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2014 DIGILAW 1091 (AP)

S. Beebi Mariam v. State of Andhra Pradesh

2014-09-01

B.SIVA SANKARA RAO

body2014
ORDER Dr. B. Siva Sankara Rao, J. 1. This unnumbered Criminal Revision Case is filed under Sections 397 read with 401 Cr.P.C. by the petitioner-defacto-complainant, in C.C. No. 94 of 2009 covered by Cr. No. 78 of 2004 of Ontimitta Police Station, Kadapa district and in that case, the accused 1 to 4 were put to trial after the charges framed for the offences under Sections 498-A of I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act whereunder the learned II Additional Judicial Magistrate of First Class, Kadapa, by judgment, dated 19.01.2012 convicted them. Aggrieved by the same when the accused persons preferred the Crl.A. No. 14 of 2012, the learned Principal Sessions Judge. Kadapa by judgment, dated 31.01.2014, set aside the conviction judgment and acquitted the accused. 2. It is aggrieved by the same, the de facto -complainant filed this revision which came up for admission by showing the State represented by the learned Public Prosecutor as 1st respondent and the accused persons 1 to 4 as respondent Nos. 2 to 5. When the revision came up for admission, heard on the application vide Crl. R.C.(SR). M.P. No. 2620 of 2014 filed by the revision petitioner to condone delay in filing the revision for entertaining the same and it came to light the facts supra. It is therefrom when the accused persons who are the respondents-2 to 5, having been served failed to attend it is taken up to decide on merits. The learned Public Prosecutor submitted that the very revision is not maintainable when there is appellate remedy efficaciously provided under Section 372 of Cr.P.C. as per the amended Act 5 of 2009 which came into force with effect from 31.12.2009, for the de facto-complainant to maintain the regular appeal, being the victim within the definition of Section 2(wa) of the amended Cr.P.C. and the very revision is a bar once appeal is maintainable as per Section 401 of Cr.P.C. 3. Perused the material on record. 4. Now the points that arise for consideration are:- 1. Whether against the acquittal judgment of the lower appellate Court (learned Principal Sessions Judge, Kadapa) another appeal lies or it is only the revision that is to be maintained? 2. To what relief? POINT. NO. 1: 5. Perused the material on record. 4. Now the points that arise for consideration are:- 1. Whether against the acquittal judgment of the lower appellate Court (learned Principal Sessions Judge, Kadapa) another appeal lies or it is only the revision that is to be maintained? 2. To what relief? POINT. NO. 1: 5. This Court, in fact, in Crl.A. No. 1043 of 2005 vide detailed order dated 26.02.2014 discussed the scope of Section 372 of Cr.P.C. and definition of the victim. In fact, in another common order, dated 26.08.2014 in Crl.R.C. Nos. 1522 and 1523 of 2004 also in detail discussed the scope of Section 378 and 372 of Cr.P.C. Apart from it by another order of this Court dated 01.09.2014 in Crl.R.C. No. 1476 of 2014 also discussed the scope of Section 378 and 372 of Cr.P.C. and the scope of Section 378 Cr.P.C. considered by the Apex Court's expression in Subhash Chand Vs. State (Delhi Administration) 2013 (1) Laws (SC) Page 17. In the said expression, it was considered at pages 6, 9, 11 and 14 by the Apex Court only the scope of sub-Sections 1 to 6 of Section 378 Cr.P.C. in holding that the words used "in any case" under Section 378(1)(a)and (b) as well as 2 and 4 of Cr.P.C. mean that the appeal against the order of acquittal passed in any case instituted upon the complaint continuous to be filed in the Higher Court as it is the right to file an appeal against the acquittal orders of all types. In fact, in Subhash Chand (supra), the scope of Section 372 Cr.P.C. and the definition of the victim, under Section 2(wa) amended Cr.P.C. or even the proviso to Section 372incorporated by the amended Cr.P.C. by Act 5 of 2009 which came into force w.e.f. 31.12.2009, providing right of appeal to the victim came up for consideration much less discussion. 6. In fact, in Subhash Chand (supra), the scope of Section 372 Cr.P.C. and the definition of the victim, under Section 2(wa) amended Cr.P.C. or even the proviso to Section 372incorporated by the amended Cr.P.C. by Act 5 of 2009 which came into force w.e.f. 31.12.2009, providing right of appeal to the victim came up for consideration much less discussion. 6. In fact, the de facto -complainant in the crime registered on her report against her husband and in-laws for the offences punishable under Sections 498-A of I.P.C. and Sections 3 to 6 of the Dowry Prohibition Act, is definitely within the meaning victim as per Section 2(wa) of Cr.P.C. and once she is a victim thereunder she got a right of appeal against the acquittal judgment by virtue of the proviso of Section 372 of Cr.P.C. from its wording that the victim shall have a right to prefer the appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation and such appeal shall lie to the Court to which the appeal is ordinarily lies against the order of conviction of such Court. From this, the use of the words "any order" is not confined to the order of the trial Court alone in acquitting the accused or convicting for a lesser offence or imposing inadequate sentence as it is comprehensive enough to include any order passed by the lower appellate Court's even i.e. Court of Session. When such is the case, the de facto-complainant being the victim, has a right to file appeal against the lower-appellate Court's acquittal judgment reversing the conviction judgment of the trial Magistrate Court to say the appeal lies to the High Court like the appeal against the conviction of the Court of Session from the said wording of proviso to Section 372 Cr.P.C. Further Section 401(4) of Cr.P.C. clearly prohibits the maintainability of revision to entertain when there is a remedy of appeal. Accordingly, the Point No. 1 for consideration is answered holding that the revision is not maintainable but for appeal for directing the registry to return the papers to the revision petitioner to present as regular appeal. Point No. 2: 7. Accordingly, the Point No. 1 for consideration is answered holding that the revision is not maintainable but for appeal for directing the registry to return the papers to the revision petitioner to present as regular appeal. Point No. 2: 7. In the result, the unnumbered Criminal Revision Case is disposed of by directing the Registry to return the revision papers including miscellaneous petitions, if any, at the unnumbered stage along with the delay condonation petition since pending from the efficacious remedy of statutory right of appeal is available to present as a regular appeal.