Gauhati High Court
Soleman Khan vs Md. Abdul Naser Al-Faruque & Anr on 30 August, 2013
Author: T. Vaiphei
Bench: T. Vaiphei
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH)
CRL. REVN. PETN. NO. 26 of 2013
1. Soleman Khan,
S/O. Jahur Khan,
R/o. Ward No. 12, Subash Nagar,
P.S. & Dist - Dhubri, Assam.
...... P etitioner
... ... .... VS ... ... ...
1. Md. Abdul Naser Al-Faruque,
S/o. Lt. Abdul Masud Al-Faruque,
R/o. Ward No. 7, New Market,
P.O., P.S. & Dist - Dhubri, Assam.
2. Baharul Khan,
S/o. Piar Ali Mohuri,
R/o. Ward No. 7, New Market,
P.O., P.S. & Dist - Dhubri, Assam.
... ... R espondents
BEFORE
THE HON'BLE MR. JUSTICE T. VAIPHEI
Advocate for the Petitioners Mr. MH Ahmed, Advocate.
Mr. Z Rahman, Advocate.
Mr. M.R. Choudhury,
Advocate,
Mr. DM Khan, Advocate.
Advocate for the Respondent - Mr. E Hussain, Advocate.
Mr. A. Hoque, Advocate.
Mr. A. Rahman, Advocate.
Date of Hearing - 23.07.2013.
Date of Judgment - 30-8-2013
JUDGM ENT AND OR DER (CAV )
01. The validity of the judgment dated 22-11-2012 passed by the learned Additional Sessions Judge, Dhubri in Criminal Revision Petition No. Cril. Revn. No. 26/13 Page 1 of 9 25(4)/2011 refusing to convert the criminal revision petition filed by the petitioner into a petition of appeal under Section 401(5) read with Section 399(2) of the Code of Criminal Procedure ("the Code" for short) is called into question in this criminal revision petition.
02. The case of the petitioner, shorn of unnecessary details, may be noticed at the outset. The petitioner lodged a criminal complaint against the respondents before the learned Chief Judicial Magistrate, Dhubri ("CJM") complaining that the respondents made a criminal conspiracy to humiliate and defame him along with his family members by filing several false petitions before different authorities of various Departments by alleging that the petitioner is a Bangladeshi national, a smuggler, an RDX supplier, HUJI, a man of Al-Qaida, etc. The learned CJM registered his complaint as CR No. 3926/2009 and made over the case to the learned Additional Chief Judicial Magistrate, Dhubri ("the Magistrate" for short), who thereafter took cognizance of the offences under Section 500/501-B IPC and issued process against them. On putting up their appearance thereat, the learned Magistrate explained to the respondents the offences charged against them, who pleaded not guilty to the charges and claimed to be tried. In the course of trial, the petitioner examined as many as four witnesses to bring home the charge against the respondents, whose case was that of total denial. No evidence was, however, adduced by the defence. At the end of the trial, the learned Magistrate by the judgment dated 25-10-2010 acquitted the respondents of the charges.
03. Aggrieved by the acquittal, the petitioner mistakenly filed a criminal revision petition before the learned Sessions Judge, Dhubri U/s 397 of the Code instead of an appeal under the proviso to Section 372 of the Code. Cril. Revn. No. 26/13 Page 2 of 9 Subsequently, when their counsel realized their mistake, he, on 29-8- 2012, filed petition No. 809/12 before the learned Additional Sessions Judge, Dhubri ("ASJ" for short), who was now seized with the criminal revision, for converting the criminal revision to a petition of appeal along with a prayer for condonation of delay. The learned ASJ by the impugned judgment rejected the petition for conversion and dismissed the criminal revision on merit. Aggrieved by this, this second revision is preferred by the petitioner.
