Gujarat High Court
Yogesh Babulal Shah vs K.S. Bhasin And 4 Ors. on 20 July, 2005
Author: C.K. Buch
Bench: C.K. Buch
JUDGMENT C.K. Buch, J.
1. Heard Mr. B.A. Surti, learned counsel appearing for the petitioner and Mr. L.R. Pujari, ld.APP, appearing on behalf of the respondent-State.
2. The present Revision Application is preferred against the order dated 08th April, 1994, passed by the ld. Chief Judicial Magistrate in Criminal Case No. 2769 of 1990. The petitioner is the orig. complainant and his grievance is that the order passed by the ld. Chief Judicial Magistrate already under challenge is bad in law and while passing the order, the learned Judge has failed in exercising jurisdiction vested with the Court. The trial Court could have afforded opportunity and the petitioner ought to have been given time to prosecute his case.
3. The order under challenge is passed in a criminal case instituted on the strength of a private complaint. The complaint filed is for the offence punishable under Section 138 of the Negotiable Instruments' Act and Section 420 of the Indian Penal Code. But after recording verification, the ld. Chief Judicial Magistrate refused to issue process for the offence punishable under Section 420 of the Indian Penal Code and decided to proceed with the offence punishable under Section 138 of the Indian Penal Code. The said order is of 12th July, 1993. Thereafter, in the month of April when the matter was kept for recording evidence, the complainant was not found present and, therefore, the ld. Chief Judicial Magistrate decided to dismiss the complaint. The ld. Magistrate has recorded that the complainant was called time and again during the course of the day and practically when the Court hours were to over, the ld. Magistrate decided to dismiss the matter for want of prosecution and appropriate order was passed.
4. As per the settled legal position, the order passed by the ld. Chief Judicial Magistrate dismissing the complaint for want of prosecution and non-availability of complainant in a private complaint has an effect of acquittal.
5. It is argued by the learned counsel appearing for the respondent No. 4 Mr. Banaji that the present Revision Application is not maintainable in view of the scheme of the Code of Criminal Procedure, 1973 because it was possible for the petitioner to file an appeal against the order of acquittal and where the appeal lies, the Revision Application cannot sustain. In support of his submission, Mr. Banaji has taken me through the scheme of Sections 397, 401 and 378 of the Code of Criminal Procedure, 1973. In support of his submissions, he has placed reliance on the decision of this Court in the case of Fatumal Dayaram v. Rael Samson and anr., reported in (11) GLR 1024, and he has taken me through relevant paragraph Nos. 8 and 9 of the judgment. It would be beneficial to quote relevant paragraphs of the said judgment which are as under :
8. With this background of the legal position as to the Magistrate's power to restore as complaint which had come to an end by order of acquittal under Section 247 of the Code, we may turn to a consideration of the provisions of the Code on which reliance has been placed for invoking the revisional powers of this Court for setting aside the order of the Magistrate. Prima facie the order of the Magistrate, Annexure 'A', and that is the only order in respect of which grievance has now been made is correct order because he had no jurisdiction to restore the complaint which had come to an end by an earlier order of acquittal an order which he had jurisdiction to make. It is therefore, difficult to see how this Court can exercise its powers of revision, if it has any, to set aside the order which was correctly made. It is necessary again to emphasise that on the submission made on behalf of the petitioner we are not now concerned with the order of dismissal of the complainant and the order of acquittal. We are here concerned with the refusal of the Magistrate to restore the complaint. But Mr. Sompura goes further and argues that apart from the propriety of the High Court exercising the revisional powers against the order correctly made by the Magistrate, the legal position is that such a revision application cannot be entertained and it is in support of that submission that he relies on Section 439(5) of the Code. Before turning to the provisions of that section it would be convenient to refer to some of the earlier sections which refer to the revisional powers of the High Court. Under Sub-section (1) of Section 435 the High Court may call for and examine the record of any proceedings before any inferior Court for the purpose of satisfying itself 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. Sections 436, 427 and 439 relate to the powers which the High Court may exercise on examination of the record. Section 436 relates to a case where a complaint has been dismissed under Section 203 or Sub-section (3) of Section 204 of the Code or where any person accused of an offence has been discharged, and Section 437 relates to commitment of an accused. The two sections are not attracted in this case. Then comes Section 439 which is relevant. Sub-section (1) of that section provides, so far as material, that in the case of any proceeding the record of which has been called for by itself or which has been reported for orders, 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 423, 426, 427 and 428 and may enhance the sentence. In the present case what is sought is an order of the nature provided for in clauses (c) and (d) of Sub-section (i) of Section 423, that is to say, an order reversing the order made by the Magistrate at Annexure'A' and a consequential positive order restoring the complaint. Sub-sections (2) and (3) of Section 439 are immaterial. Section 439(4) which has been referred to in some of the cases on which reliance has been placed by the learned Assistant Government Pleader who has supported the petition, may be set out. It reads :-
Nothing in this section applies to an entry made under Section 273 or shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.
