JOSEPH STEPHEN AND OTHERS versus SANTHANASAMY AND OTHERS

[2022] 8 S.C.R.

AJOSEPH STEPHEN AND OTHERS

SANTHANASAMY AND OTHERS

(Criminal Appeal Nos. 90-93 of 2022)

JANUARY 25, 2022

[M. R. SHAH AND SANJIV KHANNA, JJ.]

Code of Criminal Procedure, 1973: s.401 – Whether inexercise of revisional jurisdiction under s.401, High Court canCconvert finding of acquittal into one of conviction and what is theprocedure to be followed by the High Court – Held: sub-section (3)of s.401 prohibits/bars the High Court to convert finding ofacquittal into one of conviction – Though the High Court hasrevisional power to examine whether there is manifest error of lawor procedure etc., however, after giving its own findings, on theDfindings recorded by the court acquitting the accused and aftersetting aside the order of acquittal, the High Court has to remit thematter to the trial Court and/or the first appellate Court, as thecase may be.

Code of Criminal Procedure, 1973: s.401 – In case whereEno appeal is brought though appeal lies under the Code, whetherrevision application still is to be entertained at the instance of theparty who could have appealed – Held: In case where the victimand/or the complainant, as the case may be, has not preferred and/or availed the remedy of appeal against the order of acquittal asFprovided under s.372 or s.378(4), as the case may be, the revisionapplication against the order of acquittal at the instance of thevictim or the complainant, as the case may be, shall not be entertainedand the victim or the complainant, as the case may be, shall berelegated to prefer the appeal as provided under s.372 or s.378(4),as the case may be.G

Code of Criminal Procedure, 1973: s.401(5) – Power of HighCourt under sub-section (5) of s.401 to treat the application forrevision as petition of appeal – Held: Where under the Cr.P.C. anappeal lies, but an application for revision has been made to HighCourt by any person, High Court has jurisdiction to treat theH

application for revision as petition of appeal and deal with thesame accordingly as per sub-section (5) of s.401, however, subjectto the High Court being satisfied that such an application was madeunder the erroneous belief that no appeal lies thereto and that it isnecessary in the interest of justice so to do and for that purpose theHigh Court has to pass judicial order, may be formal order, totreat the application for revision as petition of appeal and dealwith the same accordingly.

Allowing the appeals and remitting the matter to High Court,the Court

HELD: 1. On plain reading of sub-section (3) of Section401 Cr.P.C., it has to be held that sub-section (3) of Section 401Cr.P.C. prohibits/bars the High Court to convert finding ofacquittal into one of conviction. Though the High Court hasrevisional power to examine whether there is manifest error oflaw or procedure etc., however, after giving its own findings onthe findings recorded by the court acquitting the accused andafter setting aside the order of acquittal, the High Court has toremit the matter to the trial Court and/or the first appellate Court,as the case may be. If the order of acquittal has been passed bythe trial Court, the High Court may remit the matter to the trialCourt and even direct retrial. However, if the order of acquittalis passed by the first appellate court, in that case, the High Courthas two options available, (i) to remit the matter to the firstappellate Court to rehear the appeal; or (ii) in an appropriatecase remit the matter to the trial Court for retrial and in such asituation the procedure as mentioned in paragraph 11 of thedecision in K. Chinnaswamy Reddy can be followed. Therefore,in the present case, the High Court has erred in quashing andsetting aside the order of acquittal and reversing and/orconverting finding of acquittal into one of conviction andconsequently convicted the accused, while exercising the powersunder Section 401 Cr.P.C. The order of conviction by the HighCourt, while exercising the revisional jurisdiction under Section401 Cr.P.C., is therefore unsustainable, beyond the scope andambit of Section 401 Cr.P.C., more particularly sub-section (3) ofSection 401 Cr.P.C. [Para 9][194-F-H; 195-A-C]

A2.1 It cannot be disputed that now after the amendment inSection 372 Cr.P.C. after 2009 and insertion of proviso to Section372 Cr.P.C., victim has statutory right of appeal against theorder of acquittal. Therefore, no revision shall be entertained atthe instance of the victim against the order of acquittal in casewhere no appeal is preferred and the victim is to be relegated toBfile an appeal. Even the same would be in the interest of thevictim himself/herself as while exercising the revisionaljurisdiction, the scope would be very limited, however, whileexercising the appellate jurisdiction, the appellate Court wouldhave wider jurisdiction than the revisional jurisdiction. Similarly,Cin case where an order of acquittal is passed in any caseinstituted upon complaint, the complainant (other than victim)can prefer an appeal against the order of acquittal as providedunder sub-section (4) of Section 378 Cr.P.C., subject to the grantof special leave to appeal by the High Court. [Para 10.1][195-E-

