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2014 DIGILAW 471 (PAT)

MD. SAFDARALI v. STATE OF BIHAR

2014-04-19

I.A.ANSARI, SAMARENDRA PRATAP SINGH

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ORDER (Per: HONOURABLE MR. JUSTICE I. A. ANSARI) This appeal has put to challenge the judgment, dated 30.11.2009, passed, in Trial No. 541 of 2009, arising out of GR No.1825 of 1999, corresponding to Munger Kotwali Police Station Case No. 529 of 1999, by learned Judicial Magistrate, 1st Class, Munger, whereby, while acquitting the accused-opposite party Nos. 2 to 5, namely, Nawal Kishore Verma, Jai Ram Sah, Madan Kishore Verma and Jugal Kishore Verma, respectively, of the offence under Section 504 read with Section 149 of the Indian Penal Code, they have been convicted under Sections 147, 323 and 341 read with Section 149 of the Indian Penal Code. 2. Consequent upon their conviction, under Section 147 of the Indian Penal Code, as mentioned hereinbefore, Opposite Party Nos. 2 to 5 stand sentenced to pay fine of Rs.2000/- each and, in default of payment of fine, suffer simple imprisonment for a period of 20 days. Following their conviction under Section 341 read with Section 149 of the Indian Penal Code, the accused-Opposite Party Nos. 2 to 5 have been sentenced to pay fine of Rs.500/- each and, in default of payment of fine, suffer simple imprisonment for a period of 10 days. On having been convicted under Section 323 read with Section 149 of the Indian Penal Code, the accused-opposite party Nos. 2 to 5 have been sentenced to pay fine of Rs.1000/- each and, in default of payment of fine, suffer Rigorous Imprisonment for 1 (one) month. 3. While convicting the Opposite Party Nos. 2 to 5 and passing the sentences against them, the learned trial Court, as mentioned above, acquitted them of the offence under Section 504 of the Indian Penal Code read with Section 149 of the Indian Penal Code. 4. Aggrieved by the acquittal of the Opposite Party Nos. 2 to 5 of the offence alleged to have been committed by them under Section 504 read with 149 of the Indian Penal Code, the present petitioner, who is a victim inasmuch as he has suffered the injuries, which were allegedly caused by the Opposite Party Nos. 2 to 5, has filed this revision under Section 397 read with Section 401 of the Code of Criminal Procedure. 5. By this revision, the petitioner herein has also put to challenge the quantum of punishment imposed on Opposite Party Nos. 2 to 5, has filed this revision under Section 397 read with Section 401 of the Code of Criminal Procedure. 5. By this revision, the petitioner herein has also put to challenge the quantum of punishment imposed on Opposite Party Nos. 2 to 5 by contending that the sentences, passed against Opposite Party Nos. 2 to 5, are, in the context of the facts and circumstances of the case emerging from the evidence on record, inadequate. 6. What needs to be noted, now, is that the Opposite Party Nos. 2 to 5 herein have preferred, in the Court of the learned Sessions Judge, Munger, an appeal against their conviction and the sentences, which have been passed against them by the judgment and order, dated 30.11.2009, aforementioned. The appeal has given rise to Criminal Appeal No. 123 of 2009. 7. Thus, while an appeal has been preferred by the Opposite Party Nos. 2 to 5 herein against their conviction and the sentences passed against them by the judgment and order, dated 30.11.2009, aforementioned, the present petitioner, as a victim, has filed the present revision not only against acquittal of the Opposite Party Nos. 2 to 5 of the offence under Section 504 read with Section 149 of the Indian Penal Code, but has also, at the same time, put to challenge the adequacy of the sentences passed against Opposite Party Nos. 2 to 5. 8. The question, therefore, which has been referred to us by a learned single Judge of this Court by order, dated 05.12.2013, calls for a decision on a question as to whether the Criminal Appeal No. 123 of 2009 and Criminal Revision No. 323 of 2010 shall be heard analogously and decided together so that possibility of conflict of decisions or possibility of either appeal or the revision becoming infructuous be avoided. 9. While considering the question posed above, it is pertinent to note that as far as a victim is concerned, he has been provided with a right of appeal under the proviso to Section 372 of the Code of Criminal Procedure, by way of the Criminal Law (Amendment) Act, 2008, with effect from 31.12.2009, whereas the impugned judgment and the order were passed on 30.11.2009. 10. 10. Situated thus, it is clear that when the impugned judgment and order of sentences were passed, no right was available to the petitioner herein against the acquittal of the Opposite Party Nos. 2 to 5 of the offence allegedly committed under Section 504 read with 149 of the Indian Penal Code. 11. In fact, even after making of provisions of appeal, under the proviso to Section 372 of the Code of Criminal Procedure, as against the acquittal of Opposite Party Nos. 2 to 5, no right has been provided to a victim against the adequacy of punishment. 12. In the circumstances indicated above, when there was no right of appeal provided to a victim either against acquittal until 30.12.2009 and when no right of appeal exists even to-day in favour of a victim, against adequacy of sentence, the remedy for a victim, such as, the present petitioner, lied only in applying for revision against the judgment of acquittal and/or against the order of inadequate sentence. 13. However, in view of the fact that an appeal against the conviction of Opposite Party Nos. 2 to 5 as well as the sentences passed against them is presently pending in the Court of learned Sessions Judge, we are of the view that since the learned Sessions Judge has the power to hear this revision too, the appeal, which the opposite party Nos.2 to 5 have offered, as well as the revision, which the victim has filed, shall be heard and decided by the learned Sessions Judge, Munger. 14. Though a High Court does not have any specific provisions for transferring a revision to a Sessions Judge for hearing and disposal, we cannot ignore the fact that the High court has, indeed, its inherent power, under Section 482 of the Code of Criminal Procedure, to make such orders as may be necessary to give effect to any order under the Code of Criminal Procedure or to prevent abuse of the process of any court or, otherwise, to secure the ends of justice. 15. In the face of facts and the circumstances of the present case, we do not find that the High Court suffers from any impediment in exercising its inherent power, under Section 482 of the Code of Criminal Procedure, in transferring this revision to the learned Sessions Judge, Munger, for hearing and disposal, in order to secure the ends of justice. In the face of facts and the circumstances of the present case, we do not find that the High Court suffers from any impediment in exercising its inherent power, under Section 482 of the Code of Criminal Procedure, in transferring this revision to the learned Sessions Judge, Munger, for hearing and disposal, in order to secure the ends of justice. 16. Considering, therefore, the matter in its entirety and in the interest of justice, it is hereby directed that the learned Sessions Judge, Munger, shall hear the appeal as well as this revision and dispose of both, the appeal as well as the revision, in accordance with law. 17. In order to avoid delay in disposal of Criminal Appeal No. 123 of 2009 and Criminal Revision No. 323 of 2010, we hereby direct that the parties concerned shall appear, in the Court of the learned Sessions Judge, Munger, in connection with Criminal Appeal No. 123 of 2009 and Criminal Revision No. 323 of 2010, on 26.05.2004. (sic -2014?) 18. Learned Sessions Judge, Munger, shall expeditiously deal with the criminal appeal as well as criminal revision and dispose of the same, preferably, within a period of two months from the date of appearance of the parties concerned. 19. Let the records of the Criminal Appeal No. 123 of 2009, which has been called for by the High Court, as well as records of this criminal revision be sent, forthwith, to the learned Sessions Judge, Munger. 20. In terms of above observations and directions, the criminal revision stands disposed of.