Sub-section (5) which is material reads as under :-
Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.
9. Now, when considering the applicability of this sub-section and the propriety of the exercise of revisional powers, what we have to consider is what in substance the petitioner asks for. The petitioner does not merely want to get set aside the order of the Magistrate at Annexure'A' because that by itself would not help him. The order of acquittal would still remain. What he wants in substance is that having held that the order of Magistrate at Annexure'A' is wrong, it would be directed to proceed with the case. This is what is stated in so many words in the concluding para of the petition where it is stated that this Court be pleased to set aside the order whereby the learned Magistrate had dismissed the complaint of the petitioner and to direct the learned Magistrate to proceed with the case according to law. Therefore, in substance, the revision application though now confined to the order made at Annexure A, is intended to obtain from this Court an order setting aside the acquittal and to direct the Magistrate to proceed with the trial. Now, there is no doubt on the authorities earlier discussed that the petitioner has a right of appeal against that order of acquittal and that he has not thought fit to file an appeal. If that is so then on the plain language of Sub-section (5) of Section 439 no proceedings by way of a revision shall be entertained at his instance but Mr. Patel argue, and he is supported by the learned Assistant Government Pleader in this submission, that although it is not permissible for the High Court to set aside the acquittal in this case at the instance of the petitioner the High Court has wide powers of revision when acting suo motu and then the High Court can take notice of the facts placed before it and on its own correct the error which the Magistrate has committed. It may be assumed for the present that the Magistrate has committed an error in dismissing the complaint and acquitting the accused. The question then would be whether the High Court on the facts of this case can exercise its revisional powers suo motu. Mr. Sompura's submission is that such action on the part of the High Court would amount to contravention of the provisions of Sections 439(5) and 417(3), would condone the party's default in the filing an acquittal appeal and would amount to permitting a party to by-pass the provisions of Section 417(3). His alternative submission is, as earlier stated, that even if the High Court could entertain this revision application, the authorities indicate that the High Court must be very cautious in exercising those powers. Those powers could be exercised sparingly or in exceptional circumstances as the authorities indicate.
4. Undisputedly, this Revision Application cannot be entertained because the Revision Application would not lie and the petitioner ought to have preferred appeal against the order of acquittal seeking appropriate leave of this Court.
5. According to Mr. Surti as the petitioner was under constant threat of a head strong man of Vadodara, it was not possible for him to enter into Vadodara City and, therefore only, he had failed to appear before the Court on the given date. Of course, Mr. Banaji has resisted this contention and stated that the averments made in the memo of this Revision Application in this regard are vague and easily assailable. The Court is not inclined to enter into this controversy as to whether the petitioner, for the reasons beyond control, had failed to appear before the Court on a given day i.e. 08th April, 1994.
6. Three options are available to the Court viz. (i) the present Revision Application can be dismissed observing that it would not lie because the appeal is provided against the order of acquittal even in the case of a private complaint; (ii) that this Court while dismissing this Revision Application can direct the petitioner and observe that he may prefer appeal against the order of acquittal seeking leave of this Court and if need be, may pray for condonation of delay caused in preferring the appeal, especially in the background of the fact of pendency of the present Revision Application, which is undisputedly filed in time i.e. in prescribed period of limitation of 90 days and (iii) that this Court may say that in view of the scheme of Section 439(5) of the Code of Criminal Procedure, 1973, the present Revision Application may be converted into an appeal against order the acquittal putting an embargo that the petitioner shall have to prefer an application praying leave to prefer appeal.
1. The phraseology talks about appeal and this Court has no reason to infer that there is no appeal provided against the order of acquittal. Thus, the say of Mr. Banaji is hereby accepted that the present Revision Application is not maintainable in the eye of law.
2. However, in view of totality of facts and circumstances emerging from record and the fact of dismissal of the application on sheer technical ground, the petitioner is permitted to convert the present Revision Application into Criminal Appeal against the order of acquittal.
8. The Registry is hereby directed to convert the present Revision Application into Criminal Appeal against the order of acquittal and to list the said converted appeal before the appropriate Bench taking up Criminal Appeals. If need be, the petitioner may pray for formal permission but I am of the view that the act of filing this Revision Application itself can be construed as an anxiety to challenge the order passed by the ld. Chief Judicial Magistrate, which has an effect of acquittal, and with to file an application praying such leave. The appropriate Bench will be competent to decide whether to grant such leave or not.