Andhra HC (Pre-Telangana)
K.Jaya Laxmi vs G.Adi Laxmi And Another on 3 September, 2014
Author: B.Siva Sankara Rao
Bench: B.Siva Sankara Rao
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO CRIMINAL REVISION CASE No.1621 of 2014 03-09-2014 K.Jaya Laxmi.Petitioner G.Adi Laxmi and another. Respondent Counsel for the Petitioner : Sri N.V.Anantha Krishna Counsel for the Respondent: Public Prosecutor <Gist : >Head Note: ? Cases referred: 1. AIR 2010 Bombay 139 2. (3) AIR 1970 SC 829 3. AIR 1956 Mysore 62 4. 1972 Crl. LJ 1409 5. 2010 Crl.J 2687 6. 2013 (1) Laws (SC) Page 17 THE HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO CRIMINAL REVISION CASE No.1621 of 2014 ORDER:
This Criminal Revision Case is filed under Sections 397 and 401 Cr.P.C by the petitioner-complainant in C.C Nos.230 of 2013 on the file of the IX Special Magistrate, Hastinapuram, L.B.Nagar, Rangareddy District, having been aggrieved by the acquittal judgment of private complaint case under Section 138 of N.I Act impugned unsuccessful by the complainant of the private complaint case in Crl.A No.184 of 2014.
2. In fact at this stage, the learned counsel for the revision petitioner submitted that instead of filing regular appeal in both the cases, it is mistakenly filed as revision and neither Registry taken objection nor this Court at the time of admission, however, that is not a bar and these are to be returned for resubmitting as regular appeals.
3. Heard the learned counsel for the complainant/revision petitioner respectively and the learned public prosecutor. Perused the record.
4. Now the points that arise for consideration are:
i) Whether against the lower appellate Court (of sessions) another appeal that lies or revision to be maintained also in view of the bar for maintainability of revision under Section 397 read with 401 Cr.P.C when there is appeal remedy either under Section 378 (2) or (4) Cr.P.C or under Section 372 amended Cr.P.C and irrespective of the fact that within the scope of revision under Section 401 (1) Cr.P.C the High Court can exercise any powers of appeal covered by Sections 386, 389, 390 and 391 Cr.P.C?
ii) To what result?
5. POINT No.i :
a. The scope of Sections 378 (2) & (4) and 372 provisio Cr.P.C
now mainly called for consideration in answering this aspect which deal with appeal against acquittal. Sub-section 2 of Section 378 Cr.P.C deals with a police case on investigation by Delhi Special Police establishment constituted under Delhi Special Police Establishment Act, 1946 ( 25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code. Likewise, Sub-
Section 4 of Section 378 deals with acquittal against the complaint case instituted upon a complaint, but for above difference, the wording relevant is against an order of acquittal in any case. Here the scope is confined under Section 378 (4) as the private complaint case filed under Section 138 of N.I Act under Section 200 Cr.P.C and taken cognizance and the trial has been conducted as a summons case and not even from Section 143 of N.I Act as a summary trial.
b. At the cost of repetition, the wording of Section 378 (4) equal to the wording of Section 378 (2) the first line itself is, if such an order of acquittal is passed in any case. The further wording of Section 378 (2) Cr.P.C is 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), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of sub-section (3) to the High Court from the order of acquittal.
6. Here the crux is the words used in any case whether empowering even indirectly, irrespective of no specific provision like in Section 100 Cr.P.C specifically on question of law involved, to maintain a Second Appeal against acquittal judgment of First Appellate Court confirming the acquittal judgement or reversing the conviction judgment of the trial Court in the Criminal case laid on police investigation or private complaint as the case may be concerned. It can no doubt be said that a view favourable to the accused is to be accepted as per the canons of criminal jurisprudence where two views are possible. In this case right of the complainant so far as under Section 138 read with 142 of the Negotiable Instruments Act is concerned practically within the meaning of victim defined in Section 2 (wa) read with the proviso to Section 372 Cr.P.C amended by the amended Act 5/ 2009 which came into force 31.12.2009. Needless to say the scope of 372 Cr.P.C of right of victim to maintain an appeal against acquittal judgment of the trial Magistrate is to the court of Sessions. This Court in fact on the scope of Section 2 (wa) and proviso to Section 372 Cr.P.C, referring to several expressions of other High Courts and of this Court, answered the same in detail in Crl.A No.1043 of 2005, dated 26.02.2014.
7. In fact but for the limited say that order has no bar on this aspect as this revision filed now sought to be converted as regular appeal for return and representation as appeal is against the first appellate Court (Court of Sessions) acquittal judgment to say invariably in the event of maintaining the appeal or revision one must knock the doors of this Court.
8. In this regard to say further from the crux is on the wording of Section 378 (2) and (4) of Cr.P.C in any case whether confined to maintain an appeal against acquittal judgment of first appellant Court. In this regard, though a single judge expression of the Bombay High Court in R.B.Upadhyay v. State Commission for Consumer Disputes, Mumbai in referring to Section 21 of the Consumer Protection Act on the jurisdiction of the National Commission against dismissal of the consumer disputes redressal, District Forum order confirmed by State Commission Order in saying Second Appeal held wont lie before the National Commission but for to invoke the constitutional remedy against the first appellate Court order of the State Commission. It is no doubt not a case under the Criminal Procedure Code but under the Consumer Protection Act and that cannot be taken as a guidance without referring to and without comparison of the actual words used and the intendment of the legislatures and their aims and objects more particularly, from the expression of the Apex Court in Motibhai F.P & Co. Vs. Collector, Central Excise laid down that while dealing with a penal provision, it would not be proper for the Courts to extend the scope of that provision by reading into it the words, which are not there, and thereby widen the scope of that provision.
