Kerala High Court
Ansamma Daniel vs State Of Kerala on 16 December, 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
THURSDAY, THE 31ST DAY OF AUGUST 2017/9TH BHADRA, 1939
Crl.MC.No. 2475 of 2015 ()
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CRRP.87/2012 of DISTRICT & SESSIONS COURT, ERNAKULAM
PETITIONER(S):
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ANSAMMA DANIEL,
AGED 41 YEARS, W/O JOSEPH ABRAHAM,
PENDANATH HOUSE, KIZHAKKUM BHAGOM,
ETTUMANOOR P.O., KOTTAYAM-686 631.
BY ADVS.SRI.S.K.AJAY KUMAR
SMT.PRIYA. H.
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, KOCHI-31.
2. K.P. THANKACHAN,
SHARIKAS VILLA,
CHERUPILLY ROAD,
KALOOR, KOCHI-17.
R1 BY PUBLIC PROSECUTOR SRI. JESTIN MATHEW
R2 BY ADV. SRI. P.A. MARTIN ROY
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY
HEARD ON 31-08-2017, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
EL
Crl.MC.No. 2475 of 2015 ()
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APPENDIX
PETITIONER(S)' ANNEXURES
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ANNEXURE-A1. TRUE COPY OF THE COMPLAINT IN CC.1728/2009
ON THE FILE OF THE JFCM NO.1, ERNAKULAM.
ANNEXURE-A2. TRUE COPY OF THE FIR IN CRIME NO.2053/2011
OF THE ERNAKULAM NORTH POLICE STATION
ANNEXURE-A3. JUDGMENT IN CC.1728/2009 OF JFCM-I,
ERNAKULAM DATED 16/12/2011.
ANNEXURE-A4. ORDER IN CR.RP. NO.87/2012 OF THE DISTRICT
AND SESSIONS COURT, ERNAKULAM DATED
18.11.2014.
RESPONDENT(S)' ANNEXURES
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NIL
TRUE COPY
P.S. TO JUDGE
EL
ALEXANDER THOMAS, J.
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Crl.M.C.No. 2475 of 2015
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Dated this the 31st day of August, 2017
O R D E R
The petitioner is accused for offence punishable under Sec.138 of the Negotiable Instruments Act in C.C.No.1728/2009 on the file of the Judicial First Class Magistrate's Court-I, Ernakulam, on the basis of the complaint filed by the 2nd respondent herein. The dishonoured cheque dated 10.6.2009 involved in this case is for Rs. 5 lakhs. It is averred that the trial court has posted the case for evidence several times and due to absence of the complainant in all the occasions, the trial court acquitted the petitioner (accused) for the abovesaid offence by virtue of the enabling powers conferred under Sec. 255(1) of the Cr.P.C.. Anx.A-3 is the judgment in that regard rendered by the trial court on 16.12.2011. aggrieved by Anx.A-3 judgment of acquittal of the trial court, the 2nd respondent complainant had filed Crl.R.P.No. 87/2012 before the Court of Sessions Judge, Ernakulam. The Sessions Court as per the impugned Anx.A-4 order dated 18.11.2014 has set aside the impugned judgment of acquittal and has directed restoration of the case to the file of the trial court and the trial court has been ordered to afford reasonable opportunity to the revision petitioner complainant to adduce evidence in support of his case and thereafter dispose of the case, in accordance with Crl.M.C.2475/15 - : 2 :-
law, etc. Anx.A-4 is the revisional order in that regard passed by the Sessions Court. It is this order that is under challenge in this petition.
2. Heard Sri.S.K.Ajaya Kumar, learned counsel appearing for the petitioner (accused), Sri.P.A.Martin Roy, learned counsel appearing for R-2 (complainant) and Sri.Justin Mathew, learned Prosecutor appearing for R-1 State.
3. The main ground on which the impugned Anx.A-4 revisional order has been challenged is that the said order has been passed without jurisdiction by the Sessions Court. It is argued by the petitioner that the remedy of a complainant, which is aggrieved by a judgment of acquittal rendered by a trial court in a complaint like the present one, is to prefer an application seeking special leave of this Court under Sec.378(4) of the Cr.P.C. for instituting criminal appeal so as to challenge the said judgment of acquittal, as held by the Division Bench of this Court in the case in Omana Jose v. State of Kerala, reported in 2014 (2) KLT 504. On this basis, it is contended that since the aggrieved complainant has a remedy in terms of Sec. 378(4)of the Cr.P.C., the revision is barred by virtue of the provisions engrafted in Sec. 401(4) of the Cr.P.C.