2.2 In case where the victim and/or the complainant, asthe case may be, has not preferred and/or availed the remedy ofappeal against the order of acquittal as provided under Section372 Cr.P.C. or Section 378(4), as the case may be, the revisionapplication against the order of acquittal at the instance of theEvictim or the complainant, as the case may be, shall not beentertained and the victim or the complainant, as the case maybe, shall be relegated to prefer the appeal as provided underSection 372 or Section 378(4), as the case may be. [Para10.2][196-B-C]F

3.1 Now so far as the power to be exercised by the HighCourt under sub-section (5) of Section 401, Cr.P.C., namely, theHigh Court may treat the application for revision as petition ofappeal and deal with the same accordingly is concerned, firstlythe High Court has to pass judicial order to treat the applicationGfor revision as petition of appeal. The High Court has to pass ajudicial order because sub-section (5) of Section 401 Cr.P.C.provides that if the High Court is satisfied that such revisionapplication was made under the erroneous belief that no appeallies thereto and that it is necessary in the interests of justice soto do. While treating with the application for revision as petitionHof appeal and deal with the same accordingly, the High Court hasto record the satisfaction as provided under sub-section (5) ofSection 401 Cr.P.C. Therefore, where under the Cr.P.C. an appeallies, but an application for revision has been made to the HighCourt by any person, the High Court has jurisdiction to treat theapplication for revision as petition of appeal and deal with thesame accordingly as per sub-section (5) of Section 401 Cr.P.C.,however, subject to the High Court being satisfied that such anapplication was made under the erroneous belief that no appeallies thereto and that it is necessary in the interests of justice soto do and for that purpose the High Court has to pass judicialorder, may be formal order, to treat the application for revisionas petition of appeal and deal with the same accordingly. [Para11][196-D-G]

3.2 This Court may either set aside the impugned judgmentand order passed by the High Court setting aside the acquittaland convicting the accused so as to enable the High Court toremit the matter to the first appellate Court to rehear the appealafter considering the findings recorded by it or to remit the matterto the High Court to treat the revision application as petition ofappeal against the order of acquittal, which otherwise ispermissible under sub-section (5) to Section 401 Cr.P.C. As such,while exercising the powers under sub-section (5) to Section 401Cr.P.C. to treat the revision application as petition of appeal,the High Court is required to pass judicial order. However,considering the fact that even otherwise being victims they arehaving the statutory right of appeal as per proviso to Section 372Cr.P.C., it is deemed fit and proper to remit the matter to theHigh Court to treat the revision applications as petition of appealsunder Section 372 Cr.P.C. and to decide the same in accordancewith law and on their own merits. The same would be in theinterests of all, namely, the victims as well as the accused, as theappellate Court would have wider scope and jurisdiction as anappellate Court, rather than the revisional court. [Para 12][196-H]

K. Chinnaswamy Reddy v. State of Andhra Pradesh AIR1962 SC 1788 : [1963] SCR 412; Sheetala Prasad v.Sri Kant (2010) 2 SCC 190 : [2009] 16 SCR 686;

AGanesha v. Sharanappa (2014) 1 SCC 87 : [2013] 12SCR 400; Ram Briksh Singh v. Ambika Yadav (2004) 7SCC 665; Mallikarjun Kodagali v. State of Karnataka(2019) 2 SCC 752 : [2018] 13 SCR 1; D. Stephens v.Nosibolla AIR 1951 SC 196 : [1951] 0 SCR 284 –relied on.B

Case Law Reference

DCRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 90-93 of 2022.

From the Judgment and Order dated 14.05.2020 of the High Courtof Madras at Madurai Bench in Crl. RC (MD) Nos. 323 to 326 of 2013.

S. Nagamuthu, Sr. Adv., M. P. Parthiban, A. S. Vairawan, R.ESudhakaran, Mrs. Shalini Mishra, T. Hari Hara Sudhan, Vikash G. R.,Advs. for the Appellants.

Dr. Joseph Aristotle S., Ms. Preeti Singh, Ms. Nupur Sharma,Sanjeev Kumar Mahara, Advs. for the Respondents.

