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Madhya Pradesh High Court · body

2011 DIGILAW 1068 (MP)

Sheikh Taj Mansoori v. Sheikh Riyaz

2011-09-09

U.C.MAHESHWARI

body2011
ORDER (Oral) Heard on the question of maintenance of this revision 1. This revision is directed by the applicant/complainant with the prayer to convict and sentence respondent No.1 and 2 under section 325 of the IPC besides their conviction and sentence awarded by the trial Court and modified by the appellate Court. 2. As per available record, on lodging the FIR by the present applicant at P.S. Chandameti. a Crime No. 56/09 was registered against respondent No.1 and 2 at such police station for the offence under section 325, 323 read with section 34 of the IPC. After holding the investigation, such respondents were charge sheeted for the offence of the same sections. 3. On framing the charges of the aforesaid sections by the trial Court, respondent No.1 and 2 abjured the guilt, on which, the trial was held. On appreciation of the same, holding guilty to the respondent No.1 under sect' on 323 of the IPC while respondent No.2 under section 323/34 of the IPC, each of them were punished with SI 4 months with fine of Rs. 500/-, in default of depositing the fine, further one month SI while they were acquitted from the charge of sections 325 and 325/34 of the IPC. 4. The conviction and sentence part of the aforesaid judgment of the trial Court was challenged by respondent No. 1 and 2 by way of appeal under section 374 of the CrPC before the Sessions Court. On such occasion, no proceeding, appeal or revision was filed on behalf of the State or the present complainant against acquittal of respondent No.1 and 2 from the charge of section 325 of the IPC. 5. On consideration of the aforesaid appeal, the appellate Court by maintaining the conviction of respondent No.1 and 2 under sections 323 and 323/34 of the IPC respectively, set aside their jail sentence awarded by the trial Court by enhancing the amount of fine from Rs. 500/- to Rs. 1000/- against each of them, on which, it appears that respondent No. 1 and 2 have not filed any further revision against maintaining their conviction under the aforesaid sections. 6. Subsequent to decision of the aforesaid appeal, the applicant/complainant has filed this revision with a prayer to convict and sentence the respondent No. 1 and 2 under sections 325 and 325/34 of the IPC. 6. Subsequent to decision of the aforesaid appeal, the applicant/complainant has filed this revision with a prayer to convict and sentence the respondent No. 1 and 2 under sections 325 and 325/34 of the IPC. As such, the same is filed against the acquittal of respondent No.1 and 2 given by the trial Court vide judgment dated 2.2.2011. It is apparent fact on record that subsequent to passing the judgment by the trial Court acquitting respondent No.1 and 2 from the charge of section 325 of the IPC, no appeal has been preferred against such acquittal under section 378 of the CrPC on behalf of the State or under section 372 of the CrPC by the present applicant/complainant. In such premises, the applicant has by-passed the remedy of appeal provided under section 3720 the CrPC and filed this revision directly against acquittal of respondent No.1 and 2 given by the trial Court and also subsequent to adjudication of the appeal filed by respondent No.1 and 2 before the appellate Court against their conviction and sentence part under sections 323 and 323/34 of the IPC as stated above. 7. In the a for said premises, in the course of arguments of the applicant's counsel, on making some query how this revision could be entertained contrary to the provisions of section 372 of the CrPC in which the applicant had a right to file an appeal against the acquittal of respondent No.1 and 2 from the charge of sections 325 and 325/34 of the IPC, on which, instead to argue further on the question of maintainability, the counsel seeks permission to withdraw this revision with liberty to file the appeal under section 372 of the CrPC along with application for condoning the delay in filing the same before the appropriate forum. 8. Considering his submission, this revision petition is hereby dismissed. as withdrawn and not pressed. However, the applicant is extended liberty if file the appeal as prayed by his counsel, if, subsequent to decision of the appellate Court in the appeal filed by respondent No.1 and 2, is permissible under the law. Such question shall be considered and decided by the appellate Court after filing such appeal. 9. as withdrawn and not pressed. However, the applicant is extended liberty if file the appeal as prayed by his counsel, if, subsequent to decision of the appellate Court in the appeal filed by respondent No.1 and 2, is permissible under the law. Such question shall be considered and decided by the appellate Court after filing such appeal. 9. However, office is directed to return the certified copy of the impugned judgments of both the Courts below, by retaining its photocopy on record, to the applicant's counsel, enabling him to file the aforesaid appeal. 10. The revision is dismisses as withdrawn with aforesaid, observation, liberty and direction.