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2006 DIGILAW 833 (GAU)

Ningpertin v. State of Arunachal Pradesh

2006-09-05

R.B.MISRA

body2006
JUDGMENT R.B. Misra, J. 1. Heard Mr. Muk Pertin, learned Counsel for the Petitioners and Mr. N. Lowang, learned Public Prosecutor for the State of Arunachal Pradesh. 2. This Criminal Revision petition has been preferred by the Complainant under Section 401 Code of Criminal Procedure read with Regulation 26 of the Assam Frontier (Administration of Justice) Regulation, 1945 (in short called 'Regulation 1945) against the judgment and order dated 28.12.2005 passed by the Judicial Magistrate, First Class (JMFC), Pasighat in P.S. Case No. 110/2004 (GR case No. 111/2004) discharging the accused from the offences/charges under Section 337 / 323 read with 25A / 27 Arms Act. 3. The short question for consideration in the present case is whether the present Criminal Revision Petition under Section 401 Code of Criminal Procedure read with Regulation 26 of the Regulation, 1945 against the judgment and order dated 28.12.2005 passed by the learned Judicial Magistrate, First Class (JMFC), Pasighat is maintainable directly before this Court when specific provisions for that purpose are available under 'Regulation 1945' for redressal of the grievances before the learned Deputy Commissioner or Sessions Judge, however, no satisfactory answer has been forthcoming from the learned Counsel for the present applicants. 4. The scope of exercising the revisional powers has been provided under Section 401 of Code of Criminal Procedure which are necessary to be referred. 401. High Court's Powers of revision (1) 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 power conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 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 Section 392. (2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Nothing in this section shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction. (2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Nothing in this section shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction. (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) 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 that application for revision as a petition of appeal and deal with the same accordingly 5. It is clear that there is no provision under Section 401 of Criminal Procedure Code (CrPC) to entertain a revision petition against any of the order of acquittal passed by the judicial magistrate first class. Whereas, Section 378(1)(a) of Code of Criminal Procedure provides that the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence. For convenience Section 378(1)(a) of Code of Criminal Procedure is quoted as below: 378(1)(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence. 6. In Chapter in of the 'Regulation 1945'-Criminal Procedures, Regulation 15 deals the 'Administration', 'Regulation 16' deals the appointment of Additional Deputy Commissioner, Regulation 17 deals with powers of Deputy Commissioner, Regulation 18 deals with powers of Assistant Commissioner, Regulation 25 deals with appeals from the order of Assistant Commissioner, Regulation 26 deals with the provisions of Appeal to the High Court, and Regulation 28 deals with the power of revision of High Court or Deputy Commissioner. For the present case, some clauses are necessary to be referred herein. For the present case, some clauses are necessary to be referred herein. For convenience, Regulation 15, 16, 17, 18, 25, 26 and 28 reads as follows: 15. Criminal justice shall be administered by the [Deputy Commissioner], the [Assistant Commissioner] and the village authorities. 16. The [Administrator] may appoint as [Additional Deputy Commissioner] for the trial of particular cases when he thinks fit, and may direct that such [Additional Deputy Commissioner], shall for the purpose, exercise all or any of the powers of the [Deputy Commissioner] 17. The [Deputy Commissioner] shall be competent to pass any sentence warranted by law. 18. The [Assistant Commissioner] shall exercise any powers not exceeding those of a Magistrate of the 1st Class, as defined in the Code of Criminal Procedure, with which they may be invested by the [Administrator] 25. An appeal shall lie from an original decision of an [Assistant Commissioner] to the [Deputy Commissioner] 26. An appeal shall lie to the High Court against sentences of three years imprisonment and upward and sentences of death or transportation. In order cases there shall be no right of appeal, but the High Court may entertain an appeal by special leave" 28. The [High Court] or [Deputy Commissioner] may call for the proceedings of any officer subordinate to [it] and reduce, enhance or cancel any sentence passed, or remand the case for retrial, but no offence shall be punished by a sentence exceeding that warranted by law. 7. Undisputedly, in view of the Regulation 26 of the 'Regulation 1945', a criminal revision petition against the order of JMFC cannot be entertained, as Section 26 does not provide the scope of entertaining a revision, before the High Court. 8. The impugned order dated 28.12.2005 was passed by the learned Judicial Magistrate, First Class (JMFC), Pasighat in GR Case No. 111/2004) and learned JMFC is a Judicial Officer of the rank of Assistant Commissioner and against the order of JMFC/Assistant Commissioner, the specific provision of appeal has been provided under 'Regulation 25'. 8. The impugned order dated 28.12.2005 was passed by the learned Judicial Magistrate, First Class (JMFC), Pasighat in GR Case No. 111/2004) and learned JMFC is a Judicial Officer of the rank of Assistant Commissioner and against the order of JMFC/Assistant Commissioner, the specific provision of appeal has been provided under 'Regulation 25'. The 'Regulation 28' also provides that the High Court or the Deputy Commissioner may exercise the power of revision, however, in the present case, the complainants have not preferred the revision under 'Regulation 28' and this Court is not under statutory obligation to summon the records of learned Lower Court/JMFC to make a scrutiny of the order dated 28.05.2005 passed by the learned Judicial Magistrate, First Class, Pasighat or to suo moto exercise revisional power. 9. In the facts and circumstances of the present case, it is clear that the Petitioners/applicants/revisionists are praying for entertaining the present revision petition under Section 401 Code of Criminal Procedure directly against the order dated 28.12.2005 of learned JMFC, Pasighat acquitting the accused, which in my respectful consideration is legally not permissible. The applicants/revisionists/Petitioners instead of preferring an appeal before the Session Court or before Deputy Commissioner against the said order of acquittal for appropriate remedy, have directly preferred the present revision petition which cannot be allowed when specific provisions for appropriate remedy are available under Section 378(1)(a) of the Code of Criminal Procedure read with 'Regulation 25'. Since no petition/application for revision has been preferred under 'Regulation 28' of 'Regulation 1945' by the applicants/revisionists, therefore the present criminal revision Petitioner is dismissed on the ground of maintainability and not on the merits. However, dismissal of present revision petition shall not affect the merits of the case of the applicants herein in any other remedy if availed of before appropriate forum. Revision Petition dismissed