FThe Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned commonjudgment and order dated 14.05.2020 passed by the High Court ofJudicature at Madras, Madurai Bench in Criminal Revision ApplicationGNos. 323 to 326 of 2013, by which the High Court, in exercise of itsrevisional jurisdiction under Section 401 Cr.P.C., has set aside the orderof acquittal passed by the first appellate Court and has convicted theaccused, original accused nos. 6 to 8 have preferred the present appeals.

2. The facts leading to the present appeals in nutshell are asHunder:

That all the original accused were charged and tried for theoffences punishable under Sections 147, 148, 324, 326, 307, 506(ii) r/wsection 149 IPC. That the Chief Judicial Magistrate, Tiruchirapalli, byjudgment dated 28.09.2012, convicted the accused under the aforesaidoffences except Sections 307 and 506(ii) IPC and thereby acquitted theaccused under Sections 307 and 506(ii) IPC.

2.1 Feeling aggrieved and dissatisfied with the judgment and orderof conviction passed by the Chief Judicial Magistrate, Tiruchirapalli, theaccused preferred Criminal Appeal No. 92/2012 in the Court of IIIAdditional Sessions Judge, Tiruchirapalli (hereinafter referred to as the‘first appellate Court’). Challenging the acquittal of the accused underSections 307 and 506(ii) IPC, 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 accusedunder Sections 307 and 506(ii) IPC came to be dismissed.

2.3 Feeling aggrieved and dissatisfied with the common judgmentand order passed by the first appellate Court allowing criminal appealNo. 92/2012 preferred by the accused, the victims – private respondentsherein preferred criminal revision application nos. 323 to 326 of 2013before the High Court under Section 397 r/w 401 Cr.P.C. By the impugnedjudgment and order, while exercising the revisional jurisdiction underSection 401 Cr.P.C., the High Court has set aside the judgment andorder passed by the first appellate Court allowing Criminal Appeal No.92/2012 and acquitting the accused, and consequently has convicted theaccused for the offences other than the offences under Sections 307 &506(ii) IPC and has restored the judgment and order of conviction andsentence passed by the trial Court. The High Court has however modifiedthe sentences imposed by the trial Court.

2.4 Feeling aggrieved and dissatisfied with the impugned commonjudgment and order passed by the High Court reversing the acquittaland thereupon convicting the accused, while exercising the revisionaljurisdiction under Section 401 Cr.P.C., original accused nos. 6 to 8 havepreferred the present appeals.

3. Shri S. Nagamuthu, learned Senior Advocate appearing onbehalf of the accused has vehemently submitted that the High Court has

Aerred in reversing the acquittal and convicting the accused, whileexercising the revisional jurisdiction under Section 401 Cr.P.C.

3.1 Shri S. Nagamuthu, learned Senior Advocate appearing onbehalf of the accused has heavily relied upon Section 401(3) Cr.P.C.Relying upon sub-section (3) of Section 401 Cr.P.C., it is vehementlyBsubmitted that while exercising the revisional jurisdiction under Section401 Cr.P.C., the High Court has no jurisdiction at all to convert findingof acquittal into one of conviction. It is submitted that the only courseopen to the High Court would be to give its own finding and thereafterremit the matter either to the trial Court or to the first appellate Court, asthe case may be. Reliance is placed upon the decisions of this Court inCthe cases of K. Chinnaswamy Reddy v. State of Andhra Pradesh,AIR 1962 SC 1788; Sheetal Prasad v. Sri Kant, (2010) 2 SCC 190;Ganesha v. Sharanappa, (2014) 1 SCC 87; and Ram Briksh Singhv. Ambika Yadav, (2004) 7 SCC 665.3.2 Shri S. Nagamuthu, learned Senior Advocate appearing onDbehalf of the accused has further submitted that after the amendment inSection 372 Cr.P.C., by which proviso to Section 372 Cr.P.C. came to beinserted by Act 5 of 2009, w.e.f. 31.12.2009, the victim shall have rightto prefer an appeal against any order passed by the Court acquitting theaccused or convicting for lesser offence or imposing inadequateEcompensation and as per the said proviso, such appeal shall lie to theCourt to which an appeal ordinarily lies against the order of convictionof such Court. It is submitted that therefore once the victim has astatutory right of appeal against the order of acquittal under Section 372,Cr.P.C., the revision application before the High Court shall not beentertained against the judgment and order of acquittal. Reliance is placedFon sub-section 4 of Section 401 Cr.P.C.

