Order of Conviction by the High Court while exercising the Revisional Jurisdiction is beyond the scope and ambit of Section 401 CrPC: Supreme Court

Supreme Court of India
PC: Supreme Court Observer
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  • Post published:January 25, 2022
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The Court observed that the order of conviction by the High Court, while exercising the revisional jurisdiction under Section 401 Cr.P.C., is therefore unsustainable, beyond the scope and ambit of Section 401 CrPC, more particularly sub-section (3) of Section 401 Cr.P.C.

The Court after analyzing the law laid down in K. Chinnaswamy Reddy v. State of Andhra Pradesh, AIR 1962 SC observed that, “on a plain reading of sub-section (3) of Section 401 Cr.PC, it has to be held that sub-section (3) of Section 401 CrPC prohibits/bars the High Court to convert a finding of acquittal into one of conviction.”

Concise Facts of the Case:

The Original Accused after facing trial for the offence punishable under Sections 147, 148, 324, 326, 307, 506(ii) r/w section 149 IPC, the Court of Chief Judicial Magistrate had convicted the accused under aforesaid charges except under Section 307 and 506(ii) IPC. Thereafter the accused preferred criminal appeal in the Court of 3rd Additional Sessions Judge (Appellate Court) against the conviction.

Similarly, the Victims (the private respondents herein) challenged the acquittal of the accused under Section 307 and 506(ii) of IPC by filing Criminal Appeal.

The First Appellate Court had allowed the appeal and acquitted the accused and the appeal filed by the victims against acquittal of the accused under Section 307 and 506(ii) was dismissed.

Thereafter, being aggrieved, the victims – private respondents filed revision application before the High Court under Section 397 r/w 401 CrPC and the High Court while exercising revisional jurisdiction set aside the order and judgment of the appellate court and restored the order of conviction passed by the trial Court and consequently convicted the accused for the offences other than the offences u/s 307 and 506.

The accused being aggrieved of the judgment of the High Court challenged the same by filing the instant appeal.

Submissions:

The appellant submitted that the High Court has erred in reversing the acquittal and convicting the accused while exercising the jurisdiction under Section 401 CrPC.

Counsel for the accused relied upon Section 401(3) CrPC and submitted that the High Court has no jurisdiction at all to convert a finding of acquittal into one of conviction and the only course open to the High Court would be to give its own finding and thereafter remit the matter either either to the trial Court or to the first appellate Court, as the case may be.

He further submitted that the proviso to Section 372 CrPC provides that the victim shall have a right to prefer an appeal against any order passed by the Court acquitted the accused or convicting for a lesser offence or imposing inadequate compensation and as per the said proviso, such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.

After relying upon sub-section 4 of Section 401 Cr.P.C, he further submitted that once the victim has a statutory right of appeal against the order of acquittal under Section 372, Cr.P.C., the revision application before the High Court shall not be entertained against the judgment and order of acquittal.

Observations of the Court:

At the outset, the Court framed following questions for its consideration:

i) Whether the High Court in exercise of the revisional jurisdiction under Section 401 Cr.P.C. is justified in setting aside the order of acquittal and convicting the accused by converting the finding of acquittal into one of conviction?
ii) In a case where the victim has a right of appeal against the order of acquittal, now as provided under Section 372 Cr.P.C and the victim has not availed such a remedy and has not preferred the appeal, whether the revision application is required to be entertained at the instance of a party/victim instead of preferring an appeal?
iii) While exercising the powers under sub-section (5) of Section 401 Cr.P.C. treating the revision application as petition of appeal and deal with the same accordingly, the High Court is required to pass a judicial order?

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With regard to question no. 1, the Court after analyzing the law laid down in K. Chinnaswamy Reddy v. State of Andhra Pradesh, AIR 1962 SC observed that, “on a plain reading of sub-section (3) of Section 401 Cr.PC, it has to be held that sub-section (3) of Section 401 CrPC prohibits/bars the High Court to convert a finding of acquittal into one of conviction. As observed in the Judgment (supra) the High Court has revisional power to examine whether there is manifest error of law or procedure etc., however, after giving its own findings on the findings recorded by the court acquitting the accused and after setting aside the order of acquittal, the High Court has to remit the matter to the trial Court and/or the first appellate Court, as the case may be.”

