Jitendra Kumar, J. – The present criminal revision petition has been preferred against the judgment dated 01.12.2017 passed by learned Fast Track Court, Vaishali at Hajipur in Criminal Appeal No. 21 of 2003, whereby learned Appellate Court has set aside the judgment of conviction and order of sentence dated 10.03.2003 passed by learned Judicial Magistrate Ist Class, Vaishali at Hajipur who has convicted the O.P. Nos. 2, 3 and 4 herein under Section 324 read with Section 34 of the Indian Penal Code and sentenced accordingly.

Factual background

2. The factual background of the case is that on the fardbeyan of the victim/informant Ramjee Singh, Lalganj P.S. Case No. 138 of 1995 was registered for the offences punishable under Sections 341, 323, 324 and 326 read with Section 34 of the Indian Penal Code against the accused persons including Opposite Parties Nos. 2, 3 and 4 herein.

3. During the trial arising out of Lalganj P.S. Case No. 138 of 1995, learned Trial Court has convicted the accused, who are opposite parties herein, under Section 324 read with Section 34 of the Indian Penal Code and one co-accused was acquitted of all the charges. Thereafter, convicts who are O.P. Nos.2, 3 and 4 herein preferred Criminal Appeal bearing No. 21 of 2003 before the Court of Sessions, which was disposed of by learned Fast Track Court, Vaishali at Hajipur vide impugned judgment dated 01.12.2017. The learned Appellate Court allowed the appeal acquitting the convicts of all the charges. Hence, the son of the victim/informant/Ramjee Singh has preferred the present Criminal Revision against the judgment of acquittal passed by learned Appellate Court below.

Submissions of the parties

4. However, during hearing of the revision petition, preliminary objection has been raised by learned APP for the State and learned counsel for the O.P. Nos. 2, 3 and 4 that present criminal revision petition is not maintainable.

5. They submit that in view of the Proviso to Section 372 read with Section 378 Cr.PC, the petitioner should have filed Criminal Appeal after obtaining Leave of this Court. They further submit that the present Criminal Revision is hit by Section 401(4) Cr.PC.

6. Per contra, learned counsel for the petitioner submits that in view of the acquittal of O.P. No.2 by lower Appellate Court in Criminal Appeal No. 21 of 2013, the petitioner/victim has rightly filed the present Criminal Revision, because the impugned judgment is already passed by the Lower Appellate Court and no further appeal could lie against the Appellate judgment. Under such circumstances, only remedy left with the victim/petitioner herein was to file Criminal Revision against the impugned judgment.

Consideration

7. I considered the submissions advanced by both the parties and perused the material on record.

The question involved

8. In view of the facts and circumstances of the case, the question is what is the legal remedy to the victim/petitioner herein against the Appellate judgment of acquittal – whether the petitioner has rightly filed Criminal Revision or he should have filed Criminal Appeal with or without Leave of this Court.

Legal provisions

9. Criminal Appeal in case of acquittal is provided under Section 378 Cr.PC, which reads as follows: –

“Section 378 in The Code of Criminal Procedure, 1973 Appeal in case of acquittal. – [(1) Save as otherwise provided in Sub-Section (2), and subject to the provisions of Sub-Sections (3) and (5), –

(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;

(b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision.]

(2) If such an order of