3.3 Shri S. Nagamuthu, learned Senior Advocate appearing onbehalf of the accused has also relied upon the decision of this Court inthe case of Mallikarjun Kodagali v. State of Karnataka, (2019) 2SCC 752, by which the right of the victim to prefer an appeal againstGthe order of acquittal has been recognised. It is submitted that as held bythis Court, even in case where the victim prefers an appeal againstacquittal, he has an absolute right of appeal and therefore he is not requiredto even seek leave to appeal as required in case of “complainant” whilepreferring the appeal under Section 378(4) Cr.P.C.H

3.4 Shri S. Nagamuthu, learned Senior Advocate appearing onbehalf of the accused has further submitted that assuming that the HighCourt in exercise of powers under sub-section (5) of Section 401 Cr.P.C.may treat the application for revision as petition of appeal and dealwith the same accordingly, the High Court has to pass judicial order totreat the application for revision as petition of appeal. It is submittedthat in the present case, no such judicial order has been passed by theHigh Court and the High Court has exercised the jurisdiction under Section401 Cr.P.C. and has reversed the acquittal and has convicted the accusedwhich, as such, is not permissible and it is beyond the scope and ambit ofexercise of revisional jurisdiction under Section 401 Cr.P.C.

3.5 Shri S. Nagamuthu, learned Senior Advocate appearing onbehalf of the accused has also tried to make submissions on merits andhas submitted that the first appellate Court gave cogent reasons whileacquitting the accused and recorded the findings in favour of the accusedwhich were not required to be interfered with by the High Court inexercise of the revisional jurisdiction. However, for the reasons statedhereinbelow, we propose to remand the matter to the High Court, we donot propose to consider any of the submissions on merits of the case andto go into whether the High Court on merits is justified in reversing theorder of acquittal and convicting the accused.

4. Shri (Dr.) Joseph Aristotle, learned Advocate appearing on behalfof the respondent-State has, as such, fairly conceded that in exercise ofpowers under Section 401 Cr.P.C., the High Court could not have reversedthe acquittal and/or convert finding of acquittal into one of conviction.However, he has submitted that the High Court could have treated theapplication for revision as petition of appeal and dealt with the sameaccordingly as provided under sub-section (5) of Section 401 Cr.P.C.

4.1 It is further submitted that even otherwise the victims in thepresent case were having right of appeal to the High Court against theorder of acquittal as provided under Section 372 Cr.P.C. It is thereforesubmitted that even otherwise the victims could have preferred the appealbefore the High Court against the order of acquittal. It is submitted thatmerely because mistakenly and/or inadvertently the victims preferredrevision applications, their right to appeal conferred under Section 372Cr.P.C. could not have been taken away. Therefore, it is submitted thateither the revision applications preferred by the victims may be treatedas petitions of appeals in exercise of powers under sub-section (5) of

ASection 401 Cr.P.C. or the matter may be remanded to the High Court toconvert the revision applications into appeals and to treat them as appealsunder Section 372 Cr.P.C.

5. Though served, no body appears on behalf of the privaterespondents – victims.

6. In rejoinder, Shri S. Nagamuthu, learned Senior Advocateappearing on behalf of the accused has opposed the prayer made onbehalf of the respondent-State to treat the revision applications as appealsas per sub-section (5) of Section 401 Cr.P.C. It is submitted that firstlythe High Court has to pass judicial order to treat the revisionalCapplications as petitions of appeals and thereafter the High Court isrequired to give an opportunity to the accused as if the High Court isdeciding the appeal against the order of acquittal. It is submitted that thescope and ambit of revisional jurisdiction and appellate jurisdiction isdistinct and separate. It is submitted that while considering the revisionapplication, the revisional court would have limited scope, however,Dwhile deciding the appeal, the appellate Court has wide jurisdictionthan that of the revisional jurisdiction.

