IMPORTANT POINTS
(1) Remedy against Order of acquittal – No revision can be entertained at instance of a victim against order of acquittal where remedy of appeal is available in Cr.P.C.
(2) Murder – Section 27 (Evidence Act, 1872) recovery alone cannot lead to conviction – Order of acquittal cannot be overturned if view taken in order of acquittal is plausible.

JUDGMENT :

K. VINOD CHANDRAN, J.

Leave granted.

2. A distraught brother was before the High Court of Judicature at Bombay with a Criminal Revision Application against the judgment of acquittal passed in a case in which the accused were arrayed for the murder of one Qavi. The order of acquittal was once upset by the High Court but without hearing the accused. An SLP was filed in which, by Annexure P13 the matter was remitted back to the High Court noticing Section 401(2) of the Criminal Procedure Code, 1973 (for short, ‘Cr.PC) which restricts the revisional power being exercised to the prejudice of the accused, unless there is an opportunity afforded for hearing, either personally or through Counsel; which obviously was not provided since the Advocate engaged had expired.

3. On remand, the High Court again by the impugned order remitted the matter to the Additional Sessions Judge to consider afresh the testimony of the eyewitnesses coupled with the recoveries made under Section 27 of the Indian Evidence Act, 1872 and the Chemical Analysis Report produced. The finding of the Trial Court refusing to place any credence on the dying declarations were upheld. The accused are before us challenging the order of remit with respect to an incident alleged to have occurred on 14.02.1988.

4. The 1st respondent who was the revision petitioner had sought for an appointment of a Senior Advocate through legal services and Ms. Mukta Gupta, Senior Advocate was appointed by this Court assisted by Mr. Anuj Agarwala, learned AOR. A question was also raised by this Court by order dated 17.12.2024 as to whether in a case of acquittal under Section 302 of the Indian Penal Code, the revision petition has to be placed before a Division Bench or a Single Bench; the impugned order having been passed by a Single Judge. We heard Mr. Amol Nirmalkumar Suryawanshi, the learned AOR for the appellants.

5. As to the question raised, we find that the same is now academic. As on the date of filing of the criminal revision application, there was no provision for appeal by the victim from an order of acquittal and Section 378 of the Cr.P.C only provided for an appeal in case of acquittal, by the State, that too after obtaining leave of the High Court. However, as pointed out in the written submissions placed before us by the learned Amicus, a proviso was introduced under Section 372 of the Cr.P.C wherein the victim was provided with 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; as inserted by Act 5 of 2009. It has also been held by this Court in Mallikarjun Kodagali v. State of Karnataka, (2019) 2 SCC 752 that the victim is not required to pray for grant of special leave to appeal, as under section 378, since he has been conferred with a statutory right under the proviso to Section 372 which does not provide for obtaining a special leave to appeal unlike in sub-section (4) of Section 378. Joseph Stephen v. Santhanasamy, (2022) 13 SCC 115 relying on Mallikarjun Kodagali (supra) held that no revision can be entertained at the instance of a victim against the order of acquittal where the remedy of appeal is available in the Cr.P.C, after the 2009 amendment.

6. It is also pertinent to note here that while Section 401 of Cr.P.C delineates the power of revision, sub-section (4) prohibits the entertainment of any revision at the instance of a party who has a remedy to file an appeal, which had not been availed of. This does not preclude the High Court from taking up a revision since as per sub-section (1) of Section 401, it could be considered even suo motu as is provided for by the words employed:

“In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Section 386, 389, 390 and 391 or on a Court of Ses