Allahabad High Court
Jagdish vs State Of U.P. And Others on 4 August, 2022
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 42 Case :- CRIMINAL REVISION No. - 3211 of 2008 Revisionist :- Jagdish Opposite Party :- State of U.P. and Others Counsel for Revisionist :- Shahbuddin,A.R. Siddiqui,D.R.Chaudhary,S.K.Singh,Sunil Kumar Singh Counsel for Opposite Party :- Govt. Advocate Hon'ble Vivek Kumar Birla,J.
Hon'ble Vikas Budhwar,J.
1. Heard Sri Sunil Kumar Singh, learned counsel for the revisionist and Ms. Nand Prabha Shukla, learned A.G.A. for the State.
2. This is a Criminal Revision under Section 397/401 of the Code of Criminal Procedure, 1973 (in short ''Cr.P.C.') instituted by the Revisionist challenging the judgment and order dated 15.09.2008 passed by the Additional Sessions Judge/Special Sessions Judge, J.P. Nagar, Court no.3, in Sessions Trial No.342 of 2006 (State vs. Kailash and others), arising out of case crime No.476 of 2006, under Sections 147, 323, 504, 506, 336, 337, 452 and 304 IPC, Police Station- Hasanpur, District J.P. Nagar, wherein the accused who are 8 in number have been acquitted.
3. Though this Court had entertained the present revision while calling for the record, however, the proceedings u/s 397/401 of Cr.P.C. for enhancement/conviction of the accused, who has been acquitted is not maintainable in view of the law laid down by the Hon'ble Apex Court in Criminal Appeal Nos. 90-93 of 2022 (Joseph Stephen and others Vs. Santhanasamy and others) decided on 25.01.2022 of which the relevant extract is being quoted hereinunder:-
"8. Now so far as the first issue, whether in exercise of the revisional jurisdiction under Section 401 Cr.P.C., the High Court can convert a finding of acquittal into one of conviction and what is the procedure to be followed by the High Court, as such, the said issue is now not res integra. On the aforesaid, few decisions of this Court, referred to hereinabove, are required to be considered.
a) In the case of K. Chinnaswamy Reddy (supra), while considering the similar provision under the old Code, namely, Section 439(4) Cr.P.C., it is observed and held that "though sub-section (1) of Section 439 of the Criminal Procedure Code authorised the High Court to exercise in its discretion any of the powers conferred on a Court of Appeal by Section 423, yet sub-section (4) specifically excludes the power to convert a finding of acquittal into one of conviction". It is observed that "at that stage the revisional court stops short of finding the accused guilty and passing sentence on him by ordering a retrial".
What order should be passed by the High Court in a revision application against the order of acquittal, while exercising the revisional jurisdiction, has been dealt with and considered in paragraph 11, which reads as under:
"11. The next question is what order should be passed in a case like the present. The High Court also considered this aspect of the matter. Two contingencies arise in such a case. In the first place there may be an acquittal by the trial court. In such a case if the High Court is justified, on principles we have enunciated above, to interfere with the order of acquittal in revision, the only course open to it is to set aside the acquittal and send the case back to the trial court for retrial. But there may be another type of case, namely, where the trial court has convicted the accused while the appeal court has acquitted him. In such a case if the conclusion of the High Court is that the order of the appeal court must be set aside, the question is whether the appeal court should be ordered to rehear the appeal after admitting the statement it had ruled out or whether there should necessarily be a retrial. So far as this is concerned, we are of opinion that it is open to the High Court to take either of the two courses. It may order a retrial or it may order the appeal court to rehear the appeal. It will depend upon the facts of each case whether the High Court would order the appeal court to rehear the appeal or would order a retrial by the trial court. Where, as in this case, the entire evidence is there and it was the appeal court which ruled out the evidence that had been admitted by the trial court, the proper course in our opinion is to send back the appeal for rehearing to the appeal court. In such a case the order of the trial court would stand subject to the decision of the appeal court on rehearing. In the present case it is not disputed that the entire evidence has been led and the only defect is that the appeal court wrongly ruled out evidence which was admitted by the trial court. In the circumstances we are of opinion that the proper course is to direct the appeal court to rehear the appeal and either maintain the conviction after taking into consideration the evidence which was ruled out by it previously or to acquit the accused if that is the just course to take. We should like to add that the appeal court when it rehears the appeal should not be influenced by any observations of the High Court on the appreciation of the evidence and should bring to bear its own mind on the evidence after taking into consideration that part of the evidence which was considered inadmissible previously by it. We therefore allow the appeal subject to the modification indicated above."