9. From the above, it is apt to refer the expressions covering the interpretation of Section 378 Cr.P.C. There are four expressions of other High Courts in this arena in setting the legal position with uniform view.
(a) The first judgement in this regard to substantiate the conclusion of the order under review is of Chairman, Village Panchayath vs. Thimmasetty no doubt in interpreting the scope of Section 417 Code of Criminal Procedure, 1899 (old) which is equivalent to Section 378 of the Code of 1973 (present) holding that the words used need not be confined to order under original jurisdiction of the lower Court for maintaining appeal in saying the leave can be granted by High Court (under Section 378 Cr.P.C (new)) under Section 417 Cr.P.C (old) to file appeal against the acquittal judgment of the first appellate Court of Sessions against the conviction judgment of the trial Magistrate Court.
(b). The said conclusion was even placed reliance by another expression of Gujarath High Court in Mohammadmiya Kalumiya v.
Majidkhan Dildarkhan by interpreting the wording of such an order of acquittal in saying order does not confined to original side order alone, as it may include appellate Court order.
(c) These two expressions giving that purposive interpretation from the legislative intent were reiterated in one of the single Judge expression of the Karnataka High Court vide K.H.Ganesh Rao v. H.Gopal and
(d) the same was confirmed by the Division Bench of the Karnataka High Court upholding the view taken by the above two expressions of the Mysore High Court and Gujarath High Court in saying appeal against the acquittal appellate Court judgment of the Court of Sessions lies before the High Court as the proper remedy and not a revision.
10. From this the position of law is fairly settled with no cloud now coming to scope of Sections 378 and 372 Cr.P.C read with Sections 386, 389, 390 and 391 leave about Section 392 Cr.P.C. Even though Sub section (1) of Section 401 speaks on the High Courts powers of revision in addition to the powers of revision under Section 317 Cr.P.C in saying the High Court can exercise any of the powers conferred on a Court of appeal under Sections 386, 389 to 392 Cr.P.C in deciding the revision. It is to say, exercise of the appellate Court powers by the High Court in deciding a revision as per Section 401 (1) Cr.P.C is different from the efficacious remedy available by way of a statutory right of appeal under Section 378 or Section 372 Cr.P.C including against the order of acquittal. While referring to Section 378 Sub-section (1), (a) and (b), the use of the words in any case, equally Sub-section 2 and 4 of Section 378 Cr.P.C the use of words in any case, it was observed by the Apex Court in Subhash Chand vs. State particularly at para Nos.6, 9, 11 and 14 that the appeal against the acquittal order passed in any case instituted upon the complaint continuous to be filed in High Court and it is right to file appeal against the acquittal orders of all types.
11. It is also pertinent to mention to support the conclusion that Sub section (3) of Section 401 maintains a rider on the powers of the revisional Court even the High Court can exercise appellate Court powers under Section 401 (1) surpa, that nothing in this Section 401 Cr.P.C shall authorise, High Court to convict by revising the finding of acquittal. It is to say if the High Court even by exercising the powers of appellate Court in deciding the revision under Section 401 read with 397 IPC; if it comes to conclusion that the acquittal judgment either of the trial Court or lower appellate Court as the case may be is unsustainable and the accused is liable to be convicted, the Court must invariably remit the matter to the lower Court under the caption retrial as remand is not well known to criminal law as laid down by the Apex Court way back in the year 1965.
12. Further sub-section (4) of Section 401 Cr.P.C clearly maintains a bar on the very maintainability of revision when an appeal lies, in its wording whether under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of a party who could have appealed. A reading of sub-section (4) of Section 401 not only prevents the party from maintaining revision when appeal lies but also mandates the Court to consider the rider. Otherwise it can be said from the latin maxim actus curia neminuem gravabit on the principle of act of Court not sanctioned by law shall prejudice right of either accused or the complainant or the victim as the case may be and as such when appeal his against even lower Appellate Courts acquittal judgment either under Section 378 Cr.P.C or under Section 372 Cr.P.C; even any revision despite not maintainable filed and entertained is required to be returned for filing as regular appeal rather deciding the revision by exercising the appellate powers, to the prejudice of either partys rights.
13. Having regard to the above irrespective of inadvertently or otherwise filed as a revision and even leave granted and admitted instead to return, from the interpretation of the provisions covered by the above expressions brought to the notice the Court of the revision is not maintainable and only appeal lies either under Section 378 (4) or 372 Proviso Cr.P.C by virtue of bar under Section 401 (4) of Cr.P.C, the court is bound to return the matters numbered as revision to the party by requiring the Registry to permit the revision petitioners herein to take return and to represent as a regular appeal.
14. Registry is directed to take note of the observation of this Order, while numbering the revisions which are not maintainable but for as a regular appeal, against the acquittal appellate judgments of Court of sessions falling either under Section 378 (2) or (4) Cr.P.C or under Section 372 Proviso Cr.P.C. Accordingly, the point No.1 for consideration is answered.
Point No.ii :
15. In the result, the revision case is disposed of by ordering for its return including pending miscellaneous petitions, if any. _________________________ Dr. B.SIVA SANKARA RAO J, 3rd September, 2014