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2023 DIGILAW 502 (UTT)

Premanand Bijalwan v. Dhanesh Bijalwan

2023-09-01

RAVINDRA MAITHANI

body2023
JUDGMENT : (Ravindra Maithani, J.) : The instant revision has been preferred against the judgment and order dated 18.12.2010 passed in Criminal Case No.3126 of 2007, State vs. Dhanesh Bijalwan, by the Court of Chief Judicial Magistrate, Haridwar (“the case”). By the impugned judgment and order, the private respondent has been acquitted of the charge under Sections 323, 504 of IPC. 2. Heard learned counsel for the parties and perused the record. 3. The instant revision was admitted on 13.05.2011. During the course of hearing on 15.07.2022, a question of law was raised on behalf of the respondent that the revision may not be converted as an appeal in view of Section 401(5) of the Code of Criminal Procedure, 1973 (“the Code”). It was then argued that there is no Leave to Appeal. This Court had requested Mr. Harshit Sanwal, Advocate to assist the Court in this matter on 15.07.2022 as an Amicus Curiae. He had agreed to it. 4. Today, Mr. Sanwal, Advocate would submit that the case arises from an FIR lodged by the revisionist on 29.06.2001 under Sections 323, 504 and 506 IPC at Kotwali Dehradun, in which, after investigation, the charge-sheet was submitted and proceeding of the case was instituted. He would submit that against order of acquittal in such cases, the revisionist as a victim can file an appeal in view of the proviso of Section 372 read with Section 374 (3) of the Code. He would also submit that in view of the provisions as contained under Section 401(5) of the Code, a revision may, though be converted as an appeal, but again he apprehends that the appeal is not maintainable in this Court against the judgment of acquittal recorded by the Court of Magistrate. 5. Learned counsel for the private respondent supports the contention as made by the learned Amicus Curiae. 6. Learned State Counsel would submit that the revision is not maintainable in this Court. 7. It is a pure question of law which may be decided in the instant revision. Section 372 of the Code makes provision with regard to appeal, which reads hereunder:- “372. 6. Learned State Counsel would submit that the revision is not maintainable in this Court. 7. It is a pure question of law which may be decided in the instant revision. Section 372 of the Code makes provision with regard to appeal, which reads hereunder:- “372. 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.” 8. A bare reading of the proviso to Section 372 of the Code makes it abundantly clear that an order of acquittal recorded by a Court of Magistrate may be challenged in appeal by the victim, in a court, where an appeal against conviction may be preferred. 9. Section 374 of the Code makes provision with regard to appeal against conviction. It reads as hereunder:- “374. Appeals from convictions- (1) Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court. (2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years has been passed against him or against any other person convicted at the same trial, may appeal to the High Court. (3) Save as otherwise provided in sub-section (2), any person,- (a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class, or of the second class, or (b) sentenced under section 325, or (c) in respect of whom an order has been made or a sentence has been passed under section 360 by any Magistrate, may appeal to the Court of Session.” 10. A conjoint reading of proviso to Section 372 and Section 374 (3) of the Code makes it clear that a victim may file an appeal against the order of acquittal recorded by a Court of Magistrate. A conjoint reading of proviso to Section 372 and Section 374 (3) of the Code makes it clear that a victim may file an appeal against the order of acquittal recorded by a Court of Magistrate. Such appeal may be preferred in a Court of Sessions. 11. Section 401 (5) of the Code enables the Court to convert a revision into an appeal. This provision is as hereunder:- “(5) 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.” 12. What is required is that the court has to pass an order to that effect. In the case of Joseph Stephen and Others vs. Santhanasamy and Others reported in 2022 SCC OnLine SC 90, the Hon’ble Supreme Court in para 24 observed as hereunder on this aspect:- “24. Now so far as the power to be exercised by the High Court under sub-section (5) of Section 401, Cr.P.C., namely, the High Court may treat the application for revision as petition of appeal and deal with the same accordingly is concerned, firstly the High Court has to pass a judicial order to treat the application for revision as petition of appeal. The High Court has to pass a judicial order because sub-section (5) of Section 401 Cr.P.C. provides that if the High Court is satisfied that such revision 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 has to pass a judicial order because sub-section (5) of Section 401 Cr.P.C. provides that if the High Court is satisfied that such revision 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. While treating with the application for revision as petition of appeal and deal with the same accordingly, the High Court has to record the satisfaction as provided under sub-section (5) of Section 401 Cr.P.C. Therefore, where under the Cr.P.C. an appeal lies, but an application for revision has been made to the High Court by any person, the High Court has jurisdiction to treat the application for revision as a petition of appeal and deal with the same accordingly as per sub-section (5) of Section 401 Cr.P.C., however, subject to the High Court being satisfied that such an 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 and for that purpose the High Court has to pass a judicial order, may be a formal order, to treat the application for revision as a petition of appeal and deal with the same accordingly.” 13. In the instant case, the judgment of acquittal was recorded on 18.12.2010. It is post amendment made under Section 372 of the Code, by which the proviso has been added enabling a victim to prefer an appeal against the judgment of acquittal recorded by a Magistrate. Therefore, in the instant case, the victim i.e. the revisionist could have preferred an appeal in the Court of Session. Since appeal against the impugned judgment is not maintainable in the Court, this Court may not exercise the jurisdiction under Section 401 (5) of the Code to convert the instant revision as an appeal. The appeal may not be directly entertained by this Court. 14. Since there is a provision of statutory appeal, a revision may also not be entertained. In view of this, this Court is of the view that the revision is not maintainable. Accordingly, it is liable to be dismissed. 15. The criminal revision is dismissed.