b) In the case of Ram Briksh Singh (supra), after considering the decision in the case of K. Chinnaswamy Reddy (supra) and earlier decision in the case of D. Stephens v. Nosibolla, AIR 1951 SC 196, it is observed and held that the High Court in a revision application against the order of acquittal and while exercising the powers of the revisional Court can set aside an order of acquittal and remit the case for retrial where material evidence is overlooked by the trial Court.
c) Again, in the case of Sheetala Prasad (supra), it is reiterated that Section 401(3) Cr.P.C. prohibits conversion of a finding of acquittal into one of conviction and in such cases retrial or rehearing of the appeal might be ordered.
d) In the case of Ganesha (supra), it is observed in pragraphs 10 to 12 as under:
"10. Section 386(a) thus authorises the appellate court to reverse an order of acquittal, find the accused guilty and pass sentence on the person found guilty. However, sub-section (3) of Section 401 of the Code contemplates that the power of revision does not authorise a High Court to convert a finding of acquittal into one of conviction. On the face of it, the High Court while exercising the powers of revision can exercise all those powers which have been conferred on the court of appeal under Section 386 of the Code but, in view of sub-section (3) of Section 401 of the Code, while exercising such power, cannot convert a finding of acquittal into one of conviction.
11. However, in a case where the finding of acquittal is recorded on account of misreading of evidence or non-consideration of evidence or perverse appreciation of evidence, nothing prevents the High Court from setting aside the order of acquittal at the instance of the informant in revision and directing fresh disposal on merit by the trial court. In the event of such direction, the trial court shall be obliged to reappraise the evidence in light of the observation of the Revisional Court and take an independent uninfluenced by any of the observations of the Revisional Court on the merit of the case. By way of abundant caution, we may herein observe that interference with the order of acquittal in revision is called for only in cases where there is manifest error of law or procedure and in those exceptional cases in which it is found that the order of acquittal suffers from glaring illegality, resulting into miscarriage of justice. The High Court may also interfere in those cases of acquittal caused by shutting out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue has been overlooked. In such an exceptional case, the High Court in revision can set aside an order of acquittal but it cannot convert an order of acquittal into that of an order of conviction. The only course left to the High Court in such exceptional cases is to order retrial.
12. The view, which we have taken finds support from a decision of this Court in Bindeshwari Prasad Singh v. State of Bihar [(2002) 6 SCC 650 : 2002 SCC (Cri) 1448] , in which it has been held as follows: (SCC pp. 654- 55, para 12) "12. ... 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 finding of acquittal into one of conviction. The aforesaid sub- section, which places a limitation on the powers of the Revisional Court, prohibiting it from converting a finding of acquittal into one of conviction, is itself indicative of the nature and extent of the revisional power 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 order of acquittal merely because the trial court has taken a wrong view of the law or has erred in 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 private party."
9. Applying the law laid down by this Court in the aforesaid decisions and on a plain reading of sub-section (3) of Section 401 Cr.P.C., it has to be held that sub-section (3) of Section 401 Cr.P.C. prohibits/bars the 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. As observed by this Court in the case of K. Chinnaswamy Reddy (supra), if the order of acquittal has been passed by the trial Court, the High Court may remit the matter to the trial Court and even direct retrial. However, if the order of acquittal is passed by the first appellate court, in that case, the High Court has two options available, (i) to remit the matter to the first appellate Court to rehear the appeal; or (ii) in an appropriate case remit the matter to the trial Court for retrial and in such a situation the procedure as mentioned in paragraph 11 of the decision in K. Chinnaswamy Reddy (supra), referred to hereinabove, can be followed. Therefore, in the present case, the High Court has erred in quashing and setting aside the order of acquittal and reversing and/or converting a finding of acquittal into one of conviction and consequently convicted the accused, while exercising the powers under Section 401 Cr.P.C. The order of conviction by the High Court, while exercising the revisional jurisdiction under Section 401 Cr.P.C., is therefore unsustainable, beyond the scope and ambit of 401 Cr.P.C., more particularly sub-section (3) of Section 401 Cr.P.C. Issue no.1 is answered accordingly.