4. Sec.378(4) of the Cr.P.C.
"Sec.378: Appeal in case of acquittal:
xxx xxx xxx (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.
xxx xxx xxx" Crl.M.C.2475/15 - : 3 :- Sec. 401(4) reads as follows:
"Sec.401: High Court's powers of revision.-(1) ....
xxx xxx xxx (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."
5. It has been held by the Division Bench of this Court in Omana Jose v. State of Kerala, reported in 2014 (2) KLT 504, that the remedy of the complainant, who is aggrieved by an judgment of acquittal in a complaint like the present one, is to prefer a petition for special leave of this Court under Sec. 378(4) of the Cr.P.C. as mentioned herein above. A Division Bench of this Court in the judgment in State of Kerala v. Neelakandan Damodaran & anr. reported in 1974 Cri.L.J 1107 has held that where there is a remedy by way of right to appeal provided under Sec.11(2) of the Probation of Offenders Act to impugn an order passed under Sec.3 or Sec.4 of that Act, the revisional remedy under Sec.439(1) of the old Code (Cr.P.C, 1898) does not lie. It will be profitable to refer paras 5 and 6 of the abovesaid Division Bench judgment of this Court in Neelakandan Damodaran's case reported in 1974 Cri.L.J 1107, which read as follows:
'5. There is no difficulty in finding an answer to this question as S.11(2) of the Probation of Offenders Act itself provides for a right of appeal. It reads:
"Notwithstanding anything contained in the Code, where an order under S.3 or S.4 is made by any court trying the offender (other than a High Court), an appeal shall lie to the court to which appeals ordinarily lie from the sentence of the former court."
Crl.M.C.2475/15 - : 4 :-
This provision does not run counter to the provisions of the Code of Criminal procedure, as S.404 Cr. P. C. provides:
"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."
Where there is provision to file an appeal under a special statute as required in S.404 Cr. P. C., and if no appeal is filed under that statute, it is not open to a party to that proceeding to question the order, judgment or conviction in a revision under S.439 Cr. P.C. Sub-s.(5) of S.439 Cr. P. C. itself prohibits the filing of a revision under S.439(1) if the party has a right of appeal. Sub-s.(5). reads:
"Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed."
Sub-s.(2) of S.11 of the Probation of Offenders Act applies to all parties in a proceeding pending before a criminal court. The expression "party'' occurring in sub-s.(5) of S.439 Cr. P.C. includes not only private parties, but also the State if it happens to be the party as in a police case. S.11(2) of the Probation of Offenders Act, read with S.459(5) Cr. P. C. is clear that the State is bound to file an appeal against the order made either under S.3 or under S.4 of the Probation of Offenders Act, and that the remedy of the State, or for that matter, every person who is affected by the order, is to file an appeal against that order and not to file a revision against the order under S.439(1) Cr. P. C. The revision petition therefore is not maintainable. That was also the view expressed in a decision in Rajkishore Jena v. Raja alias Kalasi Sahu (AIR 1971 Orissa 193). The opinion expressed in that decision reads:
"In any view of the matter, in my opinion, the petitioner in this case who was the complainant being entitled to prefer an appeal under S.11(2) and not having done so, the revision is not maintainable."
6. In an earlier ruling of the Orissa High Court in The State v. K. Lachman Murty (AIR 1958 Orissa 204), where in a police case ending in acquittal by the trying Magistrate, the State omitted to file a regular appeal under S.417 Cr. P. C., it was held that the State cannot move the High Court through the Sessions Judge to reverse the order of acquittal in exercise of its revisional jurisdiction under S.439 Cr. P.C. It is because the State being a party for the purpose of S.439(5) Cr. P. C., that sub-section would operate as a bar against the High Court's interference in revision. It is apparent from the trend of this decision that the language of S.439(5), Cr. P. C., does not warrant the inference that the bar of that Section applies only if the court is directly approached by the party concerned and not when it is moved through the Sessions Judge or the District Magistrate, as the case may be, even though the latter officer was requested to exercise his revisional jurisdiction at the instance of the party concerned.' Crl.M.C.2475/15 - : 5 :-