The Court further observed that if order of acquittal has been passed by the trial Court, the High Court may remit the matter to the trial Court and even direct retrial. However, if the order of acquittal is passed by the first appellate court, in that case, the High Court has two options available,
(i) to remit the matter to the first appellate Court to rehear the appeal; or
(ii) in an appropriate case remit the matter to the trial Court for retrial and in such a situation the procedure as mentioned in paragraph 11 of the decision in K. Chinnaswamy Reddy (supra) referred to hereinabove, can be followed.

Therefore, in the present case, the High Court has erred in quashing and setting aside the order of acquittal and reversing and/or converting a finding of acquittal into one of conviction and consequently convicted the accused, while exercising the powers under Section 401 Cr.P.C, the bench observed.

The order of conviction by the High Court, while exercising the revisional jurisdiction under Section 401 Cr.P.C., is therefore unsustainable, beyond the scope and ambit of Section 401 CrPC, more particularly sub-section (3) of Section 401 Cr.P.C.

While answering the question that in a case where no appeal is brought though appeal lies under the Code, whether revision application is still to be entertained at the instance of the party who could have appealed, the Court said that the answer lies in sub-section (4) of Section 401 Cr.P.C itself.

The Court referred to Sub-section (4) of Section 401 Cr.P.C which reads as under:

“(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.”

The Court noted that, “It cannot be disputed that now after the amendment in Section 372 Cr.P.C. after 2009 and insertion of proviso to Section 372 CrPC, a victim has a statutory right of appeal against the order of acquittal. Therefore, no revision shall be entertained at the instance of the victim against the order of acquittal in a case where no appeal is preferred and the victim is to be relegated to file an appeal”.

Even the same would be in the interest of the victim himself/herself as while exercising the revisional jurisdiction, the scope would be very limited, however, while exercising the appellate jurisdiction, the appellate Court would have a wider jurisdiction than the revisional jurisdiction.

Similarly, in a case where an order of acquittal is passed in any case instituted upon complaint, the complainant (other than victim) can prefer an appeal against the order of acquittal as provided under sub-section (4) of Section 378 Cr.P.C., subject to the grant of special leave to appeal by the High Court.

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As observed by this Court in the case of Mallikarjun Kodagali v. State of Karnataka, (2019) 2 SCC 752, so far as the victim is concerned, the victim has not to pray for grant of special leave to appeal, as the victim has a statutory right of appeal under Section 372 proviso and the proviso to Section 372 does not stipulate any condition of obtaining special leave to appeal like sub-section (4) of Section 378 Cr.P.C. in the case of a complainant and in a case where an order of acquittal is passed in any case instituted upon complaint. The right provided to the victim to prefer an appeal against the order of acquittal is an absolute right.

Therefore the Court while answering the question no. 2 observed that:

In a case where the victim and/or the complainant, as the case may be, has not preferred and/or availed the remedy of appeal against the order of acquittal as provided under Section 372 Cr.P.C. or Section 378(4), as the case may be, the revision application against the order of acquittal at the instance of the victim or the complainant, as the case may be, shall not be entertained and the victim or the complainant, as the case may be, shall be relegated to prefer the appeal as provided under Section 372 or Section 378(4), as the case may be.

With regard to question no. 3, the Court made the following observations:

Now so far as the power to be exercised by the High Court under sub-section (5) of Section 401, Cr.P.C., namely, the High Court may treat the application for revision as petition of appeal and deal with the same accordingly is concerned, firstly the High Court has to pass a judicial order to treat the application for revision as petition of appeal. The High Court has to pass a judicial order because sub-section (5) of Section 401 Cr.P.C. provides that if the High Court is satisfied that such revision 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. While treating with the application for revision as petition of appeal and deal with the same accordingly, the High Court has to record the satisfaction as provided under sub-section (5) of Section 401 Cr.P.C.

Therefore, where under the Cr.P.C. an appeal lies, but an application for revision has been made to the High Court by any person, the High Court has jurisdiction to treat the application for revision as a petition of appeal and deal with the same accordingly as per sub-section (5) of Section 401 Cr.P.C., however, subject to the High Court being satisfied that such an 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 and for that purpose the High Court has to pass a judicial order, may be a formal order, to treat the application for revision as a petition of appeal and deal with the same accordingly.

The Court ultimately remanded the matter to the High Court to treat the revision applications as petition of appeals under Section 372 Cr.P.C as the appellate Court would have a wider scope and jurisdiction as an appellate Court, rather than the revisional court.

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Case Details:
Joseph Stephen and others vs Santhanasamy and others
Criminal Appeal No: 90-93 OF 2022
Coram: Justice M R Shah and Justice Sanjiv Khanna
Date of Judgment: 25-01-2022