. P.C. cannot convert an order of acquittal into one of conviction.
8. Section 399, Cr. P.C. relates to Sessions Judge's powers of revision. Section 399, Cr. P.C. enables the Sessions Judge to exercise all or any of the powers which may be exercised by the High Court under Sub-section (1) of Section 401. Therefore, the powers of revision of the Sessions Judge are co-extensive with those of the High Court under Section 401, Cr. P.C.
9. In Krishnamoorthy, 1984 Cri. LJ 243 (DB), a Division Bench of the Madras High Court has held that in the case of acquittal of the accused in a case taken cognizance on a police report the aggrieved victim of the alleged offence has no right to file an appeal against the order of acquittal and therefore he has right to file a revision before the Sesions Judge while the State failed to file an appeal.
10. For the reasons stated, we are of the view that the Sessions Judge has jurisdiction to entertain the revision. We respectfully agree with the decision of the Madras High Court referred to above and we are respectfully unable to agree with the decision of this Court in Abdul Ali Khan (1985 (1) Gauhati LR 95) (supra). We, therefore, overrule the decision of this Court in Abdul Ali Khan referred to above to the extent covered by this decision.
11. The next question which arises for consideration is whether the order of the learned Sessions Judge is to be set aside and sent back the matter for hearing the matter afresh. As already stated, the occurrence took place in the year 1980. The order of acquittal has been in force for more than 8 years. In this view of the matter, we are of the opinion that if the proceeding is terminated here, it will meet the ends of justice.
12. For the foregoing reasons, although we hold that the revision petition before the Sessions Judge was maintainable, but in the interest of justice the proceeding is not to proceed further.
With the said observation and directions, the petition is disposed of.
H.K. Sema, J.
13. I agree.