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Himachal Pradesh High Court · body

2003 DIGILAW 251 (HP)

SECY. , MARKET COMMITTEE v. LALIT KUMAR

2003-08-28

M.R.VERMA

body2003
JUDGMENT M.R. Verma, J.—The common question whether appeals are maintainable or not, is involved in this appeal and Criminal Appeal Nos. 387 to 391 of 2003, and is being disposed of by this common order. 2. Brief facts relevant for the purpose of determining the aforesaid question are that the complainant. Secretary, Market Committee, Mandi, H.P. (hereafter referred to as the complainant) filed six complaints against the respondents accused (hereafter referred to as the accused) under Section 32(1) of the H.P. Agricultural Produce Markets Act in the Court of the learned Chief Judicial Magistrate, Mandi, and all the complaints resulted in conviction of the accused persons. In the appeals preferred by the accused persons, the learned Sessions Judge set aside their conviction and sentence and acquitted the accused persons. 3. Being aggrieved by the order of acquittal passed by the learned Sessions Judge, the complainant filed six revision petitions in this Court, in which the question regarding maintainability of the revision petitions arose as the remedy of the complainant was to file appeals against the acquittal. Faced with the situation, the complainant filed applications under Section 401(5) of the Code of Criminal Procedure, 1973 (hereafter referred to as the Code), i.e. Cr.M.P. Nos. 436 to 440 and 444 of 2003, in each case for treating revision petitions as-appeals. All such applications were allowed by this Court vide its orders dated 22.8.2003 passed on each application. The revision petitions, thus, came to be treated as Criminal Appeals and have been listed for admission. 4. I have heard the learned Counsel for the parties on admission. 5. The learned Counsel for the accused persons raised a preliminary objection that the appeals are not maintainable, as the complainant had not sought the requisite leave to file appeals against acquittals as required under sub-section (4) of Section 378 of the Code, therefore, all these appeals are liable to be dismissed in limine as not maintainable. To substantiate his contention, the learned Counsel for the accused relied on The Assistant Registrar of Companies, West Bengal, Calcutta v. Standard Paint Works (Pvt.) Ltd. and others etc., 1971 Cri.L.J. 827. 6. To substantiate his contention, the learned Counsel for the accused relied on The Assistant Registrar of Companies, West Bengal, Calcutta v. Standard Paint Works (Pvt.) Ltd. and others etc., 1971 Cri.L.J. 827. 6. Repelling the above contention, the learned Counsel for the complainant contended that powers of this Court to treat a revision petition as a petition of appeal under Section 401(5) of the Code are independent of the provisions of Section 378 and once the Court has directed conversion of the revision petitions into appeals, no application for grant of leave to appeal is required to be filed. To substantiate his contention, the learned Counsel relied on M/s. Guest Keen Williams Ltd. v. Shri Murari Lal, 1984 (1) Crimes 16. 7. The proceedings against the accused persons were initiated on the basis of the complaints, admittedly filed by a public servant. In view of the provisions of Section 378 of the Code, it is clear that when an order of acquittal is passed in any case instituted upon complaint, the High Court may grant special leave to appeal from the order of acquittal, on an application made by the complainant and if the leave is granted, the complainant may present an appeal to the High Court against the acquittal otherwise not. The application for grant of special leave to appeal can be made within six months of the order of acquittal if the complainant is a public servant and within 60 days of the order of acquittal in any other case. The complainant in the case in hand, however, approached the Court by way of revision petitions on the basis of the wrong legal advise given to him by the counsel, therefore, applications for conversion of the revision petitions into petition of appeals were filed under sub-section (5) of Section 401 of the Code and all such applications were allowed by this Court and the revision petitions were ordered to be treated as appeals on the ground that instead of filing the appeals the complainant had filed revision petitions on the basis of wrong legal advise given to him and, thus, evidently the revision petitions were preferred under an erroneous belief that revision petition lies against acquittal. 8. 8. Sub-section (5) of Section 401 of the Code reads as under : "(5) 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." 