PAWAN KUMAR TIWARI v. STATE OF CHHATTISGARH THROUGH POLICE STATION
2019-09-27
RAJANI DUBEY
body2019
DigiLaw.ai
JUDGMENT Rajani Dubey, J. - As all these revision petitions arise out of the common judgment and order dated 01.09.2018, they are being disposed of by this order. Challenge in the present revision petitions is to the judgment and order dated 01.09.2018 passed by the Sixth Additional Sessions Judge, Bilaspur in Cr. A. Nos. 138/18,137/18,132/18,136/18,131/18,133/18,134/18,135/18 and 139/2018 whereby the court below has acquitted the accused/respondents of the offence under Sections 294 IPC as awarded by the Judicial Magistrate First class, Bilaspur and sentencing them with fine of Rs. 500/- with default stipulation. 2. Brief facts of the case are that complainant (applicant herein) filed FIR against the respondents in the aforesaid revision petitions on 08.02.2012 on the ground that on the said date at about 2.30 p.m. all the respondents have entered his room at D.P.Vipra College, Bilaspur and abused him, threatened and tried to interfere in his work. Applicant filed report against all the respondents at Police Station City Kotwali who registered offence under Sections 147,294 and 506 IPC and after investigation, charge sheet was filed against the accused persons (respondents herein) in all the petitions and charges were framed. 3. Prosecution has examined 4 witnesses in support of its case. Statements of the respondents were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded false implication in the case. 4. After hearing the parties, the trial Court, vide its judgment dated 22.06.2018 has acquitted the accused/respondents of the offence punishable under Sections 147,506 IPC and convicted them under Section 294 IPC and sentenced with fine of Rs. 500/- with default stipulation. This order was appealed by the respondents and in the appeal, learned appellate court acquitted them under Section 294 IPC. Hence, the present revisions by the applicant, assailing the acquittal. 5. Counsel appearing for the applicant submits that the judgment and order passed by the appellate court is perverse and not sustainable in law. He submits that these are the cases where the educational institution has been rampaged by its constituents i.e. Professors and when the culprits are the persons imparting education, the matter should be looked into with all seriousness and in the present case, adoption of such serious approach is absent and therefore invocation of appropriate jurisdiction by this Court is called for.
He submits that all the witnesses have stated about hurling of abusive language at public place and therefore charges under Section 294 IPC has been made out and the acquittal of respondents from the said charge by the appellate court is bad in the eye of law. The prosecution has proved all the ingredients of the offence under Section 294 IPC. Merely the words actually uttered have not been used while deposing being the person concerned who are also the persons imparting education, it cannot be said that abusive language has not been used in public place as has been held by the courts below while acquitting the respondents. The acquittal of the respondents amounts to denial of justice to the victims and therefore the judgment is liable to be set aside. 6. On the other hand, counsels appearng onbehalf of the respondents in all the revisions objected on the ground that the applicant is a victim and have stated that the revision against acquittal order filed by the victim is not maintainable. Reliance has been placed in the matter of Roopendra Singh Vs. State of Tripura and Others, (2017) 13 SCC 612 and Mallikarjun Kodagali (dead) Represented through Legal Representatives Vs. State of Karnataka and Others, (2019) 2 SCC 752 . 7. Counsel for the applicant submits that the High Court has power to set aside the order of acquittal. Reliance has been placed in the matter of Ganesha Vs Sharanappa And Another, (2014) 1 SCC 87 ; The Queen Vs. Saunders and Hitchcock (Queens Bench Division) Vol. 1 15, Nov. 13,1875 ; Hasimuddin Mondal Vs. Golam Mahabub & Others, (1988) 1 CalHN 216 (1987) SCC Online Cal. 234: 1988 CriLJ 1900 , Criminal Revision No. 1678 of 1981; Gopal Chandra Sahu & Gopal Sahu Vs. Choudhury Behera and Others, (1989) CriLJ 1616 1988 SCC Online Ori. 130:(1988) 66 CLT (SN55) 37 in Criminal Revision No. 60 of 1988 and in the matter of National Human Rights Commission Vs. State of Gujarat & Others reported in W.P. (Cri.) No. 109 of 2003 (SCC Online). 8. Heard counsel for the parties and perused the material available on record. 9.
