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P. Ananda Rao @ Ananda Rao Vrs. R. Krishore Patanaik

7. In the decision of Rabindra Behera (supra), this Court, in the case of an acquittal under Section 256 Cr.P.C. though held that it is appealable in view of Section 378 Cr.P.C. yet treated it as a revision while exercising jurisdiction under Section 401 Cr.P.C. and remanded after restoring the case with an observation that even otherwise, the Court is not denuded of its power to suo motu revise an order of the inferior court where there is manifest error or illegality committed which resulted in miscarriage of justice. In fact, a Sessions court is having plenary powers to call for and examine records of any proceeding pending before a criminal court situate within its local jurisdiction for the purpose of satisfying itself as to the correctness of a finding recorded or returned which, however, shall not be exercised under Section 397 Cr.P.C. in relation to any interlocutory orders. Such power of a Sessions court shall have to be read with Section 399 Cr.P.C. The revisional power of this Court is specified in Section 401 Cr.P.C. In fact, where any proceeding by way of a revision is commenced in terms of Section 399(1) Cr.P.C., the provisions of sub-sections (2) to (5) of Section 401 Cr.P.C. shall apply to such proceedings and references so made therein to be construed as references to a Sessions court. However, as per Section 401(4) Cr.P.C., it is stipulated that where under the Code, an appeal lies but it has not been filed, no proceeding by way of revision shall be entertained at the instance of a party, who could have appealed. In other words, if an order is appealable but assailing it, a revision is filed, such revision cannot be entertained in view of Section 401(4) Cr.P.C. Furthermore, sub-section (5) of Section 401 Cr.P.C. specifies that where an appeal lies but an application for revision has been made by any person and the Court is satisfied that such move was under an erroneous belief that no appeal lies thereto and that it is necessary in the interest of justice so to do, the Court may treat the application as an appeal and dispose of the same accordingly. In the decision of Rabindra P. Ananda Rao @ Ananda Rao Vrs. R. Krishore Patanaik Behera(supra), this Court treated the proceeding as a revision under Section 401 Cr.P.C. for doing justice yet with a conclusion that an order of acquittal under Section 256 Cr.P.C. has to be appealed in view of Section 378 Cr.P.C. While concluding so, this Court in the aforesaid case referred to Section 401(5) Cr.P.C. and also observed that suo motu powers can be exercised in case of glaring defect or error in the procedure or point of law.

8. To sum up, an order of acquittal under Section 256 Cr.P.C. shall have to be challenged in appeal under Section 378 Cr.P.C. subject to a leave granted by the Court. If a special leave is sought for by the complainant in terms of sub-section(4) of Section 378 Cr.P.C. and the same is allowed, then the appeal is admitted and decided according to law. A revision cannot lie if the order is appealable in nature in view of Section 401(4) Cr.P.C. If erroneously a revision is filed when the order is appealable, then in that case, such revision can be treated as an appeal and disposed of as stipulated in Section 401(5) Cr.P.C. Referring to the aforesaid decision in Rabindra Behera ibid, the learned court below entertained the revision and disposed it of on merit and restored the complaint to the file of the court of learned J.M.F.C., Berhampur. In the considered view of the Court, the court below fell into error by exercising the revisional power under Section 397 read with Section 399 Cr.P.C. notwithstanding the bar contained in Section 401(4) thereof. If at all a revision is to be treated as an appeal as per Section 401(5) Cr.P.C., it can only be by this Court in case of an order of acquittal under Section 256 Cr.P.C. since because a Sessions court cannot entertain an appeal under Section 378 Cr.P.C. In other words, in case of an order of acquittal in a proceeding instituted upon complaint, an application for special leave shall have to be moved before this Court by the complainant. Such an exercise can only be undertaken by approaching this Court and in case, special leave to P. Ananda Rao @ Ananda Rao Vrs. R. Krishore Patanaik appeal is refused, no appeal from that order of acquittal shall lie under Section 378 (1) or (2)Cr.P.C. However, if the order is not appealable, a revisional court is having ample jurisdiction to rectify the mistake or error and even regularize a proceeding and not otherwise, when an appeal is to lie from such an order and furthermore, it cannot exercise jurisdiction under Section 401(5) Cr.P.C. to the extent and with reference to Section 378 Cr.P.C. where an occasion may arise for this Court alone to treat a revision as an appeal. Since this Court is possessed of the jurisdiction under Section 482 Cr.P.C., it has also the powers to pass appropriate orders and issue directions to do ex debitio justicia, a jurisdiction which does not lie with a Sessions court. A Sessions court again does not have the suo motu power alike this Court which is clearly evident from the expression 'the record of which has been called for by itself or which otherwise comes to its knowledge' (italicized to emphasize the existence of suo motu power of this Court which a Sessions court does not possess) employed in Section 401(1) Cr.P.C. Having discussed the relevant provisions, the Court reaches at a conclusion that the learned court below could not have entertained the revision for the following reasons, such as, the order under Section 256 Cr.P.C. is appealable in nature; a revision cannot lie when the order is to be appealed in terms of Section 378 Cr.P.C. with a special leave applied for by the complainant before this Court; when it cannot exercise powers under Sections 401(5) Cr.P.C. and treat a revision as an application for appeal in view of Section 378(4) Cr.P.C. and lastly, it does not have the inherent jurisdiction or for that matter, suo motu power under Section 401(1) Cr.P.C. In the ultimate analysis, it can be said that the Sessions court instead of restoring the complaint should have directed the opposite party to approach this Court in appeal as per and in accordance with Section 378(4) Cr.P.C.