10. Now so far as issue no.2, namely, in a case where no appeal is brought though appeal lies under the Code, whether revision application still to be entertained at the instance of the party who could have appealed, the answer lies in sub-section (4) of Section 401 Cr.P.C. itself. Sub-section (4) of Section 401 Cr.P.C. reads as under:
"(4) 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."
10.1. It cannot be disputed that now after the amendment in Section 372 Cr.P.C. after 2009 and insertion of proviso to Section 372 Cr.P.C., a victim has a statutory right of appeal against the order of acquittal. Therefore, no revision shall be entertained at the instance of the victim against the order of acquittal in a case where no appeal is preferred and the victim is to be relegated to file an appeal. Even the same would be in the interest of the victim himself/herself as while exercising the revisional jurisdiction, the scope would be very limited, however, while exercising the appellate jurisdiction, the appellate Court would have a wider jurisdiction than the revisional jurisdiction. Similarly, in a case where an order of acquittal is passed in any case instituted upon complaint, the (other than victim) can prefer an appeal against the order of acquittal as provided under sub-section (4) of Section 378 Cr.P.C., subject to the grant of special leave to appeal by the High Court.
10.2. As observed by this Court in the case of Mallikarjun Kodagali (supra), so far as the victim is concerned, the victim has not to pray for grant of special leave to appeal, as the victim has a statutory right of appeal under Section 372 proviso and the proviso to Section 372 does not stipulate any condition of obtaining special leave to appeal like sub- section (4) of Section 378 Cr.P.C. in the case of a complainant and in a case where an order of acquittal is passed in any case instituted upon complaint. The right provided to the victim to prefer an appeal against the order of acquittal is an absolute right. Therefore, so far as issue no.2 is concerned, namely, in a case where the victim and/or the complainant, as the case may be, has not preferred and/or availed the remedy of appeal against the order of acquittal as provided under Section 372 Cr.P.C. or Section 378(4), as the case may be, the revision application against the order of acquittal at the instance of the victim or the complainant, as the case may be, shall not be entertained and the victim or the complainant, as the case may be, shall be relegated to prefer the appeal as provided under Section 372 or Section 378(4), as the case may be. Issue no.2 is therefore answered accordingly.
11. Now so far as the power to be exercised by the High Court under sub-section (5) of Section 401, Cr.P.C., 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 revision as petition of appeal. The High Court has to pass a judicial order because sub-section (5) of Section 401 Cr.P.C. 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 with the application for revision as petition of appeal and deal with the same accordingly, the High Court has to record the satisfaction as provided under sub-section (5) of Section 401 Cr.P.C. Therefore, where under the Cr.P.C. 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 the application for revision as a petition of appeal and deal with the same accordingly as per sub-section (5) of Section 401 Cr.P.C., 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.
12. Now the next question is what order should be passed in a case like the present. This Court may either set aside the impugned judgment and order passed by the High Court setting aside the acquittal and convicting the accused so as to enable the High Court to remit the matter to the first appellate Court to rehear the appeal after considering the findings recorded by it or to remit the matter to the High Court to treat the revision application as a petition of appeal against the order of acquittal, which otherwise is permissible under sub-section (5) to Section 401 Cr.P.C. As observed hereinabove, as such, while exercising the powers under sub-section (5) to Section 401 Cr.P.C. to treat the revision application as a petition of appeal, the High Court is required to pass a judicial order. However, considering the fact that even otherwise being victims they are having the statutory right of appeal as per proviso to Section 372 Cr.P.C., we deem it fit and proper to remit the matter to the High Court to treat the revision applications as petition of appeals under Section 372 Cr.P.C. and to decide the same in accordance with law and on their own merits. The same would be in the interests of all, namely, the victims as well as the accused, as the appellate Court would have a wider scope and jurisdiction as an appellate Court, rather than the revisional court."
4. In view of the law laid down by the Hon'ble Apex Court in the case of Joseph Stephen (Supra), the present revision at the instance of the revisionist herein is not maintainable and is accordingly dismissed.
Order Date :- 4.8.2022 Nitendra