7. We have heard the learned counsel appearing on behalf of therespective parties at length.

EHaving heard the learned counsel for the respective parties, thefollowing questions arise for the consideration of this Court:

i)Whether the High Court in exercise of the revisionaljurisdiction under Section 401 Cr.P.C. is justified in settingaside the order of acquittal and convicting the accused byFconverting the finding of acquittal into one of conviction?;

ii)In case where the victim has right of appeal against theorder of acquittal, now as provided under Section 372 Cr.P.Cand the victim has not availed such remedy and has notpreferred the appeal, whether the revision application isrequired to be entertained at the instance of party/victimGinstead of preferring an appeal?; and

iii)While exercising the powers under sub-section (5) ofSection 401 Cr.P.C. treating the revision application aspetition of appeal and deal with the same accordingly, theHigh Court is required to pass judicial order?H

8. Now so far as the first issue, whether in exercise of therevisional jurisdiction under Section 401 Cr.P.C., the High Court canconvert finding of acquittal into one of conviction and what is theprocedure to be followed by the High Court, as such, the said issue isnow not res integra. On the aforesaid, few decisions of this Court, referredto hereinabove, are required to be considered.

a) In the case of K. Chinnaswamy Reddy (supra), whileconsidering the similar provision under the old Code, namely, Section439(4) Cr.P.C., it is observed and held that “though sub-section(1) of Section 439 of the Criminal Procedure Code authorised theHigh Court to exercise in its discretion any of the powers conferredon Court of Appeal by Section 423, yet sub-section (4) specificallyexcludes the power to convert finding of acquittal into one ofconviction”. It is observed that “at that stage the revisional courtstops short of finding the accused guilty and passing sentence onhim by ordering retrial”. What order should be passed by theHigh Court in revision application against the order of acquittal,while exercising the revisional jurisdiction, has been dealt withand considered in paragraph 11, which reads as under:

“11. The next question is what order should be passed in acase like the present. The High Court also considered thisaspect of the matter. Two contingencies arise in such case.In the first place there may be an acquittal by the trial court. Insuch case if the High Court is justified, on principles we haveenunciated above, to interfere with the order of acquittal inrevision, the only course open to it is to set aside the acquittaland send the case back to the trial court for retrial. But theremay be another type of case, namely, where the trial court hasconvicted the accused while the appeal court has acquittedhim. In such case if the conclusion of the High Court is thatthe order of the appeal court must be set aside, the question iswhether the appeal court should be ordered to rehear the appealafter admitting the statement it had ruled out or whether thereshould necessarily be retrial. So far as this is concerned, weare of opinion that it is open to the High Court to take either ofthe two courses. It may order retrial or it may order theappeal court to rehear the appeal. It will depend upon the factsof each case whether the High Court would order the appeal

court to rehear the appeal or would order retrial by the trialcourt. Where, as in this case, the entire evidence is there andit was the appeal court which ruled out the evidence that hadbeen admitted by the trial court, the proper course in our opinionis to send back the appeal for rehearing to the appeal court. Insuch case the order of the trial court would stand subject tothe decision of the appeal court on rehearing. In the presentcase it is not disputed that the entire evidence has been led andthe only defect is that the appeal court wrongly ruled outevidence which was admitted by the trial court. In thecircumstances we are of opinion that the proper course is todirect the appeal court to rehear the appeal and either maintainthe conviction after taking into consideration the evidence whichwas ruled out by it previously or to acquit the accused if that isthe just course to take. We should like to add that the appealcourt when it rehears the appeal should not be influenced byany observations of the High Court on the appreciation of theevidence and should bring to bear its own mind on the evidenceafter taking into consideration that part of the evidence whichwas considered inadmissible previously by it. We thereforeallow the appeal subject to the modification indicated above.”

b) In the case of Ram Briksh Singh (supra), after consideringEthe decision in the case of K. Chinnaswamy Reddy (supra) andearlier decision in the case of D. Stephens v. Nosibolla, AIR1951 SC 196, it is observed and held that the High Court in arevision application against the order of acquittal and whileexercising the powers of the revisional Court can set aside anForder of acquittal and remit the case for retrial where materialevidence is overlooked by the trial Court.

c) Again, in the case of Sheetala Prasad (supra), it is reiteratedthat Section 401(3) Cr.P.C. prohibits conversion of finding ofacquittal into one of conviction and in such cases retrial or rehearingof the appeal might be ordered.

d) In the case of Ganesha (supra), it is observed in pragraphs 10to 12 as under:

“10. Section 386(a) thus authorises the appellate court toreverse an order of acquittal, find the accused guilty and passsentence on the person found guilty. However, sub-section (3)

of Section 401 of the Code contemplates that the power ofrevision does not authorise High Court to convert findingof acquittal into one of conviction. On the face of it, the HighCourt while exercising the powers of revision can exercise allthose powers which have been conferred on the court of appealunder Section 386 of the Code but, in view of sub-section (3)of Section 401 of the Code, while exercising such power, cannotconvert finding of acquittal into one of conviction.

