State (Nct) Of Delhi vs Krishan on 6 May, 2022

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Delhi High Court - Orders

State (Nct) Of Delhi vs Krishan on 6 May, 2022

1. The instant revision petition has been filed by the Stated challenging the order dated 25.10.2016, passed by the learned Special Judge - 02, New Delhi, acquitting the Respondent herein in CA No.54994/2016, arising out of FIR No.94/2001, registered at Police Station I. P. Estate.

2. The short question which arises for consideration is as to whether the revision petition would be maintainable against the order of acquittal.

3. Learned counsel appearing for the respondent states that the issue is squarely covered in the judgement passed by this Court in State, GNCT Delhi vs. Yogesh Kochar @ Babloo in CRL.REV.P. 12/2018 and the correct course of action would be for the State to file an appeal after obtaining leave from the Court. The relevant portion of the said Judgment reads as under:

6. Section 401(4) Cr.P.C mandates that if the Code of Criminal Procedure provides for an appeal and no appeal is brought then no proceedings, by revision, shall be entertained at the instance of the parties who could have appealed. The scheme under Sections 378 Cr.P.C and 401 Cr.P.C therefore postulates that when there is a right of appeal against any order of acquittal Signature Not Verified Digitally Signed CRL.REV.P. 9/2018 Page 1 of 5 By:SHAZAAD ZAKIR Signing Date:09.05.2022 10:34:41 by any Court to the High Court, a revision petition cannot be entertained. The procedure for filing an appeal is that the State Government has to direct the Public Prosecutor to prefer an appeal. The appeal so preferred by the Public Prosecutor at the direction of the State Government can be entertained by the High Court only if the High Court grants leave. The Public Prosecutor therefore cannot file a revision petition and get over the provisions of Sections 378(1)(b) and 378(3) Cr.P.C. It is well settled that what cannot be achieved directly, cannot be achieved indirectly by resorting to a power of revision and that too while there is a specific provision barring entertaining a revision petition when a remedy of appeal is available to the State. The purpose of Section 378(3) Cr.P.C, which postulates that the State Government can file an appeal on an order of acquittal passed by any Court after getting leave of the High Court, is to prevent the Government from filing frivolous appeals and give quietus to the case because the presumption of innocence gets fortified by acquittal. The scheme clearly distinguishes between an appeal against acquittal and an appeal against conviction.

7. It is well settled that if there is a power coupled with duty mandating that an act has to be done in a particular way, it has to be done only in that way or not at all and all other modes are forbidden. The said principle has been laid down in Taylor v.

Taylor, (1876) 1 Ch.D 426, where it was observed that where a statutory power is conferred for the first time upon a Court and the mode of exercising it is pointed out, it means that no other mode has to be adopted. This judgment has been followed by the Privy Council in another celebrated judgment: Nazir Ahmad v. King Emperor, AIR 1936 PC 253, wherein it has been observed as under:

"11. ....where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden."

This principle has been consistently followed by the Supreme Court in a number of judgments (refer: State of Rajasthan v.

Signature Not Verified Digitally Signed CRL.REV.P. 9/2018 Page 2 of 5 By:SHAZAAD ZAKIR Signing Date:09.05.2022 10:34:41

Mohinuddin Jamal Alvi & ANR., (2016) 12 SCC 608; State v. Sanjeev Nanda, (2012) 8 SCC 450); Nika Ram v. State of H.P., (1972) 2 SCC 80; Delhi Airtech Services (P) Ltd. v. State of U.P., (2011) 9 SCC 354)

8. In the instant case the Trial Court has acquitted the respondent herein. The State Government had to direct the Public Prosecutor to present an appeal to the High Court. No such direction has been filed. There is no averment in the revision petition that this revision petition has been filed by the Public Prosecutor at the direction of the State Government. In view of the above, this revision petition, as framed, cannot be entertained.

9. Section 401(5) Cr.P.C reads as under:

"Section 401 Cr.P.C: High Court's powers of revision ***** Section 401(5) Cr.P.C: 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 interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly."

Section 401(5) Cr.P.C provides that when 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 interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly. The word person has not been defined in the Cr.P.C but has been defined in Section 11 of the Indian Penal Code. Section 11 IPC reads as under:

"11. "Person".--The word "person" includes Signature Not Verified Digitally Signed CRL.REV.P. 9/2018 Page 3 of 5 By:SHAZAAD ZAKIR Signing Date:09.05.2022 10:34:41 any Company or Associa-tion or body of persons, whether incorporated or not."

Section 401(5) Cr.P.C cannot apply to the State. It cannot be stated/argued that the State was under erroneous belief that no appeal would lie from the order passed by the Sessions Court.

10. No doubt, Section 397 Cr.P.C gives power to the High Court to suo moto call for and examine the records of any proceeding before any inferior criminal Court situated within its local jurisdiction 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, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. The High Court can look into the records of the case, suo moto, but it is equally well settled that such interference has to be used very sparingly. The Sessions Court has taken a view and it cannot be said that the view taken by the Sessions Court is so perverse that this Court should call for the records of the case for exercising its jurisdiction under Section 397(1) Cr.P.C. A reading of the judgment of the Sessions Court and the grounds raised in the revision petition does not persuade this Court to call for the records of this case for further examination. The Sessions Court after looking into the material on record has acquitted the respondent herein and as stated earlier it cannot be said that the findings and reasoning of the Appellate Court are so perverse that no Court could have come to such a conclusion while acquitting the respondent.

11. In view of the above, this revision petition is not maintainable and the same is dismissed on the ground of maintainability along with the pending application."

4. The present case is covered by Section 378(1)(b) Cr.P.C. which provides that the State Government has to direct the Public Prosecutor to Signature Not Verified Digitally Signed CRL.REV.P. 9/2018 Page 4 of 5 By:SHAZAAD ZAKIR Signing Date:09.05.2022 10:34:41 present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than High Court or even an order of acquittal passed by the Sessions Court in revision. In the present case, vide order dated 19.08.2016, passed by the learned ACMM, the Petitioner had been convicted for an offence under Section 420 IPC and vide order dated 15.09.2016, the Petitioner was sentenced to undergo Simple Imprisonment for four years with a fine of Rs.10,000/-. The Petitioner filed an appeal before the Appellate Court and the learned Special Judge vide order dated 25.10.2016 acquitted the Respondent.

5. The State, instead of following the mandate of Section 378(1)(b) Cr.P.C. has chosen to file a revision petition. Section 378(3) Cr.P.C provides that an appeal can be entertained only with the leave of the High Court.

6. Confronted with this, Mr. Sanjeev Sabharwal, learned APP for the State, seeks liberty to file an appeal.

7. Liberty, as prayed for, is granted.

8. The petition is dismissed, along with pending application(s), if any.

SUBRAMONIUM PRASAD, J MAY 06, 2022 S. Zakir Signature Not Verified Digitally Signed CRL.REV.P. 9/2018 Page 5 of 5 By:SHAZAAD ZAKIR Signing Date:09.05.2022 10:34:41

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Delhi High Court - Orders