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2014 DIGILAW 4192 (MAD)

M. Kasinathan v. P. Murugaiyan

2014-11-11

S.NAGAMUTHU

body2014
Judgment 1. The petitioner is the de facto complainant in C.C. No.381 of 2007 on the file of the learned District Munsif cum Judicial Magistrate, Neyveli. The first respondent herein is the sole accused in the said case. The second respondent had filed a police report alleging that the first respondent herein had committed an offence punishable under Section 406 I.P.C. and Section 6(2) r/w 6(3) of the Dowry Prohibition Act. The learned Magistrate, on completing the trial, by order dated 04.02.2010 acquitted the first respondent. The State did not chose to file any appeal against such acquittal, instead, the petitioner, being aggrieved by the order of acquittal, filed a revision before the learned Principal Sessions Judge, Cuddalore District in Crl.R.P.No.10 of 2011. The learned Sessions Judge, by order dated 01.03.2012, has dismissed the said revision holding that the said revision is not maintainable at the instance of the petitioner. Challenging the same, the petitioner has come up with this petition. 2. I have heard the learned counsel for the petitioner and also perused the records carefully. Despite service of private notice, the first respondent has not made appearance. I have also heard the learned Additional Public Prosecutor for the second respondent. 3. The learned counsel for the petitioner would submit that the lower Court has dismissed the revision on the erroneous conclusion that under Section 397 Cr.P.C., the said revision is maintainable at the instance of a private party. A perusal of the order of the learned Sessions Judge would go to show that it is not his stand that such revision is not maintainable because there is an alternative remedy of appeal instead the learned Sessions Judge has held that no revision could be maintained at the instance of a private individual in a case instituted on the police report. In my considered opinion, this conclusion arrived at by the learned Sessions Judge on the question of maintainability is directly against the provisions of Sections 397 and 401 of Code of Criminal Procedure. It is too well settled that a revision be made either suo motu or on a petition which includes a petition by a private party who is aggrieved by the impugned order. Thus, the reason stated by the learned Sessions Judge to hold that the revision is not maintainable is not correct. It is too well settled that a revision be made either suo motu or on a petition which includes a petition by a private party who is aggrieved by the impugned order. Thus, the reason stated by the learned Sessions Judge to hold that the revision is not maintainable is not correct. But, in my view, the said revision petition is not maintainable since the petitioner has got right of appeal. Sub section 4 of Section 401 of the Code of Criminal Procedure states that “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”. From this, it is very clear that if the party concerned has got right of appeal then he shall not be entitled to file a revision. 4. In this case, therefore, the question is whether the petitioner has right of appeal as against the order of acquittal, passed by the learned Magistrate. The learned Sessions Judge has, unfortunately, lost sight of the recent amendment made to Section 372 of Code of Criminal Procedure, by which a proviso has been added to Section 372 Cr.P.C., which reads as follows: “Provided that the victim shall have a right to prefer an 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 an appeal ordinarily lies against the order of conviction of such Court.” This amendment came into force with effect from 31.12.2009. Therefore, as on the date of the order of acquittal passed by the learned Magistrate i.e. on 04.02.2010, the petitioner had right of appeal under Section 372 Cr.P.C. and such appeal should have been made to the learned Principal Sessions Judge, Cuddalore District. But by mistake, the petitioner had filed criminal revision under Section 397 Cr.P.C. This Court would not have found fault with the learned Sessions Judge had he dismissed the revision as not maintainable on the ground that the petitioner had right of appeal under proviso to Section 372 Cr.P.C. Instead the learned Sessions Judge has dismissed the petition on the ground that such revision is not at all maintainable at the instance of a private party, who happens to be a witness in the case instituted on a police report. This conclusion arrived at by the learned Sessions Judge, as I have already pointed out, is contrary to law. Therefore, the same is liable to be set aside. 5. At the same time, I cannot now hold that the revision is maintainable before the learned Sessions Judge because the petitioner has got right of appeal. Now the further question which arises for consideration is that on this ground whether this petition should be dismissed thereby confirming the order of the learned Sessions Judge. In this regard, I may refer to sub section 5 of Section 401 Cr.P.C., which reads as follows: “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.” Thus, it is crystal clear that if a revision has been made under a mistaken impression that no appeal lies, the High Court has got power to convert and treat the same as appeal. Sub section 5 of Section 401 Cr.P.C. is applicable to the Court of Sessions also, as per sub section 2 of Section 399 Cr.P.C., which reads as follows: “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 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”. Therefore, the only course now available for this Court is to set aside the order of the learned Sessions Judge with a further direction to the learned Sessions Judge to convert the revision as an appeal under Section 372 of Code of Criminal Procedure and dispose of the same, after affording sufficient opportunity to the respondents herein. This alone would meet the ends of justice. 6. This alone would meet the ends of justice. 6. In the result, the Criminal Original Petition is allowed and the order of the learned Sessions Judge made in Crl.R.P.No.10 of 2011 dated 01.03.2012 is hereby set aside and the matter is remanded back to the learned Sessions Judge, Cuddalore with a further direction to the learned Sessions Judge to treat the said revision as an appeal against acquittal made under the proviso to Section 372 Cr.P.C., afford sufficient opportunity to the petitioner as well as the respondents, after issuing notice to the respondents and then dispose of the said appeal in accordance with law.