6. In the judgment in K.M.Antony v. V.K. Ibrahimkutty reported in 1960 KLT 481, it was held by a learned Single Judge of this Court that where a complainant, who is aggrieved by a judgment of acquittal, who had applied for special leave under Sec.373 of the Cr.P.C, 1898, to prefer appeal against the judgment of acquittal, [which is para materia to Sec.378(4) of Cr.P.C, 1973], then the bar under Sec.439(5) of the old Code, 1898, would stand against such a petitioner in preferring a revision petition and accordingly, it was held therein that the revision petition cannot be entertained at the instance of such a petitioner, who could have sought special leave to appeal, etc. The said judgment in K.M. Antony v. V.K. Ibrahimkutty reported in 1960 KLT 481 was rendered by his Lordship Chief Justice K.Sankaran. It will be profitable to refer to paras 2 & 3 of the said judgment, which read as follows:
2. Before proceeding to consider the question whether the order of acquittal calls for any interference, it has to be examined whether this petition for revision is maintainable. Cl. (5] of S. 439 of the Code of Criminal Procedure states that "when under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed". Admittedly no appeal has been preferred against the order of acquittal in this case. The next aspect for consideration is whether an appeal could have been preferred by the Executive Authority who had preferred the complaint. I think that he could have invoked sub-section [1] or sub-section [3] of S. 417 of the Code of Criminal Procedure for preferring an appeal. The prosecution was obviously initiated by the Executive authority in his official capacity and as such it has to be deemed to be a prosecution on behalf of the State. In that capacity he could have reported the matter to the State Government with a request that under sub-section [1) of S. 417 the State Government may direct the Public Prosecutor to present an appeal to the High Court against the order of acquittal. The executive authority could as well have invoked the aid of sub-section [3] of S. 417 because the order of acquittal was passed in a case instituted upon a complaint filed by him. The learned counsel for the petitioner argues that the word "complaint" as used in subsection [3] contemplates complaints filed by private parties only. I am unable to accept this argument as sound. The word "complaint" has been defined in clause [h] of S. 4 of the Code of Criminal Procedure. That Crl.M.C.2475/15 - : 6 :-
definition is as follows: "complaint" means the allegation made orally or in writing to a magistrate, with a view to his taking action, under this Code, that some person, whether known or unknown, has committed an offence, but it does not include the report of a police officer". When the word complaint has thus been defined in the Code, there is no justification or warrant for supposing that in sub-section (3) of S. 417 of the same Code, that word has been used in a different sense or with only a restricted meaning so as to refer to complaints by private individuals only. A complaint by a public officer will also come within the definition and hence the executive officer could have applied under sub-section [3] of S. 417 of the Code for Special Leave to prefer an appeal against the order of acquittal. This view regarding the scope of sub-section [3] gains strength from a reading of sub-section [5] of S. 417. The provision in sub-section [5] is as follows: "If in any case the application under sub-section [3] 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] which relates to appeals to be preferred by the Public Prosecutor under directions from the State Government. If sub-section [1] is made use of in the first instance, it is well and good. But if sub-section [3] is invoked in the first instance, then the person who is the complainant cannot again go back and seek the aid of sub-section [1].
3. From the foregoing discussions of the scope of the relevant provisions of the Code of Criminal Procedure, it is clear that the executive officer of the Panchayat could have taken the necessary steps to prefer an appeal against the order acquitting the accused in the case. But no attempt was made in that direction and hence sub-section [5] of S. 439 of the Code of Criminal Procedure stands against the petitioner in preferring this revision petition. Accordingly I hold that this revision petition cannot be entertained at the instance of the petitioner. It is therefore dismissed."
This Court in the judgment in Krishanlal Oberoi v. Corporation of Cochin, reported in 1979 KLT 75 has held that requirement in Sec.378(4) of the Cr.P.C to secure special leave for instituting Criminal Appeal against judgment of acquittal does not mean that no appeal lies against an order of acquittal but the appeal itself lies but subject to special leave and the contention that the appeal will lie as a matter of right in order to attract the bar under Sec.401(4) of the Code is, to read in the place of words "where under this Code of appeal lies" appearing in Sec.401(4) of the Cr.P.C, with the words "where under the Code an appeal lies as a matter of right", etc., and that where the aggrieved complainant has the right to seek Crl.M.C.2475/15 - : 7 :-
