Point of Law: Hon’ble Supreme Court has held that where under Cr.P.C. an appeal lies, but an application for revision has been made to High Court by any person, High Court has jurisdiction to treat application for revision as a petition of appeal and deal with same accordingly as per sub-section (5) of Section 401 Cr.P.C.

ORDER :

1. Heard Mr. S.C. Biswas, learned counsel for the petitioners. Also heard Mr. G.N. Sahewalla, learned Senior Counsel assisted by Mr. H.K. Sarma, learned counsel for the respondent.

2. This revision petition, under Sections 397/401/482 of the Code of Criminal Procedure, is directed against the order, dated 28.08.2019, passed by the learned Chief Judicial Magistrate, Kamrup, Guwahati in C.R. Case No. 3874/2016, under Sections 138/142 of the N.I. Act.

3. It is to be noted here that vide impugned order, dated 28.08.2019, the learned Court below has dismissed the complaint filed by the petitioners, namely, Md. Atowar Rahman and Smti Farida Begum, on account of failing to comply with the order, dated 29.07.2019, and also for non-prosecution and discharged the accused accordingly. It is also to be noted here that vide order dated 29.07.2019, the learned Court below has given the last chance to the complainant to remain present on that day and to prosecute the matter, as the complainant remained absent without showing the cause on that day, it has dismissed the complaint and discharged the accused.

4. At the time of hearing, Mr. G.N. Sahewalla, learned Senior Counsel, placing reliance on 2 (two) judgments of Mumbai High Court in Om Gayatri and Co. and Others vs. State of Maharashtra and Another (Criminal W.P. No. 361 of 2003) and Vinaykumar Maliwal vs. Ramesh Saboo, (2008) Cri. L.J. 2123 and one judgment of Delhi High Court Kalpana Tyagi vs. Sneh Lata Sharma [Criminal M. (M) Nos. 3083 and 3147 of 1994], strenuously argued that the learned Court below has discharged the accused for nonprosecution and the case was a complaint case filed under Sections 138/142 of the N.I. Act and the case was a summon case, it had discharge of the accused, which amounts to acquittal as per provision of Section 256 of the Code of Criminal Procedure and only appeal will lie in the High Court against such an order and not a revision.

5. The contention of Mr. G.N. Sahewalla, learned Senior Counsel, is controverted by the learned counsel for the petitioner, Mr. S. C. Biswas, and submits that since the Court below has discharged the accused, revision will lie against the order of discharge and Mr. Biswas has referred one case of Hon’ble Supreme Court in Associated Cement Co. Ltd. vs. Keshvanand, AIR 1998 SC 596 and also a decision of a coordinate Bench of this Court in Chief Executive Officer vs. Tenzing Gopu Lama and Others, 2008 (4) GLT 707.

6. Having heard the submissions of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and the impugned order of the learned Court below, dated 28.08.2019 and also the case laws referred by learned Advocates of both sides in respect of their submissions and in view of the given factual position discussed here in above, this Court is of the considered opinion that the discharge of the accused, here in this case, under Section 256 of Code of Criminal Procedure, amounts to acquittal and appeal will lie against the impugned order.

7. Now, there remains to be seen as to whether this Court can convert this revision petition into an appeal petition in view of the provision of Section 401 (5) of the Code of Criminal Procedure. Accordingly, both the parties were heard at length on 22.07.2022 and also today, i.e. 28.07.2022.

8. While the learned counsel for the petitioner, referring to Section 401 (5) of the Code of Criminal Procedure, submits that this Court has ample power to convert the revision petition into an appeal petition by passing a judicial order.

9. On the other hand, Mr. G.N. Sahewalla, learned Senior Counsel, submits that the petitioner has to take leave of this Court as per provision of Section 378 (4) of Cr.P.C. and he cannot be treated as a victim as he is the complainant of this case and as such, the provision of Section 372 Cr.P.C. is not applicable here in this case. Therefore, Mr. Sahewalla contended to dismiss this petition.

10. Having heard the submis