9. It is evident from a bare reading of the aforesaid provision of subsection (5) that it vests discretionary power in the High Court to convert a revision petition into a petition of appeal in a case where appeal lies but a revision petition has been preferred on the erroneous belief that appeal does not lie and the High Court feels that it is necessary in the interest of justice to convert the revision into appeal. It necessarily follows that once the Court is satisfied that revision must be treated as an appeal and it is so ordered, the grant of special leave to appeal is implicit in the order converting the revision petition into an appeal for the simple reason that once the petition has been treated to be a petition of appeal, it becomes an appeal preferred for all intents and purposes. Therefore, the powers under sub-section (5) supra are independent of the provisions of Section 378 of the Code. 10. In The Assistant Registrar of Companiess case (supra), the orders of acquittal passed on 4.4.1968 in cases instituted on complaints by a public servant were assailed by way of appeals. However, while filing the appeals, no applications for grant of special leave were filed and the appeals were further barred by limitation. Therefore, the Apex Court held that such appeals were rightly not entertained by the High Court because there were no applications for grant of special leave to appeal, the appeals were incompetent without grant of special leave to appeal and the appeals were barred by limitation. Thus, it was not a case of conversion of revision petition into appeal within the ambit and scope of sub-section (5) of Section 401 of the Code nor these provisions were existent at the time of the passing of the aforesaid judgment. Thus, it was not a case of conversion of revision petition into appeal within the ambit and scope of sub-section (5) of Section 401 of the Code nor these provisions were existent at the time of the passing of the aforesaid judgment. Therefore, the ratio of the case relied for the accused is not applicable to the present case. 11. In M/s. Guest Keen Williamss case (supra), the complainant had filed four revision petitions against disposal of four complaints under Section 249 of the Code. An objection was raised that by virtue of the dismissal of the complaints, the accused must be deemed to have been acquitted under Section 256 of the Code, therefore, appeals lay against the order of acquittal and the revision petitions were not competent. A Single Judge of Delhi High Court passed an order for treating the revision petitions as petitions of appeal under sub-section (5) of Section 401 of the Code. The question as to whether the revision petitions could be treated as appeals was left to be decided by a Division Bench. When the matter came up before a Division Bench of the High Court, an objection was taken that appeal against an order of acquittal is entertained by the High Court only when an application filed by the complainant under sub-section (4) of Section 378 of the Code for grant of special leave to appeal against the order of acquittal is allowed and such leave is granted. Since no such applications were filed and there was no compliance of sub-section (4) of Section 378 of the Code, the appeals were not competent. Repelling the contention, the Delhi High Court held as under: "We do not agree in this contention. The impugned order was passed under Section 249 of the Code of Criminal Procedure. It is not disputed that no appeal lay against the said order. The complainant, obviously, under a genuine belief that no appeal lay against an order under Section 249 of the Code of Criminal Procedure filed a revision petition. The impugned order was passed under Section 249 of the Code of Criminal Procedure. It is not disputed that no appeal lay against the said order. The complainant, obviously, under a genuine belief that no appeal lay against an order under Section 249 of the Code of Criminal Procedure filed a revision petition. It is only during the hearing of the revision petition that it was discovered that the impugned order was wrongly passed under Section 249 of the Code of Criminal Procedure and in fact it was an order under Section 256 of the Code of Criminal Procedure and only an appeal lay against the said order since it amounted to an order of acquittal. The learned Single Judge, accordingly, passed an order that the revision petitions be treated as petitions by way of appeals under sub-section (5) of Section 401 of the Code of Criminal Procedure. After quoting the provisions of sub-section (5) of Section 401 of the Code, it was further held as follows: "10. From a reading of the above provision it is clear that in a case where the High Court is satisfied that a revision petition was filed under an erroneous belief and in fact an appeal lay the Court was empowered to treat the application for revision as a petition of appeal and deal with the same accordingly. The provisions of subsection (5) are clearly applicable to the case in hand. The powers under Section 401 (5) are independent of the provisions of Section 378 of the Code of Criminal Procedure." 12. The facts in M/s. Guest Keen Williamss case (supra), giving rise to a question, similar to the question in hand, are similar to those of this case. Therefore, I am in respectful agreement with the Delhi High Court in holding that the provisions of Section 401(5) are independent of the provisions of Section 378 of the Code. It is, therefore, held that in a case where the High Court has exercised its discretionary power to convert revision petition to a petition of appeal, there is no requirement of seeking special leave to appeal but the grant of such leave is implicit in the order of conversion under sub-section (5) of Section 401 of the Code. 13. In view of the above, the preliminary objection raised for the accused against admission of these appeals, is unsustainable and is accordingly rejected.