special leave to prefer Criminal Appeal against judgment of acquittal no revision will lie at the instance of the party who could have appealed. The said judgment in Krishanlal Oberoi v. Corporation of Cochin, reported in 1979 KLT 75, was rendered by his Lordship Justice Subromonian Poti. It will be profitable to refer to paras 2 & 3 of the said judgment which read as follows:
'2. Without the aid of any precedents and on the plain language of sub-section (4) of S.401, I am inclined to say that an appeal does lie against an order of acquittal in any case instituted upon complaint. Of course an appeal lies only when special leave is obtained. The requirement that the complainant has to seek special leave and only if it is granted he can present the appeal, does not, according to me, mean that no appeal lies against the order of acquittal. Appeal does lie, but subject to special leave. The contention of the complainant that appeal must lie as a matter of right in order to attract the bar of S.401 (4) of the Code is, as observed by the High Court of Allahabad in City Board Mussorie v. Sri. Kishun Lal (AIR. 1959 Allahabad 413), to read in place of the words, "where under this Code an appeal lies" the words 'where under the Code an appeal lies as a matter of right'. The High Court of Madras has in the decision reported in Municipal Commr. Nagercoil v. Annapakkiyam (1967 Crl. L. J. 898) expressed the same view. That leave has to be obtained before an appeal is filed does not amount to saying that there is no right of appeal is the view expressed by many of the High Courts of India. The High Court of Allahabad in the decisions in Ram Narain v. Mool Chand (AlR. 1960 Allahabad 296) has expressed this view. The same view has been expressed by the High Court of Assam in Abdul Majid v. Adai (1970 Crl. L. J. 950), the High Court of Bombay in the decision reported in State of Bombay v. Tayawade (AIR. 1959 Bombay 94), the Gujarat High Court in the decision in Sankalchand v. Khengaram (AIR. 1969 Gujarat 342) and the High Court of Madras in In re Seeni Ammal (AIR. 1960 Mad. 573), Municipal Commissioner, Nagercoil v. Chinnammal (1966 Crl. L. J. 1461), and in the later decision in Municipal Commissioner, Nagercoil v. Annapappiyam (1967 Crl. L. J. 898), already adverted to. The mere fact that right of appeal is made subject to obtaining leave makes no difference is the view expressed by the decision of the Orissa High Court in Dukhishyam Sahu v. Bidyadhar Sahu (AIR. 1966 Orissa
45). Relying on the decision of the Allahabad High Court in City Board Mussorie v. Sri. Kishan Lal (AIR. 1959 All. 413), that of the Bombay High Court in State of Bombay v. Tayawade (AIR. 1959 Bombay 94) and that of the Punjab High Court in Shiv Prashad v. Bhagwan Das (AIR. 1958 Punjab
228) the same view was expressed in Chairman, Village-Panchayath Nagathihalli v. N. Thimmasetty (AIR. 1956 Mysore 62). This Court had in the decision in Antony v. Ibrahimkutty (I960 KLT. 481) expressed the same view and Chief Justice Sankaran expressed the view where an appeal could be filed by a complainant in a private complaint and he has not sought to file an appeal, a revision at his instance would not be entertainable.
Crl.M.C.2475/15 - : 8 :-
Tripura3. the decision in Raj Kumar v. Amar Chand (1962 (1) Crl. L. J. 677).
I may notice the contrary view of the Judicial Commissioner of in The view expressed therein is that it cannot be said that the complainant has a right of appeal against an acquittal within the meaning of S.439 (5) and that is because it is subject to obtaining special leave and therefore the right is only to file an application for leave. The learned Judicial Commissioner has noticed the contrary view expressed by many of the High Courts in India and I do not think that the reasoning in those decisions has been properly met by the learned Judicial Commissioner in the Tripura case. In fact it is evident from the judgment that the view expressed by the learned Judicial Commissioner is merely obiter. Though the Judicial Commissioner, Manipur in the decision in Raringsui Thagkhul v. Yangmaso (AIR. 1963 Manipur 17) has expressed the view that a revision could be entertained by the Sessions Judge in a case where an appeal lies at the instance of the party who could have applied for special leave to appeal, the judgment is not supported by any reasoning, and the learned Judicial Commissioner merely follows his earlier decisions. Though the contrary view of the Bombay and Allahabad High Courts is noticed the learned Judicial Commissioner observes that he sees no reason to change his view. I may notice here that the said view has not been followed by the same Court later in S. Laingam Singh v. Amuyama Singh (1971 Crl. L. J. 404). It has been noticed by the Judicial Commissioner, Manipur that the earlier decision does not discuss the question and the Commissioner prefers to follow the preponderance of the authorities to the contra.'