11. However, in case where the finding of acquittal isrecorded on account of misreading of evidence or non-consideration of evidence or perverse appreciation of evidence,nothing prevents the High Court from setting aside the orderof acquittal at the instance of the informant in revision anddirecting fresh disposal on merit by the trial court. In the eventof such direction, the trial court shall be obliged to reappraisethe evidence in light of the observation of the Revisional Courtand take an independent view uninfluenced by any of theobservations of the Revisional Court on the merit of the case.By way of abundant caution, we may herein observe thatinterference with the order of acquittal in revision is called foronly in cases where there is manifest error of law or procedureand in those exceptional cases in which it is found that theorder of acquittal suffers from glaring illegality, resulting intomiscarriage of justice. The High Court may also interfere inthose cases of acquittal caused by shutting out the evidencewhich otherwise ought to have been considered or where thematerial evidence which clinches the issue has been overlooked.In such an exceptional case, the High Court in revision can setaside an order of acquittal but it cannot convert an order ofacquittal into that of an order of conviction. The only courseleft to the High Court in such exceptional cases is to orderretrial.

12. The view, which we have taken finds support from adecision of this Court in Bindeshwari Prasad Singh v. Stateof Bihar [(2002) 6 SCC 650 : 2002 SCC (Cri) 1448] , in whichit has been held as follows: (SCC pp. 654-55, para 12)

“12. … Sub-section (3) of Section 401 in terms providesthat nothing in Section 401 shall be deemed to authorise

AHigh Court to convert finding of acquittal into one ofconviction. The aforesaid sub-section, which places alimitation on the powers of the Revisional Court, prohibitingit from converting finding of acquittal into one of conviction,is itself indicative of the nature and extent of the revisionalpower conferred by Section 401 of the Code of CriminalBProcedure. If the High Court could not convert finding ofacquittal into one of conviction directly, it could not do soindirectly by the method of ordering retrial. It is well settledby catena of decisions of this Court that the High Courtwill ordinarily not interfere in revision with an order ofCacquittal except in exceptional cases where the interest ofpublic justice requires interference for the correction of amanifest illegality or the prevention of gross miscarriage ofjustice. The High Court will not be justified in interferingwith an order of acquittal merely because the trial courthas taken wrong view of the law or has erred inDappreciation of evidence. It is neither possible nor advisableto make an exhaustive list of circumstances in whichexercise of revisional jurisdiction may be justified, butdecisions of this Court have laid down the parameters ofexercise of revisional jurisdiction by the High Court underESection 401 of the Code of Criminal Procedure in an appealagainst acquittal by private party.”

9. Applying the law laid down by this Court in the aforesaiddecisions and on plain reading of sub-section (3) of Section 401 Cr.P.C.,it has to be held that sub-section (3) of Section 401 Cr.P.C. prohibits/Fbars the High Court to convert finding of acquittal into one of conviction.Though and as observed hereinabove, the High Court has revisionalpower to examine whether there is manifest error of law or procedureetc., however, after giving its own findings on the findings recorded bythe court acquitting the accused and after setting aside the order ofacquittal, the High Court has to remit the matter to the trial Court and/orGthe first appellate Court, as the case may be. As observed by this Courtin the case of K. Chinnaswamy Reddy (supra), if the order of acquittalhas been passed by the trial Court, the High Court may remit the matterto the trial Court and even direct retrial. However, if the order of acquittalis passed by the first appellate court, in that case, the High Court hasHtwo 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 thetrial Court for retrial and in such situation the procedure as mentionedin 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 ofacquittal and reversing and/or converting finding of acquittal into oneof conviction and consequently convicted the accused, while exercisingthe powers under Section 401 Cr.P.C. The order of conviction by theHigh Court, while exercising the revisional jurisdiction under Section401 Cr.P.C., is therefore unsustainable, beyond the scope and ambit ofSection 401 Cr.P.C., more particularly sub-section (3) of Section 401Cr.P.C. Issue no.1 is answered accordingly.

10. Now so far as issue no.2, namely, in case where no appealis brought though appeal lies under the Code, whether revision applicationstill to be entertained at the instance of the party who could have appealed,the answer lies in sub-section (4) of Section 401 Cr.P.C. itself. Sub-section (4) of Section 401 Cr.P.C. reads as under:

“(4) Where under this Code an appeal lies and no appeal is brought,no proceeding by way of revision shall be entertained at the instanceof the party who could have appealed.”

