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2012 DIGILAW 1065 (PAT)

Debasish Palit v. State of Bihar

2012-08-02

BIRENDRA PRASAD VERMA

body2012
Oral ORDER Heard. 2. The present revision application has been listed for consideration of the objection raised by the Stamp Reporter about the maintainability of this revision application filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’). 3. The petitioner filed complaint case No. 3137 (C) of 2004 before the learned Chief Judicial Magistrate, Patna, for various offences including the offence under Section 420 of the Indian Penal Code. On the basis of inquiry held under Section 202 Cr.P.C., cognizance was taken under Section 420 of the Indian Penal Code against accused persons, processes were issued and accused opposite party nos. 2 and 3 were summoned for facing trial. On their appearance, charge under Section 420 of the Indian Penal Code was framed against them and they were put on trial. 4. During the course of trial, the petitioner could produce three witnesses in support of his case. The accused persons also produced one defence witness and some documentary evidence in support of their defence. On consideration of the materials/evidence available on the record, the learned trial court has come to a finding that there were previous litigations as also property dispute between the parties and, therefore, strict and minute verification of evidence is required for the purpose of recording the judgment of guilt against the accused persons. The learned trial court has finally concluded that the prosecution has failed to prove the charge beyond all reasonable shadow of doubts. The learned Judicial Magistrate, 1st Class, Patna Sadar, Patna, by giving the accused opposite party nos. 2 and 3 benefits of doubts, has acquitted them for charge under Section 420 of the Indian penal Code by his impugned judgment of acquittal dated 23rd April, 2012. 5. The petitioner, the complainant of the aforesaid Complaint case, being aggrieved by the aforesaid judgment of acquittal, has filed the present revision application under Sections 397 and 401 Cr. P.C., as stated above. 6. The objection of the Stamp Reporter is that in the given facts of the case, the petitioner ought to have filed an application under Section 378(4) Cr. P.C. seeking Special Leave from this Court to file an appeal against the impugned judgment of acquittal in the aforesaid complaint case filed by him. The petitioner having not done so, should now convert this revision application into an application under Section 378(4) Cr. P.C. seeking Special Leave from this Court to file an appeal against the impugned judgment of acquittal in the aforesaid complaint case filed by him. The petitioner having not done so, should now convert this revision application into an application under Section 378(4) Cr. P.C. seeking Special leave to Appeal. 7. Learned counsel appearing on behalf of the petitioner has strongly contested the matter. According to him, though there is a legal bar under Section 401(4)Cr. P.C. against maintainability of a revision application against an order, which could have been challenged in an appeal and has not been challenged as such, yet a revision petition at the behest of the complainant against the judgment of acquittal is maintainable. He further contends that a petition under Section 378(4) Cr. P.C. is filed under criminal miscellaneous jurisdiction of the Patna High Court and is registered as ‘Special Leave Application’ and only when this Court grants such leave, an appeal can be preferred against the judgment of acquittal. He has referred to the provisions of Chapter XII, Rules 50, 51 as also Rule 68 of the Patna High Court Rules. In support of this contention that the present revision application is maintainable, he has placed reliance on a judgment of the Hon’ble Apex Court in the Case of K. Chinnaswamy Reddy Vs. State of Andhra Pradesh and Another [ AIR 1962 SC 1788 ] ( Paragraph 7). 8. Learned Additional Public Prosecutor, appearing on behalf of the State, has strongly challenged the maintainability of the present revision application and has submitted that in view of the mandates of section 378(4) read with Section 401(4) Cr. P.C. this revision application is not at all maintainable. 9. It may be relevant to mention here that when the matter was taken up, at the very out set, this Court gave an option to the learned counsel appearing on behalf of the petitioner to convert this Revision application into a Special Leave Application under Section 378(4) Cr.P.C., but he refused to do and insisted that maintainability matter may be decided on merit. Accordingly, the matter was heard at length. 10. In order to appreciate the objection raised by the Stamp Reporter that this Revision Application is not maintainable as also the points raised on behalf of the parties, it would be relevant to reproduce Sections 378(4) and Section 401(4) Cr. P, C. which read as follows:- “378. Accordingly, the matter was heard at length. 10. In order to appreciate the objection raised by the Stamp Reporter that this Revision Application is not maintainable as also the points raised on behalf of the parties, it would be relevant to reproduce Sections 378(4) and Section 401(4) Cr. P, C. which read as follows:- “378. Appeal in case of acquittal: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - -- - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - -- - -- - - - - - - - -- - - - - - - - - (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. 401. High Court’s powers of revision: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - (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.” 11. Section 378 is part of Chapter XXIX of Cr.P.C. which deals with appeals. In no uncertain terms Section 378(4) Cr. Section 378 is part of Chapter XXIX of Cr.P.C. which deals with appeals. In no uncertain terms Section 378(4) Cr. P.C. mandates that if there has been a judgment of acquittal in a complaint case and the complainant is at all aggrieved by the aforesaid judgment of acquittal, then he/she for the purpose of filing appeal shall be obliged to file an application before the High Court seeking special leave to appeal against such an order/judgment of acquittal and only on grant of such special leave, appeal can be presented before the High Court. Similarly, Section 378 sub-sections (1) and (2) provide for an appeal in case of judgment of acquittal by the State Government or by the Central Government, as the case may be. Section 378 (3) Cr. P.C. mandates that no appeal to the High Court either under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court. 