7. Further this Court in Muhammad v. State of Kerala reported in 1993(2) KLT 46 has held that by virtue of the provisions contained in Sec.399 of the Cr.P.C, Sessions Court is entitled to exercise all or any other powers available under Sec.401(1) and that the provisions of sub- secs.2, 3 and 4 of Sec.401 would also apply when the Sessions Judge is exercising powers under Sec.397 by virtue of the provisions in Sec.399 and that the bar engrafted in Sec.401(3) that a High Court sitting in revision shall not convert an order of acquittal to an order of conviction is equally applicable to a Sessions Judge while exercising the power of revision in view of Sec.397 r/w Sec.399 of the Cr.PC. It will be profitable to refer to para 3 of the Muhammad v. State of Kerala reported in 1993 (2) KLT 46 which reads as follows:
Crl.M.C.2475/15 - : 9 :-
"3. By virtue of S.399 Cr.P.C. Sessions Judge is entitled to exercise all or any of the powers which may be exercised by the High Court under sub- section (1) of S.401. S.401(l) provides that in the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Ss. 386, 389, 390 and 391 or on a Court of Sessions by S.307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by S.392. Section 399(2) makes the position clear that 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 S.401 shall so far as may be, apply to such preceding and references in the said sub-sections to the High Court shall be construed as references to the Sessions Judge. Thus, it can be seen that S.401 (3) equally applies so far as a Sessions Judge is concerned. The above sub-section makes it clear that the revisional court whether the High Court or Sessions Court cannot convert a finding of acquittal into one of conviction. It is pertinent to note that the State has not filed any appeal against the acquittal of the revision petitioner for the offence under Ss.l6(i)(a)(i) read with Ss.7(i) and (iii) and 2 (l-a)(a) of the P.F.A. Act. In the suo motu revision taken by the Sessions Judge he cannot obviously convert a finding of acquittal into one of conviction in view of the specific interdict in S.401(3) Cr.P.C. That being the position, the order of the Sessions Judge cannot be sustained."
8. This Court in Thampi v. Sadanandan reported in 1998 KLJ 810 = 1998 (1) KLT 39 has held that there is no doubt that with the special leave of the High Court, an appeal can be preferred before it against an order of acquittal passed by a subordinate criminal court in a case instituted upon a complaint and Sec.401(4) lays down that 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 and that where no application for special leave has been filed before the High Court against the judgment of acquittal rendered by the trial court, then revision filed before the Sessions Court is not maintainable and that the impugned order passed by the Sessions Judge in that case is without jurisdiction. This Court in the judgment in Shaji Jacob v. Shaji P.V & anr. reported in 2014 (4) KHC 98 has again Crl.M.C.2475/15 - : 10 :-
reiterated the above said legal position that the bar engrafted in Sec.401 (4) that where an appeal lies and no appeal is brought about, then revision is not maintainable before the High Court, etc., would be equally applicable to a Sessions Court while exercising revisional powers by virtue of the provisions contained in Sec.399(2) of the Cr.P.C., and accordingly, it was held that where the complainant, who has filed special leave to institute a criminal appeal, has not availed that remedy, then he cannot maintain a revision in terms of the provisions contained in Secs.397 & 401 of the Cr.P.C. The above said view has been reiterated in Vinay Kumar v. State of U.P & anr. reported in 2007 Cri.L.J 3161, by holding that where an order of acquittal has been rendered under Sec.256(1) of the Cr.P.C, then the complainant has a remedy to file special leave to appeal to High Court under Sec.378(4) and if no such proceedings are initiated, then revision would not be maintainable at the behest of such complainant before the Sessions Judge in view of the prohibitions contained in Sec.401(4) of the Cr.P.C. The same view has been reiterated by the Bombay High Court in State of Bombay v.
N.G.Tayawade, reported in AIR 1959 Bombay 94 as well as the decision in Dharamaji Gangaram Gholem & ors. v. Vithoba Soma Khade & anr. reported in 1992 Cri.L.J 870 by holding that in view of the provisions for special leave under Sec.378(4), the aggrieved complainant cannot impugn the judgment of acquittal by revision.
9. Various case laws in this regard have been dealt with in detail Crl.M.C.2475/15 - : 11 :-
in the order dated 20.6.2017 rendered by this Court in Crl.M.C.No. 2496/2017. In the light of these aspects, it is only to be held that the Sessions Court lacks revisional jurisdiction in the facts of this case, inasmuch as the remedy of the aggrieved complainant was to prefer an application for special leave as envisaged under Sec. 378(4) of the Cr.P.C. The upshot of the above discussion is that the impugned Anx.A-4 revisional order passed by the Sessions Court is without jurisdiction and accordingly the impugned Anx.A-4 order will stand set aside and rescinded. However, it is made clear that the 2nd respondent complainant will be at liberty to work out his remedies in accordance with law, in case he has any grievances against the impugned judgment of acquittal rendered by the trial court as per Anx.A-3 herein.
With these observations and directions, the aforecaptioned Crl.M.C. stands finally disposed of.
Sd/-
sdk+ ALEXANDER THOMAS, JUDGE
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P.S. to Judge