TaxTMI 
TaxTMI 
2022 (1) TMI 1423
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....dian Penal Code. That the Chief Judicial Magistrate, Tiruchirapalli, by judgment dated 28.09.2012, convicted the Accused under the aforesaid offences except Sections 307 and 506(ii) Indian Penal Code and thereby acquitted the Accused Under Sections 307 and 506(ii) Indian Penal Code. 2.1. Feeling aggrieved and dissatisfied with the judgment and order of conviction passed by the Chief Judicial Magistrate, Tiruchirapalli, the Accused preferred Criminal Appeal No. 92/2012 in the Court of III Additional Sessions Judge, Tiruchirapalli (hereinafter referred to as the 'first appellate Court'). Challenging the acquittal of the Accused Under Sections 307 and 506(ii) Indian Penal Code, the victims (private Respondents herein) filed Criminal Appeal Nos. 108 to 110 of 2012. 2.2. The first appellate Court, vide judgment dated 18.01.2013, allowed the appeal preferred by the Accused and acquitted the Accused. The criminal appeals filed by the victims against acquittal of the Accused Under Sections 307 and 506(ii) Indian Penal Code came to be dismissed. 2.3. Feeling aggrieved and dissatisfied with the common judgment and order passed by the first appellate Court allowing criminal appeal ....
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....half of the Accused has further submitted that after the amendment in Section 372 Code of Criminal Procedure, by which proviso to Section 372 Code of Criminal Procedure came to be inserted by Act 5 of 2009, w.e.f. 31.12.2009, 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 as per the said proviso, such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. It is submitted that therefore once the victim has a statutory right of appeal against the order of acquittal Under Section 372, Code of Criminal Procedure, the revision application before the High Court shall not be entertained against the judgment and order of acquittal. Reliance is placed on Sub-section 4 of Section 401 Code of Criminal Procedure. 3.3. Shri S. Nagamuthu, learned Senior Advocate appearing on behalf of the Accused has also relied upon the decision of this Court in the case of Mallikarjun Kodagali v. State of Karnataka, (2019) 2 SCC 752, by which the right of the victim to prefer an appeal against the order of acquittal ....
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....al Procedure. 4.1. It is further submitted that even otherwise the victims in the present case were having a right of appeal to the High Court against the order of acquittal as provided Under Section 372 Code of Criminal Procedure. It is therefore submitted that even otherwise the victims could have preferred the appeal before the High Court against the order of acquittal. It is submitted that merely because mistakenly and/or inadvertently the victims preferred revision applications, their right to appeal conferred Under Section 372 Code of Criminal Procedure could not have been taken away. Therefore, it is submitted that either the revision applications preferred by the victims may be treated as petitions of appeals in exercise of powers Under Sub-section (5) of Section 401 Code of Criminal Procedure or the matter may be remanded to the High Court to convert the revision applications into appeals and to treat them as appeals Under Section 372 Code of Criminal Procedure. 5. Though served, no body appears on behalf of the private Respondents-victims. 6. In rejoinder, Shri S. Nagamuthu, learned Senior Advocate appearing on behalf of the Accused has opposed the prayer made on behal....
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.... namely, Section 439(4) Code of Criminal Procedure, it is observed and held that "though Sub-section (1) of Section 439 of the Code of Criminal Procedure authorised the High Court to exercise in its discretion any of the powers conferred on a Court of Appeal by Section 423, yet Sub-section (4) specifically excludes the power to convert a finding of acquittal into one of conviction". It is observed that "at that stage the revisional court stops short of finding the Accused guilty and passing sentence on him by ordering a retrial". What order should be passed by the High Court in a revision application against the order of acquittal, while exercising the revisional jurisdiction, has been dealt with and considered in paragraph 11, which reads as under: 11. The next question is what order should be passed in a case like the present. The High Court also considered this aspect of the matter. Two contingencies arise in such a case. In the first place there may be an acquittal by the trial court. In such a case if the High Court is justified, on principles we have enunciated above, to interfere with the order of acquittal in revision, the only course open to it is to set aside the acquit....
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....cising the powers of the revisional Court can set aside an order of acquittal and remit the case for retrial where material evidence is overlooked by the trial Court. c) Again, in the case of Sheetala Prasad (supra), it is reiterated that Section 401(3) Code of Criminal Procedure prohibits conversion of a finding of acquittal into one of conviction and in such cases retrial or rehearing of the appeal might be ordered. d) In the case of Ganesha (supra), it is observed in paragraphs 10 to 12 as under: 10. Section 386(a) thus authorises the appellate court to reverse an order of acquittal, find the Accused guilty and pass sentence on the person found guilty. However, Sub-section (3) of Section 401 of the Code contemplates that the power of revision does not authorise a High Court to convert a finding of acquittal into one of conviction. On the face of it, the High Court while exercising the powers of revision can exercise all those powers which have been conferred on the court of appeal Under Section 386 of the Code but, in view of Sub-section (3) of Section 401 of the Code, while exercising such power, cannot convert a finding of acquittal into one of conviction. 11. However,....
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....fere in revision with an order of acquittal except in exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice. The High Court will not be justified in interfering with an order of acquittal merely because the trial court has taken a wrong view of the law or has erred in appreciation of evidence. It is neither possible nor advisable to make an exhaustive list of circumstances in which exercise of revisional jurisdiction may be justified, but decisions of this Court have laid down the parameters of exercise of revisional jurisdiction by the High Court Under Section 401 of the Code of Criminal Procedure in an appeal against acquittal by a private party. 9. Applying the law laid down by this Court in the aforesaid decisions and on a plain reading of Sub-section (3) of Section 401 Code of Criminal Procedure, it has to be held that Sub-section (3) of Section 401 Code of Criminal Procedure prohibits/bars the High Court to convert a finding of acquittal into one of conviction. Though and as observed hereinabove, the High Court has revisional power to examine whether there is ....
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.... acquittal. Therefore, no revision shall be entertained at the instance of the victim against the order of acquittal in a case where no appeal is preferred and the victim is to be relegated to file an appeal. Even the same would be in the interest of the victim himself/herself as while exercising the revisional jurisdiction, the scope would be very limited, however, while exercising the appellate jurisdiction, the appellate Court would have a wider jurisdiction than the revisional jurisdiction. Similarly, in a case where an order of acquittal is passed in any case instituted upon complaint, the complainant (other than victim) can prefer an appeal against the order of acquittal as provided Under Sub-section (4) of Section 378 Code of Criminal Procedure, subject to the grant of special leave to appeal by the High Court. 10.2. As observed by this Court in the case of Mallikarjun Kodagali (supra), so far as the victim is concerned, the victim has not to pray for grant of special leave to appeal, as the victim has a statutory right of appeal Under Section 372 proviso and the proviso to Section 372 does not stipulate any condition of obtaining special leave to appeal like Sub-section (4....