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2011 DIGILAW 232 (AP)

Vavilapalli Ramesh v. Girada Rama Rao

2011-03-14

SAMUDRALA GOVINDARAJULU

body2011
ORDER This criminal petition is filed by A2 and A3 questioning judgment of the Additional Sessions Judge, Srikakulam, dated 22.6.2009 passed in CRP No.36 of 2007. 2. Originally the State represented by the Sub-Inspector of Police, Santhakaviti Police Station of Srikakulam District filed CC No.212 of 2004 against A1 to A5 alleging offences under Sections 325, 324, 323/34 IPC in the Court of Judicial Magistrate of the First Cass, Rajam. The said Magistrate by judgment dated 19.2.2007 found A 1 to A5 not guilty of the said offences and acquitted them after full trial. As against the said acquittal, the de facto complainant/1st respondent herein filed CRP No.36 of 2007 in the Sessions Court, Srikakulam under Section 397 Cr.PC. The Additional Sessions Judge, Srikakulam by the impugned judgment in CRP No.36 of 2007 passed the following: . "In view of my findings on Points 1 and 2 above, I set aside the judgment of the trial Court partly so far it relates to the acquittal of the accused Nos.2 and 3 for the offences committed by them against PW1 (revision petitioner) by beating him with sticks on his right forearm and head and causing grievous and simple injuries to him which offences are punishable under Sections 325 and 324 of the Indian Penal Code respectively and consequently I find accused No.2 guilty for the offence punishable under Section 325 IPC and accused No.3 guilty for the offence punishable under Section 324 IPC and convict them thereunder under Section 248(2) Cr.PC. The revision petition so far it is concerned with the other respondents, is dismissed. " 3. Though the Additional Sessions Judge found A2 guilty of the offence under Section 325 IPC and A3 guilty of the offence under Section 324 IPC and convicted them for the said offences, did not choose to pass any sentences. The impugned judgment did not say that appropriate sentences will be passed against them after hearing them with regard to the sentence to be passed against them. 4. The Additional Sessions Judge while invoking jurisdiction under Section 397 Cr.PC, did not notice the limitations prescribed by law in relation to revisions filed under Section 397 Cr.PC. Sections 399 and 400 Cr.PC prescribe powers of a Sessions Judge and Additional Sessions Judge to be exercised in a revision petition and they read as follows: "399. 4. The Additional Sessions Judge while invoking jurisdiction under Section 397 Cr.PC, did not notice the limitations prescribed by law in relation to revisions filed under Section 397 Cr.PC. Sections 399 and 400 Cr.PC prescribe powers of a Sessions Judge and Additional Sessions Judge to be exercised in a revision petition and they read as follows: "399. Sessions judge's powers of revision:--(1) In the case of any proceeding the record of which has been caned for by himself, the Sessions Judge may exercise an or any of the powers which may be exercised by the High Court under sub-section (1) of Section 401. (2) Where any proceeding by way of revision is commenced before a Sessions Judge under sub-section (1), the provisions of sub-sections (2), (3), (4) and (5) of Section 401 shall, so far as may be, apply to such proceeding and references in the said sub-sections to the High Court shall be construed as references to the Sessions Judge. (3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court." "400. Power of Additional Sessions judge: An Additional Sessions Judge shall have and may exercise an the powers of a Sessions Judge under this chapter in respect of any case which may be transferred to him by or under any general or special order of the Sessions Judge." 5. As per Section 399(1) Cr.PC, the Session Judge may exercise all or any of the powers, which the High Court is empowered to exercise under Section 401 (1) Cr. PC. Section 401(1) reads as follows: "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 powers 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 under Section 392." 6. The powers under sub-section (1) of Section 401 Cr.PC are restricted by subsections (2) to (5) thereof and they read as follows: "401.(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 the application for revision as a petition of appeal and deal with the same accordingly." 7. As per Section 401 (3) Cr.PC, the I High Court has no power to convert finding of acquittal into one of conviction in a revision petition filed under Section 397 Cr.PC. Having regard to the language employed in Section 399(1) and (2) Cr.PC and the limitations provided by Section 401(2) to (5) on powers of the High Court in a revision petition under Section 401 (1), this Court is of the opinion that neither the Sessions Court nor the High Court has any power to convert finding of acquittal recorded by the Magistrate into one of conviction, while exercising jurisdiction under Section 397 Cr. PC in a revision petition. In that view of the matter, the impugned judgment passed by the Additional Sessions Judge, Srikakulam converting the finding of acquittal recorded by the Judicial Magistrate of the First Class, Rajam into one of conviction insofar as the petitioners/ A2 and A3 are concerned for the offences punishable under Sections 325 and 324 IPC respectively, is without jurisdiction. The Additional Sessions Judge passed the impugned judgment without noticing the limitations in a, revision petition filed by a party who is the de facto complainant as against finding of acquittal recorded by the Magistrate. 8. The Additional Sessions Judge passed the impugned judgment without noticing the limitations in a, revision petition filed by a party who is the de facto complainant as against finding of acquittal recorded by the Magistrate. 8. In the result, the criminal petition is allowed setting aside the judgment dated 22.6.2009 passed by the Additional Sessions Judge, Srikakulam in CRP No.36 of 2007 insofar as the petitioners 1 and 2/ A2 and A3 are concerned.