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KERALA HIGH COURT
Alexander Thomas, J.
Sivadasan — Petitioner
versus
Harish & Ors. —Respondents
Crl. M.C. No. 2496 of 2017
Decided on 20.6.2017
Held: It has been held by the Apex Court in State of Punjab v. Balbir Singh reported AIR 1994 SC 1872: 1994 3 SCC Cri. 634 p.643 that the expression “otherwise dealt with” appearing in sub-section (2) of section 4 of the Cr.P.C,, 1973 does not necessarily mean something which is not included in the investigation, inquiry or trial and the word “otherwise” points out to the fact that the expression “dealt with” is all comprehensive and that investigation, inquiry and trial are some aspects dealing with the offence. It has been also held in Delhi Administration v. Ram Singh reported in AIR 1962 SC 63 : (1962) 1 Cri.L.J 106t hat the word “otherwise” appearing in that provision of the Cr.P.C points to the fact that the expression “dealt with” is all comprehensive and that investigation, inquiry and trial are some aspects “dealing” with offence and that the words “otherwise dealt with” refer to such dealing with offences as is provided in the Cr.P.C apart from the provisions for inquiry or trial. Therefore, in view of the wholesome principles contained in section 4(2) of the Cr.P.C,, 1973 the provisions contained in the Cr.P.C not only in respect of inquiry and trial, but also in respect of appeals, revisions, etc., as contained in the Cr.P.C, would also be applicable in respect of a trial involving offence under section 138 of the N.I. Act, so long as there are no special provisions in that regard in the special statute. Since that is the position flowing from section 4(2) of the Cr.P.C,, 1973 if the statute provides for a specific remedy by way of appeal or revision, then the aggrieved party is ordinarily bound to avail of such specific remedy. Of course, the inherent extra ordinary powers under section 482 of the Cr.P.C., 1973stand on a different footing. But this case is not in any manner concerned with the facts under section 482 of the Cr.P.C., 1973 The operative portion of section 372 of the Cr.P.C., 1973would stipulate that no appeal shall lie from any judgment or order of a Criminal Court except as provided for by the Code or by any other law for the time being in force. Sections 373, 374, 377, 378, 379, 380, etc., explicitly provide for invocation of the appellate remedy and the manner and method of seeking such appellate remedy. Sections 375 and 376 deal with the power of appeal in certain contingencies. In the instant case, it is not in doubt that the judgment/order of acquittal rendered by the trial court under the enabling powers under section 256(1) of the Cr.P.C , 1973could be challenged by firstly seeking special leave from the High Court for filing Criminal Appeal and after obtaining such special leave, to institute Criminal Appeal in that regard. When such remedy is so provided, then such aggrieved party has to necessarily recourse to that remedy and therefore it would be improper to hold that such aggrieved complainant will also have concurrent remedy of revision before the Sessions Court. In the light of these aspects, this Court is constrained to hold that the view taken by the Sessions Court that revision is maintainable as against the judgment/order of acquittal rendered under section 256(1) of the Cr.P.C , 1973is illegal and improper. For these reasons the impugned Anx-B order passed by the Sessions Judge, Palakkad, allowing Crl.R.P.No.59/2016 is set aside as the Sessions Judge did not have jurisdiction to entertain revision. The proper remedy for the aggrieved 1st respondent-complainant to challenge Anx.-A order of acquittal was to seek special leave before this Court for instituting Criminal Appeal as envisaged in section 378(4) of the Cr.P.C., 1973 Therefore, it is also held that it will be certainly open to the 1st respondent-complainant to work out his remedies as against Anx-A order of acquittal strictly in accordance with law. (Para 14)
Result: Petitions disposed of with observations.
Alexander Thomas, J. —The petitioner is the accused for the offence punishable under section 138 of the Negotiable Instruments Act, in S.T. No. 1224/2015 on the file of the Chief Judicial Magistrate Court, Palakkad, instituted on the basis of a complaint instituted by the 1st respondent herein. The trial court had taken cognizance of the offence and thereafter issued summons to the accused who had entered appearance and thereafter the matter was posted for tendering of evidence of the complainant. The matter come up before the trial court on various occasions to tender evidence on 27.7.2016, 2.9.2016 and on 28.10.2016 and on these days the trial court found that the complainant was continuously absent, but there was application filed for adjournment. But the trial court adjudged that the said request for adjournment lacks bona fides and the same was rejected as the personal appearance of the complainant is required for evidence. Since the complainant continuously failed to appear to give evidence, no purpose will be served in continuing the proceedings and the learned Magistrate held that the accused will stand acquitted of the offence by virtue of the enabling provisions under section 256(1) of the Cr.P.C., 1973 That the order passed by the trial court under section 256(1) of the Cr.P.C , 1973is the one acquitting the accused and therefore the remedy is to file a special leave. Aggrieved by the said Anx-A order, the 1st respondent-complainant had preferred Crl.R.P.No.59/2016 before the Sessions Court, Palakkad, by taking recourse to the remedy conferred under section 397 of the Cr.P.C., 1973 The Sessions Court, Palakkad, had issued notice to the respondent therein (accused). The respondent therein (accused) took up the contention that revision under Section 397 is not maintainable in view of the bar engrafted under Section 401(4) r/w section 399(1) of the Cr.P.C , 1973 in as much as to the extent it has provided that where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. It was also contended that the remedy of the complainant to challenge the impugned judgment of acquittal rendered by the trial court in a private complaint is to prefer special leave under section 378(4) of the Cr.P.C., 1973 so as to secure special leave of the High Court to file Criminal Appeal to impugn such judgment of acquittal rendered by the trial court. Since such an appellate process is conferred by the Cr.P.C, though hedged with a condition for special leave, the bar as stated above would apply and therefore the Sessions Court does not have the jurisdiction to entertain the above said revision. The Sessions Court overruled the said contention of the respondent therein (accused) on the basis of the judgment of the Apex Court in Maj. Genl. A.S.Gaauraya & anr. v. S.N.Thakur & anr. reported in AIR 1986 SC 1440, which in turn had relied on another judgment on the Apex Court in Bindeshwari Prasad Singh v. Kali Singh reported in AIR 1977 SC 2432. On the basis of the said rulings, the Sessions Court observed that the remedy of a complainant to challenge an order of acquittal under section 256(1) of the Cr.P.C , 1973is to move the Sessions Court or High Court in revision and accordingly held that the Sessions Court has jurisdiction to entertain the revision on merits and on the merits of the matter, the Sessions Court has held that the lapse of the complainant in not appearing before the trial court could be condoned subject to payment of cost and subject to such condition the complaint was remitted to the trial court for further proceedings in the trial. A copy of the said revisional order passed by the Sessions Court on 15.3.2017 in S.T.No.59/2016 has been produced as Anx-B. The accused has now challenged the legality and correctness of the impugned Anx-B order by filing the present petition by invoking the inherent powers conferred under
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