About the Author
Praveena. C is working as Research Assistant at High Court of Kerala. She’s an LLM graduate from Govt Law College, Thrissur, where she also did her BBA LLB.
Facts
1.Joseph Stephen & Others – charged and tried for the offences – punishable u/s 147, 148, 324, 326, 307, 506(ii) r/w/s 149 IPC.
2.The CJM convicted them under the said offences; except Sections 307 and 506(ii) IPC and thereby acquitted the accused.
3.On appeal the Additional Sessions Judge acquitted the accused and dismissed the criminal appeals filed against acquittal of the accused u/s 307 and 506(ii) IPC.
4.On criminal revision application, the High Court while exercising the revisional jurisdiction u/s 401 CrPC, set aside the order acquitting the accused, and consequently convicted the accused for the offences other than the offences u/s 307 & 506(ii) IPC and restored the order of conviction and sentence passed by the trial Court.
5. The High Court however modified the sentences imposed by the trial Court.
Hence, present appeal.
Analysing the Issues
1.Whether the High Court in exercise of the revisional jurisdiction under Section 401 Cr.P.C. can set aside the order of acquittal and convicting the accused by converting the finding of acquittal into one of conviction?
The Court held that sub-section (3) of Section 401 Cr.P.C. prohibits/bars the High Court to convert a finding of acquittal into one of conviction.
But there is an exception in case of power to be excercised by the appellate court under S.386 Crpc
b. in an appeal from a conviction-
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re- tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or
Though the revisional power extend to examine whether there is manifest error of law or procedure etc after recording its own findings on acquittal the High Court has to remit the matter to the trial Court and/or the first appellate Court, as the case may be.
The course to be adopted in case of such situations has been refferred to in K. Chinnaswamy Reddy v. State of Andhra Pradesh, AIR 1962 SC 1788, it was held that:
(i) if the order of acquittal has been passed by the trial Court, the High Court may remit the matter to the trial Court and even direct retrial.
(ii) if the order of acquittal is passed by the first appellate court, in that case, the High Court has two options available:
(a) to remit the matter to the first appellate Court to rehear the appeal; or
(b) in an appropriate case remit the matter to the trial Court for retrial.
It will depend upon the facts of each case whether the High Court would order the appeal court to rehear the appeal or would order a retrial by the trial court. In the circumstances we are of opinion that the proper course is to direct the appeal court to rehear the appeal and either maintain the conviction after taking into consideration the evidence which was ruled out by it previously or to acquit the accused if that is the just course to take. The appellate court when it rehears the appeal should not be influenced by any observations of the High Court.
2. In a case where the victim has a right of appeal against the order of acquittal, now as provided under Section 372 Cr.P.C and the victim has not availed such a remedy and has not preferred the appeal, whether the revision application is required to be entertained at the instance of a party/victim instead of preferring an appeal?
Remedy for the order of acquittal:
After the amendment in Section 372 Cr.P.C. after 2009 and insertion of proviso to Section 372 Cr.P.C., a victim has a statutory right of appeal against the order of acquittal.
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 Cr.P.C., subject to the grant of special leave to appeal by the High Court.
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. 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.
Here reference can be made to Mallikarjun Kodagali v. State of Karnataka, (2019) 2 SCC 752, so far as the victim is concerned, in this case 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.
3. While exercising the powers under sub-section (5) of Section 401 Cr.P.C. treating the revision application as petition of appeal and deal with the same accordingly, the High Court is required to pass a judicial order?
The High Court can treat the application for revision as petition of appeal and deal with the same accordingly. For that the High Court has to pass a judicial order to treat the application for revision as petition of appeal because of sub-section (5) of Section 401 Cr.P.C. which 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 and also to record the satisfaction as provided under sub-section (5) of Section 401 Cr.P.C.