04. In rejecting the prayer for conversion of the criminal revision into a criminal appeal, the Appellate Court took into account the findings of the trial court and found that none of the prosecution witnesses made any whisper of statement against the petitioner, which could be said to have defamed him as punishable U/s 500/501-B IPC and that no evidence could also be adduced by the petitioner to prove that the respondents are responsible for printing and engraving defamatory statements against the petitioner or for publishing the same. The learned ASJ was, therefore, of the view that even if the criminal revision was converted into a criminal appeal, the case would still end up in the acquittal of the respondents. He, therefore, concluded and held that it would not be appropriate or just to convert the revision petition into a petition of appeal and, accordingly, dismissed the petition and upheld the judgment of acquittal passed by the learned ADJM.
05. Unfolding his submissions, Mr. M.H. Ahmed, the learned counsel for the petitioner, contends that the approach of the learned ASJ in rejecting the petition for converting the criminal revision into a criminal appeal and at the same time dismissing the criminal revision on merit is clearly wrong: Cril. Revn. No. 26/13 Page 3 of 9
he ought to have simply rejected the petition for conversion if he found the same to be not maintainable or appropriate and should not have gone into the merits of the case. He, therefore, submits that the impugned judgment is without jurisdiction, and is otherwise bad in law. He next argues that the Appellate Court has failed to appreciate the glaring fact that the counsel for the petitioner had erroneously filed the revision petition instead of a criminal appeal, which is now permitted to a victim by the newly inserted proviso to Section 372 of the Code: his counsel was at that time unaware of this insertion made in the Code of Criminal Procedure (Amendment) Act, 2008, which came into force on 31-12-2009. According to the learned counsel, this proviso for the first time confers a right upon a victim to prefer an appeal against an order of acquittal before a Court to which an appeal ordinarily lies against the order of conviction of such Court. The learned counsel finally submits that by rejecting the petition of the petitioner for converting the criminal revision filed by him into a criminal appeal, the petitioner has been wrongly penalized for the error committed by his counsel, which calls for the interference of this Court.
06. On the other hand, Mr. E. Hussain, the learned counsel for the respondents, supports the impugned order and submits that the petitioner, in any case, is not a victim within the meaning of the proviso to Section 372 of the Code and has, therefore, no locus standi to prefer a criminal appeal thereunder. It is also his contention that the evidence adduced by the prosecution witnesses could not establish sufficient evidence to convict the respondents, and the learned ASJ rightly upheld the order of acquittal of the respondents passed by the trial court, which does not call for the interference of this Court. In this view of the matter, Cril. Revn. No. 26/13 Page 4 of 9 argued the learned counsel for the respondent, there was no question of treating the revision petition as a petition for appeal as the interest of justice would not be served by such conversion: the learned ASJ rightly rejected the petition for conversion. He, therefore, strenuously urges this Court to dismiss this revision petition, which is bereft of merit.
07. Before proceeding further, I may refer to Section 372 of the Code with the proviso inserted by the amendment in 2009, which is in the following terms:
"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."
(Italics mine)
08. Even a bare reading of the proviso extracted above will indicate that it is now a matter of right for a victim to prefer an appeal against an order of acquittal or order of conviction for a lesser offence or order of inadequate sentence passed by the trial court. The word "victim" is defined by Black's Law Dictionary, 7th Edn., to mean a person harmed by a crime, tort, or other wrong. The petitioner, who claims to have been defamed by the respondents, is, therefore, a victim. The right of appeal available to a victim who wants to prefer against an order of acquittal is akin to a right of appeal against conviction available to a convict. To avail Cril. Revn. No. 26/13 Page 5 of 9 of this type of appeal, the condition imposed by sub-section (3) and sub- section (4) of Section 378, CrPC for obtaining leave to prefer an appeal against an order of acquittal is not engrafted in Section 372, CrPC. Therefore, this right cannot be equated with the conditional right of the State to prefer an appeal against acquittal before a High Court or of the right of a complainant to prefer an appeal against the order of acquittal in a case instituted by him upon a complaint. Therefore, in the case of an appeal preferred by a victim against an order of acquittal, it is a matter of right for him/her to prefer an appeal against an order of acquittal, for which no leave or special leave need be obtained from the Appellate Court. In other words, the victim has the right untrammelled by any condition to prefer a criminal appeal against an order of acquittal to the Court to which an appeal against conviction lies.