12. In the considered opinion of this Court, seeking leave to appeal is a procedure prescribed under the provisions of the Cr.P.C. and nobody can raise a valid grievance against such a procedure. One has to keep in mind the basic principles of our criminal jurisprudence that in a criminal trial there is always a presumption of innocence in favour of an accused and that presumption of innocence stands fortified once there is judgment of acquittal by the learned trial court, and, therefore, such a double presumption of innocence in favour of an accused cannot and should not be lightly interfered with. Keeping in mind the aforesaid principles of double presumption of innocence, the Parliament has prescribed the procedure under Section 378 (3) and (4) Cr. P.C. Section 401(4) Cr. P.C. clearly provides that if under the provisions of the Cr.P.C. an appeal does lie and no appeal is filed, then in that case, a revision application cannot be entertained at the instance of party, who could have preferred the appeal. 13. Coming to the facts of the present case, admittedly, the petitioner was the complainant and he filed a complaint case making certain accusations against the accused opposite party nos. 2 and 3. They were put on trial and they have been acquitted by the learned trial court on appreciation of evidence/materials brought on record. 13. Coming to the facts of the present case, admittedly, the petitioner was the complainant and he filed a complaint case making certain accusations against the accused opposite party nos. 2 and 3. They were put on trial and they have been acquitted by the learned trial court on appreciation of evidence/materials brought on record. If the petitioner is at all aggrieved by the judgment of acquittal, then he has a remedy under section 378(4) Cr. P.C. Obviously, he has not resorted to that remedy and has not preferred any appeal. The learned counsel for the petitioner was granted option to convert this revision application into a Special Leave Application, but he refused to do and insisted for decision on maintainability matter. In the considered opinion of this Court, if the petitioner has not filed an appeal against the judgment of acquittal, then in view of bar created under Section 401(4) Cr. P.C., revision application under Sections 397 and 401 Cr. P.C. is not at all maintainable. 14. Coming to the judgment of the Hon’ble Apex Court in the case of K. Chinnaswamy Reddy (Supra), the Apex Court was dealing with a matter in which the police case was instituted. The matter was investigated, charge sheet was submitted by the police, and finally the accused persons were put on trial. On conclusion of trial, learned Assistant Sessions Judge, Kurnool convicted one of the accused under Section 411 of the Indian Penal Code. Other accused was convicted under Sections 457 and 380 of the I.P.C. Accused persons went in appeal before the learned Sessions Judge, who by giving benefits of doubts acquitted the accused persons. Being aggrieved by the aforesaid judgment of acquittal, a revision application was filed on behalf of the informant- Ramayya before the High court of Andhra Pradesh. The High Court allowed the aforesaid revision and remitted the matter to Sessions Judge for re-trial of the accused persons. Against the aforesaid judgment of the High Court, the matter was taken to the Hon’ble Apex Court by Special Leave by one of the accused namely K.Chinnaswamy Reddy. A question was raised on behalf of the aforesaid appellant that the revision application at the behest of the private individual was not maintainable before the High Court. Against the aforesaid judgment of the High Court, the matter was taken to the Hon’ble Apex Court by Special Leave by one of the accused namely K.Chinnaswamy Reddy. A question was raised on behalf of the aforesaid appellant that the revision application at the behest of the private individual was not maintainable before the High Court. In that background, the Hon’ble Apex Court in paragraph 7 of the judgment laid down the law that a revision application at the behest of private persons is maintainable. The ratio laid down by the Apex Court in the case of K.Chinnaswamy Reddy ( Supra) was entirely on different facts and circumstances of that case and, therefore, that ratio can not be applied in toto in the facts of the present case. 15. One has to bear in mind that private person does not necessarily mean the complainant alone. A private person shall include an informant of a criminal case or a victim under a criminal case. If the informant lodges a criminal case before the police, then the procedure is slightly different in case of acquittal. However, if the complainant files a complaint petition, then in the case of acquittal the procedure is specific under section 378 (4) Cr. P.C. By making reference of private person and by relying on the ratio in the case of K.Chinnaswamy Reddy (Supra), it cannot be held that in case of a judgment of acquittal in a complaint case, revision under Sections 397 and 401 Cr. P..C. shall be maintainable before the High Court. The submissions on behalf of the petitioner seem to be completely misconceived. Similarly, the provisions of Chapter XII, Rules 50, 51 and 68 of the Patna High Court Rules, prescribe the procedure with respect to filing of a Special Leave Application under Section 378 Cr. P.C. On leave being granted by the High Court an appeal in terms of Rules 50 and 51 of Chapter XII of the Patna High Court Rules is required to be registered and proceeded further. These Rules have nothing to do with the maintainability of the present revision application. 16. In the facts and circumstances of the case and for the reasons recorded above, the objection raised by the Stamp Reporter is upheld. The revision application is held to be not maintainable and is, accordingly, dismissed.