Madras High Court
Thangaraj vs S. Aruljothi And Shanmugavel on 11 February, 2008
ORDER M. Jeyapaul, J.
1. The petitioner in the above petitions is the complainant in a case under Section 138 of the Negotiable Instruments Act. He successfully got an order of conviction as against the accused in S.T.C. Nos. 1665 and 1664 of 2003 on the file of the learned Judicial Magistrate No. VII, Coimbatore. The accused took up the matters in appeal in C.A. Nos. 35 and 34 of 2007 before the Additional District and Sessions Judge, Fast Track Court No. II, Coimbatore. The learned Additional District and Sessions Judge, Fast Track Court No. II, Coimbatore, by his order dated 06.07.2007 chose to acquit both the accused setting aside the order of conviction recorded by the trial court in S.T.C. Nos. 1665 and 1664 of 2007.
2. The petitioner who is the complainant in both the cases has now preferred criminal revisions as against the acquittal recorded in Criminal Appeal Nos. 34 and 35 of 2007 on the file of the Additional District and Sessions Judge, Fast Track Court No. II, Coimbatore.
3. The office entertained a doubt as to whether criminal revision can be preferred as against the order of acquittal recorded by the appellate forum.
4. The learned Counsel appearing for the petitioner citing the provision under Section 401(5) of the Criminal Procedure Code represented the papers submitting that the Court has ample power to convert the criminal revision cases filed erroneously into criminal appeals and therefore the criminal revisions as such are maintainable. Referring to Section 378(4) of the Criminal Procedure Code it has been submitted therein that only in a case where the trial court passed an order of acquittal an appeal shall be preferred but not in a case where the appellate court recorded an order of acquittal as against the accused.
5. As the maintainability of the criminal revision cases preferred by the petitioner at S.R. stage was questioned, the matter was posted before this Court for determination as to the maintainability of this criminal revision case.
6. Learned Counsel appearing for the petitioner reiterated the stand taken by him while representing the papers banking heavily on the aforesaid provisions under Sections 401(5) and 378(4) of the Criminal Procedure Code. His submission is two fold. If a trial court returned a verdict of acquittal then there is a bar under Section 378(4) of the Criminal Procedure Code and therefore only an appeal as against the order of acquittal recorded by the trial court shall be preferred before the High Court. But in these cases, the appellate forum recorded an order of acquittal and therefore Section 378(4) of the Criminal Procedure Code does not create an embargo for filing criminal revision before this Court as against the order of acquittal in the appeal preferred by the accused.
7. The next submission made by the learned Counsel appearing for the petitioner is that even if the revision has been preferred on the erroneous belief that no appeal would lie, then this Court invoking the provisions under Section 401(5) of the Criminal Procedure Code shall convert the criminal revision case into an appeal and decide the matter on merit.
8. The learned Government Advocate (Crl. Side) was directed to assist this Court in these matters. He having gone into the relevant provisions governing the issues involved in these matters would contend that the phrase 'such an order of acquittal' employed in Section 378(4) of the Criminal Procedure Code would mean an original or appellate order of acquittal passed by any Court for that matter other than the High Court as referred specifically under Section 378(1) of the Criminal Procedure Code. Further he would submit that only in a case where the Court while hearing the criminal revision case after taking the same on file comes to the conclusion that criminal appeal alone would lie, then it can invoke Section 401(5) of the Criminal Procedure Code, but when the Office has pointed out the mistake committed by the petitioner in preferring the criminal revision case instead of criminal appeal, Section 401(5) of the Criminal Procedure Code does not come to his rescue. He would also bring to the notice of this Court that the High Court has no power while dealing with the case of revision to convert a finding of acquittal into one of conviction. The only course left open to the High Court, in case the High Court comes to the conclusion that a finding of acquittal in a case of revision will have be upset, the case will have to be necessarily remanded to the trial court for rendering appropriate finding.
9. It is relevant to refer to Section 378 of the Criminal Procedure Code which reads as follows:
378. Appeal in case of acquittal. - (1) Save as otherwise provided in Sub-section (2), and subject to the provisions of sub-sections (3) and (5),:
(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;
(b) 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 an acquittal passed by any Court other than a High Court (not being an order under Clause (a) or an order of acquittal passed by the Court of Session in revision.) (2) If such an order of acquittal is passed in any case 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, subject to the provisions of Sub-section (3), also direct the Public Prosecutor to present an appeal:
(a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;
(b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court (not being an order under Clause (a)) or an order of acquittal passed by the Court of Session in revision).
