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2019 DIGILAW 2829 (ALL)

Kamla Devi v. State of U. P.

2019-12-19

MANISH KUMAR

body2019
JUDGMENT : Manish Kumar, J. 1. The present criminal revision has been preferred against the acquittal order dated 21.9.2002 passed by the Chief Judicial Magistrate Orai District Jalun in Complaint Case No. 1487 of 2002 under section 498-A of Indian Penal Code. 2. From the perusal of the order passed by this Court on 10.12.2002 wherein Counsel for the revisionist prays for and is allowed one week time, thereafter nothing has been brought on record. 3. The present proceedings arise out of the complaint case preferred by Smt. Kamla Devi against her husband, Jaith, Jaithani, Father-in-law, Mother-in-law, Sister-in-law and Mamya Sasur. In the complaint case all these persons have been acquitted, against the said order of acquittal, the present criminal revision has been preferred. 3. The present proceedings arise out of the complaint case preferred by Smt. Kamla Devi against her husband, Jaith, Jaithani, Father-in-law, Mother-in-law, Sister-in-law and Mamya Sasur. In the complaint case all these persons have been acquitted, against the said order of acquittal, the present criminal revision has been preferred. In case of acquittal appeal lies under section 378 is quoted below:- "Appeal in case of acquittal--(1) Save as otherwise provided in sub-section (2) and subject to the provisions of sub-section (3) and (5):-- (a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court (not being an order under Clause (a)} or an order of acquittal passed by the Court of Sessions in revision.] (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, [the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal-- (a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision.] (3) No appeal under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court. (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 complaint in this behalf, grants special leave to appeal from the order of acquittal, the complaint may present such an appeal to the High Court." 4. (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 complaint in this behalf, grants special leave to appeal from the order of acquittal, the complaint may present such an appeal to the High Court." 4. At the same time learned A.G.A. has also drawn the attention of this Court to sub-section (5) of section 401 of Cr.P.C. which is quoted below:-- "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 interest 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." 5. The perusal of sub-section 5 of section 401 of Cr.P.C. wherein it has been provided that where under this Court an appeal lies but an application for revision has been made and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and in the interest of justice so to do, the High Court may treat the application for revision as a petition of appeal. 6. From the perusal of the record it comes out that no such application was ever made by the revisionist despite a long period of about 17 years have elapsed, saying that the revision was filed under the erroneous belief that no appeal lies thereto. 7. As per the statuary provision the present criminal revision is not maintainable and hence dismissed.