10.1 It cannot be disputed that now after the amendment in Section372 Cr.P.C. after 2009 and insertion of proviso to Section 372 Cr.P.C., avictim has statutory right of appeal against the order of acquittal.Therefore, no revision shall be entertained at the instance of the victimagainst the order of acquittal in case where no appeal is preferred andthe victim is to be relegated to file an appeal. Even the same would be inthe interest of the victim himself/herself as while exercising the revisionaljurisdiction, the scope would be very limited, however, while exercisingthe appellate jurisdiction, the appellate Court would have widerjurisdiction than the revisional jurisdiction. Similarly, in case where anorder of acquittal is passed in any case instituted upon complaint, thecomplainant (other than victim) can prefer an appeal against the orderof 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.

10.2 As observed by this Court in the case of MallikarjunKodagali (supra), so far as the victim is concerned, the victim has notto pray for grant of special leave to appeal, as the victim has statutoryright of appeal under Section 372 proviso and the proviso to Section 372

Adoes not stipulate any condition of obtaining special leave to appeal likesub-section (4) of Section 378 Cr.P.C. in the case of complainant andin case where an order of acquittal is passed in any case institutedupon complaint. The right provided to the victim to prefer an appealagainst the order of acquittal is an absolute right. Therefore, so far asissue no.2 is concerned, namely, in case where the victim and/or theBcomplainant, as the case may be, has not preferred and/or availed theremedy of appeal against the order of acquittal as provided under Section372 Cr.P.C. or Section 378(4), as the case may be, the revision applicationagainst the order of acquittal at the instance of the victim or thecomplainant, as the case may be, shall not be entertained and the victimCor the complainant, as the case may be, shall be relegated to prefer theappeal as provided under Section 372 or Section 378(4), as the casemay be. Issue no.2 is therefore answered accordingly.

11. Now so far as the power to be exercised by the High Courtunder sub-section (5) of Section 401, Cr.P.C., namely, the High CourtDmay treat the application for revision as petition of appeal and deal withthe same accordingly is concerned, firstly the High Court has to pass ajudicial order to treat the application for revision as petition of appeal.The High Court has to pass judicial order because sub-section (5) ofSection 401 Cr.P.C. provides that if the High Court is satisfied that such

revision application was made under the erroneous belief that no appealElies 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 anddeal with the same accordingly, the High Court has to record thesatisfaction 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 forFrevision has been made to the High Court by any person, the High Courthas jurisdiction to treat the application for revision as petition of appealand deal with the same accordingly as per sub-section (5) of Section401 Cr.P.C., however, subject to the High Court being satisfied that suchan application was made under the erroneous belief that no appeal liesGthereto and that it is necessary in the interests of justice so to do and forthat purpose the High Court has to pass judicial order, may be formalorder, to treat the application for revision as petition of appeal and dealwith the same accordingly.

12. Now the next question is what order should be passed in acase like the present. This Court may either set aside the impugnedH

judgment and order passed by the High Court setting aside the acquittaland convicting the accused so as to enable the High Court to remit thematter to the first appellate Court to rehear the appeal after consideringthe findings recorded by it or to remit the matter to the High Court totreat the revision application as petition of appeal against the order ofacquittal, which otherwise is permissible under sub-section (5) to Section401 Cr.P.C. As observed hereinabove, as such, while exercising thepowers under sub-section (5) to Section 401 Cr.P.C. to treat the revisionapplication as petition of appeal, the High Court is required to pass ajudicial order. However, considering the fact that even otherwise beingvictims they are having the statutory right of appeal as per proviso toSection 372 Cr.P.C., we deem it fit and proper to remit the matter to theHigh Court to treat the revision applications as petition of appeals underSection 372 Cr.P.C. and to decide the same in accordance with law andon 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 awider scope and jurisdiction as an appellate Court, rather than therevisional court.

13. In view of the above and for the reasons stated above, theimpugned common judgment and order passed by the High Court reversingthe acquittal and convicting the accused is hereby quashed and set aside.The matters are remitted to the High Court. The High Court is directedto treat the revision applications as appeals under Section 372 Cr.P.C.and thereafter to decide and dispose of the same in accordance withlaw on their own merits.

14. The present appeals are accordingly allowed in the aforesaidterms.

Devika Gujral

Appeals allowed.