130:(1988) 66 CLT (SN55) 37 in Criminal Revision No. 60 of 1988 and in the matter of National Human Rights Commission Vs. State of Gujarat & Others reported in W.P. (Cri.) No. 109 of 2003 (SCC Online). 8. Heard counsel for the parties and perused the material available on record. 9. It is clear from the records of both the courts below that the learned trial court convicted the respondents under Section 294 IPC against which the respondents filed appeal before the Sessions Court and learned Additional Sessions Judge acquitted them of the charges under Section 294 IPC. Section 372 Cr.P.C reads as follows: "No appeal to lie unless otherwise provided :No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force. 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." 10. Section 397 of the Code empowers the High Court to call for records of the case to exercise its power of revision in order to satisfy itself as regards correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior court. Section 397 in The Code Of Criminal Procedure,1973 reads thus: 397. Calling for records to exercise powers of revision. (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, - recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
Explanation.- All Magistrates whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub- section and of section 398. (2) The powers of revision conferred by sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. And Section 401 in The Code Of Criminal Procedure,1973 reads thus, 401. High Court' s Powers of revisions. (1) In the case of any proceeding the record of which has been called for by itself or Which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386,389,390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392. (2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Nothing in this section shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction. (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. (5) Where under this Code tan 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. 11. The Apex Court in the matter of Roopendra singh Vs. State of Tripura and Another, (2017) 13 SCC 612 , has held thus : 10.
11. The Apex Court in the matter of Roopendra singh Vs. State of Tripura and Another, (2017) 13 SCC 612 , has held thus : 10. section 372 Cr.P.C. has conferred upon a victim a substantive and independent right to maintain an appeal against acquittal. The widow of the deceased in the present matter comes within the definition of "victim" as incorporated in Section 2 (wa). Merely because leave to appeal was not granted to the State to prefer an appeal against acquittal, the appeal preferred by the victim informant ought not to have been rejected by the High Court summarily. We, therefore, set aside the order dated 28.06.2012 (Vacchalabai Mahadeo Artam Vs. State of Maharastra,2012 SCCOnlineBom 2124 ) passed by the High Court rejecting Criminal appeal preferred by the appellant and remit the matter to the High Court for fresh consideration. It will be open to the High Court to consider the matter for grant of leave to appeal to the appellant in the light of paras 17 and 18 of the decision of this Court in Satya Pal Singh Vs. State of MP, (2015) 15 SCC 613 :(2016) 3 SCC (Cri.) 307 . 12. In a recent judgment of the Apex Court in the matter of Mallikarjun Kodagali (dead) represented through Legal Representatives Vs. State of Karnataka and Others, (2019) 2 SCC 752 , it has been held thus: 74. Putting the Declaration to practice, it is quite obvious that the victim of an offence is entitled to a variety of rights. Access to mechanisms of justice and redress through formal procedures as provided for in national legislation, must include the right to file an appeal against an order of acquittal in a case such as the one that we are presently concerned with. Considered in this light, there is no doubt that the proviso to Section 372 of the Cr.P.C. must be given life, to benefit the victim of an offence. 75. Under the circumstances, on the basis of the plain language of the law and also as interpreted by several High Courts and in addition the resolution of the General Assembly of the United Nations, it is quite clear to us that a victim as defined in Section 2(wa) of the Cr.P.C. would be entitled to file an appeal before the Court to which an appeal ordinarily lies against the order of conviction.
It must follow from this that the appeal filed by Kodagali before the High Court was maintainable and ought to have been considered on its own merits. 76. As far as the question of the grant of special leave is concerned, once again, we need not be overwhelmed by submissions made at the Bar. The language of the proviso to Section 372 of the Cr.P.C. is quite clear, particularly when it is contrasted with the language of Section 378(4) of the Cr.P.C. The text of this provision is quite clear and it is confined to an order of acquittal passed in a case instituted upon a complaint. The word 'complaint' has been defined in Section 2(d) of the Cr.P.C. and refers to any allegation made orally or in writing to a Magistrate. This has nothing to do with the lodging or the registration of an FIR, and therefore it is not at all necessary to consider the effect of a victim being the complainant as far as the proviso to Section 372 of the Cr.P.C. is concerned. 13. In the light of above judgment, it is clear that the revision petitions filed by the complainant are not maintainable against the order of acquittal. The revision petitions are accordingly dismissed. However, complainant is vested liberty to file special leave to appeal along with an appeal against the judgment of acquittal passed by the appellate court, if he so desires.