(3) (No appeal to the High Court) under Sub-section (1) or Sub-section (2) shall be entertained except with the leave of the High Court.
(4) If such 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.
(5) No application under Sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.
(6) If in any case, the application under Sub-section (4) for the grant of special leave, to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under Sub-section (1) or under Sub-section (2).
10. In Sub-sections (1) and (2) of Section 378 of the Criminal Procedure Code, the State Government and the Central Government, as the case may be, have been given discretion to direct the Public Prosecutor concerned to prefer an appeal as against an original or appellate order of acquittal passed by any Court other than the High Court. Sub-sections (1) and (2) of Section 378 of the Criminal Procedure Code are subject to the scheme of Sub-section (4) of Section 378 of the Criminal Procedure Code. In Sub-section (4) of Section 378 of the Criminal Procedure Code, the legislature has very carefully used the phrase 'such an order of acquittal' for the purpose of giving scope to the complainant to prefer straight-away an appeal to the High Court. As rightly pointed out by the learned Government Advocate (Crl. side) whose assistance was beneficially capitalized by this Court, the phrase 'such an order of acquittal' found under Section 378(4) of the Criminal Procedure Code has direct proximity to Sections 378(1) and 378(2) of the Criminal Procedure Code. It has been categorically adumbrated under Section 378(1) of the Criminal Procedure Code that an appeal would lie only to the High Court not only from an original order of acquittal but also from the appellate order of acquittal passed by the Courts below.
11. In the considered opinion of this Court the phrase 'such an order of acquittal' found in Section 378(4) of the Criminal Procedure Code refers not only an original order, but also an appellate order of acquittal passed by the subordinate Court as adumbrated in Sub-section (1) of Section 378 of the Criminal Procedure Code. As Sub-section 1 to 3 of Section 378 of the Criminal Procedure Code specifically refers to the State Appeal, the legislature in its wisdom has thought it fit to refer an order of acquittal culminated in the case originated based on a complaint by a private party under Section 378(4) of the Criminal Procedure Code. Just because the word 'complainant' has been mentioned in Sub-section (4) of Section 378 of the Criminal Procedure Code, by no stretch of imagination, this Court can jump to a conclusion that Sub-section (4) of Section 378 of the Criminal Procedure Code refers only to the order of acquittal passed by the trial court on the case launched by a private complainant and not the acquittal recorded by the appellate forum.
12. Further, the High Court which exercises the powers of revision cannot convert a finding of acquittal into one of conviction as per Sub-section (3) of Section 401 of the Criminal Procedure Code. The only course left open for the High Court sitting in revision as submitted by the learned Government Advocate (Crl. side) is to remand the matter for a fresh determination of the case in case the High Court comes to the conclusion that the order of conviction is made out in the case.
13. Here in these cases the petitioner seeks virtually an order of conviction setting aside the order of acquittal recorded by the appellate forum. Therefore, the High Court sitting in revision cannot as per law do that job.
14. Of course as submitted by the learned Counsel appearing for the petitioner this Court has ample power under Sub-section (5) of Section 401 of the Criminal Procedure Code to treat the revision as an appeal in case the High Court is satisfied that the revision was preferred under the erroneous belief that an appeal alone would lie before the High Court.
15. It is made clear that Section 401(5) of the Criminal Procedure Code would apply only in a case where the revision was taken on file and the High Court while hearing the criminal revision case comes to the decision that only an appeal would lie but revision has been preferred under an erroneous belief. But not in a case where even before the revision was taken on file by the Court the mistake was pointed out to the petitioner concerned to set-right the mistake in presentation. The petitioner might have preferred a criminal revision case under an erroneous belief before this Court. But when it is pointed out by the Registry referring to Section 378(4) of the Criminal Procedure Code, the petitioner has to necessarily file an appeal before this Court, taking back the revision papers presented erroneously. The Court is not prepared to accept the submission made by the learned Counsel for the petitioner that inasmuch as this Court has an ample power to convert the revision into an appeal, the revision can be taken on file and while hearing the revision this Court can convert the revision into an appeal. When the error is deducted at the entry level there is no point in entertaining the revision and thereafter exercising the jurisdiction of this Court under Section 401(5) of the Criminal Procedure Code to convert the revision into an appeal.
16. In view of the above, it is found that the petitioner who is the complainant in both the cases having suffered orders of acquittal has to necessarily prefer an appeal taking back the revision papers presented before this Court.
17. Therefore the Registry is directed to return the papers for presenting it in the form of appeal within fifteen days from today.