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TMI Blog2022 (1) TMI 1423X X X X Extracts X X X X X X X X Extracts X X X X ..... ror of law or procedure etc., however, after giving its own findings on the findings recorded by the court acquitting the Accused and after setting aside the order of acquittal, the High Court has to remit the matter to the trial Court and/or the first appellate Court, as the case may be - in the present case, the High Court has erred in quashing and setting aside the order of acquittal and reversing and/or converting a finding of acquittal into one of conviction and consequently convicted the Accused, while exercising the powers Under Section 401 Code of Criminal Procedure. The order of conviction by the High Court, while exercising the revisional jurisdiction Under Section 401 Code of Criminal Procedure, is therefore unsustainable, beyond the scope and ambit of Section 401 Code of Criminal Procedure, more particularly Sub-section (3) of Section 401 Code of Criminal Procedure. In a case where the victim has a right of appeal against the order of acquittal, now as provided Under Section 372 Code of Criminal Procedure 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 part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose 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. While exercising the powers Under Sub-section (5) to Section 401 Code of Criminal Procedure to treat the revision application as a petition of appeal, the High Court is required to pass a judicial order. However, considering the fact that even otherwise being victims they are having the statutory right of appeal as per proviso to Section 372 Code of Criminal Procedure, we deem it fit and proper to remit the matter to the High Court to treat the revision applications as petition of appeals Under Section 372 Code of Criminal Procedure and to decide the same in accordance with law and on their own merits. The same would be in the interests of all, namely, the victims as well as the Accused, as the appellate Court would have a wider scope and jurisdiction as an appellate Court, rather than the revisional court. The impugned common judgment and order passed by the High Court reversing the acquittal and convicting the Accused is hereby quashed and set aside. The matters are remitted to the High Court. The High Court is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e victims-private Respondents herein preferred criminal revision application Nos. 323 to 326 of 2013 before the High Court Under Section 397 r/w 401 Code of Criminal Procedure. By the impugned judgment and order, while exercising the revisional jurisdiction Under Section 401 Code of Criminal Procedure, the High Court has set aside the judgment and order passed by the first appellate Court allowing Criminal Appeal No. 92/2012 and acquitting the Accused, and consequently has convicted the Accused for the offences other than the offences Under Sections 307 506(ii) Indian Penal Code and has restored the judgment and order of conviction and sentence passed by the trial Court. The High Court has however modified the sentences imposed by the trial Court. 2.4. Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the High Court reversing the acquittal and thereupon convicting the Accused, while exercising the revisional jurisdiction Under Section 401 Code of Criminal Procedure, original Accused Nos. 6 to 8 have preferred the present appeals. 3. Shri S. Nagamuthu, learned Senior Advocate appearing on behalf of the Accused has vehemently submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld by this Court, even in a case where the victim prefers an appeal against acquittal, he has an absolute right of appeal and therefore he is not required to even seek leave to appeal as required in case of complainant while preferring the appeal Under Section 378(4) Code of Criminal Procedure. 3.4. Shri S. Nagamuthu, learned Senior Advocate appearing on behalf of the Accused has further submitted that assuming that the High Court in exercise of powers Under Sub-section (5) of Section 401 Code of Criminal Procedure may treat the application for revision as a petition of appeal and deal with the same accordingly, the High Court has to pass a judicial order to treat the application for revision as a petition of appeal. It is submitted that in the present case, no such judicial order has been passed by the High Court and the High Court has exercised the jurisdiction Under Section 401 Code of Criminal Procedure and has reversed the acquittal and has convicted the Accused which, as such, is not permissible and it is beyond the scope and ambit of exercise of revisional jurisdiction Under Section 401 Code of Criminal Procedure. 3.5. Shri S. Nagamuthu, learned Senior Advocate appearing on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions as appeals as per Sub-section (5) of Section 401 Code of Criminal Procedure. It is submitted that firstly the High Court has to pass a judicial order to treat the revisional applications as petitions of appeals and thereafter the High Court is required to give an opportunity to the Accused as if the High Court is deciding the appeal against the order of acquittal. It is submitted that the scope and ambit of revisional jurisdiction and appellate jurisdiction is distinct and separate. It is submitted that while considering the revision application, the revisional court would have a limited scope, however, while deciding the appeal, the appellate Court has a wide jurisdiction than that of the revisional jurisdiction. 