09. In the instant case, there would not have been any problem at all had the petitioner straightaway preferred an appeal before the competent appellate court: the problem cropped due to the filing a revision petition instead of an appeal envisaged under the proviso to Section 372. Therefore, the next question to be determined is, whether the Court of Sessions has the power to treat a petition for criminal revision as a petition for criminal appeal? This takes me to Sections 401(5) and Section 399(2) of the Code, which deal with the power of the High Court and the Sessions Court respectively to convert a criminal revision petition to a petition for appeal, which read thus:
"[S. 401.](5) Where under this Code, an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interest of justice so to do, the High Court may treat the application for Cril. Revn. No. 26/13 Page 6 of 9 revision as a petition of appeal and deal with the same accordingly."
* * * "[S. 399](2) Where any proceeding by way of revision is commenced before a Sessions Judge under sub-section (1), the provisions of sub-sections (2), (3), (4) and (5) of Section 401 shall, so far as may be, apply to such proceeding and references in the said sub-sections to the High Court shall be construed as references to the Sessions Judge."
10. Sub-section (5) of Section 401 of the Code thus confers upon the High Court the power to treat an application for revision as a criminal appeal and deal with the same accordingly if it is satisfied that the revision application was made on erroneous belief that no appeal for the same lies thereto and it is necessary in the interest of justice so to do. Thus, the power of treating the revision as a criminal appeal is undoubtedly there:
the requirements for exercise of such power are its satisfaction that the revision was made before it due to erroneous belief that there was no provision for appeal in connection therewith and that it is necessary in the interest of justice to treat the revision petition as a petition for appeal. To my mind, the manner in which this power is prescribed to be exercised makes it abundantly clear that the High Court is not required to examine the merit of the order of acquittal sought to be challenged: the jurisdiction of the High Court is rather confined only to examining the question as to whether the revision application was made before it on erroneous belief that no appeal lies thereto and if so, whether it will be interest of justice so to do. Thus, on the case presented by the revision-petitioner, if it is found by the learned Sessions Judge that he was on erroneous belief that there was no remedy appeal, then the learned Sessions Judge may, on his further satisfaction that it is necessary in the interest of justice so to do, treat the revision as a petition for appeal provided an appeal lies to it. Cril. Revn. No. 26/13 Page 7 of 9
11. In my judgment, the learned ASJ has apparently overlooked the scope of sub-section (2) of Section 399 read with sub-section (5) of Section 401 of the Code and has, in the process, improperly exercised his jurisdiction. If he had taken the view that the revision-petitioner did not have an erroneous belief that no appeal lies against the order under challenge, he should have rejected the petition for treating the revision petition as a petition for appeal without considering whether it was necessary in the interest of justice to treat the revision petition as a petition for appeal and then stopped there without embarking on the exercise of examining the case on merit, which is uncalled for. What actually happened before the learned ASJ is that the question as to whether the revision petition was filed by the petitioner on erroneous belief that no appeal lies thereto was not considered at all: he rather proceeded to examine on the touchstone of whether justice demands that the revision petition might be converted into a criminal appeal or not. Consequently, no finding was made by him on this aspect of the matter. In that view of the matter, the learned ASJ has failed to exercise, or has improperly exercised, the jurisdiction vested in him by law: the impugned order is unsustainable in law.
12. The result of the foregoing discussion is that this criminal revision stands allowed. The impugned order dated 22-11-2012 passed by the learned Additional Sessions Judge, Dhubri in Criminal Revision No. 25(4)/2011 is hereby set aside. The case is now remanded to the learned ASJ/Dhubri, who shall now re-examine the question as to whether the petitioner was under erroneous belief when he filed the revision petition that no appeal against the impugned order lie to him and then strictly Cril. Revn. No. 26/13 Page 8 of 9 proceed with the petition for conversion in accordance with the provisions laid down by Section 399(2) read with Section 401(5) of the Code. Since much time has now been wasted on this issue, an endeavour will be made by the learned ASJ, Dhubri to complete the exercise within a period of one (1) month from the date of receipt of this judgment. L.C. records, if requisitioned, shall be transmitted forthwith.
Judge BI PLAB Cril. Revn. No. 26/13 Page 9 of 9