7. We have heard the learned Counsel appearing on behalf of the respective parties at length. Having heard the learned Counsel for the respective parties, the following questions arise for the consideration of this Court: i) Whether the High Court in exercise of the revisional jurisdiction Under Section 401 Code of Criminal Procedure is justified in setting aside the order of acquittal and convicting the Accused by converting the finding of acquittal into one of con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be another type of case, namely, where the trial court has convicted the Accused while the appeal court has acquitted him. In such a case if the conclusion of the High Court is that the order of the appeal court must be set aside, the question is whether the appeal court should be ordered to rehear the appeal after admitting the statement it had ruled out or whether there should necessarily be a retrial. So far as this is concerned, we are of opinion that it is open to the High Court to take either of the two courses. It may order a retrial or it may order the appeal court to rehear the appeal. 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. Where, as in this case, the entire evidence is there and it was the appeal court which ruled out the evidence that had been admitted by the trial court, the proper course in our opinion is to send back the appeal for rehearing to the appeal court. In such a case the order of the trial court would stand subject to the decision of the appeal court on rehearing. In the present case it is not disputed that the entire evidence has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of evidence or non-consideration of evidence or perverse appreciation of evidence, nothing prevents the High Court from setting aside the order of acquittal at the instance of the informant in revision and directing fresh disposal on merit by the trial court. In the event of such direction, the trial court shall be obliged to reappraise the evidence in light of the observation of the Revisional Court and take an independent view uninfluenced by any of the observations of the Revisional Court on the merit of the case. By way of abundant caution, we may herein observe that interference with the order of acquittal in revision is called for only in cases where there is manifest error of law or procedure and in those exceptional cases in which it is found that the order of acquittal suffers from glaring illegality, resulting into miscarriage of justice. The High Court may also interfere in those cases of acquittal caused by shutting out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue has been overlooked. In such an exceptional case, the High Court in revision can set aside an order of acquittal but it cannot convert an o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the findings recorded by the court acquitting the Accused and after setting aside the order of acquittal, the High Court has to remit the matter to the trial Court and/or the first appellate Court, as the case may be. As observed by this Court in the case of K. Chinnaswamy Reddy (supra), 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. However, if the order of acquittal is passed by the first appellate court, in that case, the High Court has two options available, (i) to remit the matter to the first appellate Court to rehear the appeal; or (ii) in an appropriate case remit the matter to the trial Court for retrial and in such a situation the procedure as mentioned in paragraph 11 of the decision in K. Chinnaswamy Reddy (supra), referred to hereinabove, can be followed. Therefore, in the present case, the High Court has erred in quashing and setting aside the order of acquittal and reversing and/or converting a finding of acquittal into one of conviction and consequently convicted the Accused, while exercising the powers Under Section 401 Code of Criminal Procedure. The order of conviction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here an order of acquittal is passed in any case instituted upon complaint. The right provided to the victim to prefer an appeal against the order of acquittal is an absolute right. Therefore, so far as issue No. 2 is concerned, namely, in a case where the victim and/or the complainant, as the case may be, has not preferred and/or availed the remedy of appeal against the order of acquittal as provided Under Section 372 Code of Criminal Procedure or Section 378(4), as the case may be, the revision application against the order of acquittal at the instance of the victim or the complainant, as the case may be, shall not be entertained and the victim or the complainant, as the case may be, shall be relegated to prefer the appeal as provided Under Section 372 or Section 378(4), as the case may be. Issue No. 2 is therefore answered accordingly. 11. Now so far as the power to be exercised by the High Court Under Sub-section (5) of Section 401, Code of Criminal Procedure, 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 revisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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