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IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. BABU, J.
Rajan Thazhaye Unnampurath – Appellant
Versus
Anil Kumar, Valiyedathu Puthen – Respondent
Crl.M.Appl.No.2/2024 In Crl.Rev.Pet No. 3886 of 2009
Decided on : 01-08-2024
Recall - Conviction - Cr.P.C. Section 401, 362 - The court emphasized that under Section 401, a High Court cannot convert an acquittal into a conviction, rendering the previous order a nullity. Section 362 restricts altering judgments, but inherent powers can be invoked to recall orders made without jurisdiction.
Fact of the Case:
The petitioner was convicted under Section 138 of the Negotiable Instruments Act, but was acquitted by the Sessions Court. The complainant challenged this acquittal in a revision petition, leading to the High Court convicting the petitioner, which was later contested as being without jurisdiction.
Finding of the Court:
The court found that the order converting acquittal into conviction was made without jurisdiction, thus it was a nullity. The court also clarified that inherent powers could be exercised to recall such an order.
Issues: Whether the High Court had the jurisdiction to convert a finding of acquittal into a conviction under Section 401 of the Cr.P.C.
Ratio Decidendi: The court held that Section 401(3) prohibits the High Court from converting an acquittal into a conviction, and such an order is a nullity. Inherent powers can be invoked to recall orders made without jurisdiction.
Result: The order dated 04.04.2024 is recalled.
ORDER :
The petitioner, the accused in C.C.No.908 of 2003 on the file of the Munsiff Magistrate’s Court, Paravur, seeks to recall the order convicting him by this Court exercising its revisional jurisdiction. Respondent No.1 filed a complaint against the petitioner alleging the offence under Section 138 of the Negotiable Instruments Act, 1881. The Trial Court convicted him. The petitioner challenged the conviction before the Sessions Court, Kollam, by filing Crl.A.No.350 of 2008. The Sessions Court acquitted the petitioner of the offence alleged.
2. The complainant challenged the acquittal in this revision petition under Section 401 Cr.P.C.
3. This Court on 15.12.2009 admitted the Revision Petition. As per order dated 04.04.2024, this Court convicted the accused and sentenced him to pay a fine of Rs.7,00,000/-.
4. I have heard the learned counsel for the petitioner, the learned counsel for respondent No.1 and the learned Public Prosecutor.
5. The learned counsel for the petitioner/accused submitted that the order converting a finding of acquittal into one of conviction exercising the power under Section 401 Cr.P.C. is without jurisdiction and therefore, the order is a nullity. The learned counsel urged that as the order passed is without jurisdiction, and thus, a nullity, it can be recalled exercising the inherent powers of this Court. The learned counsel relied on State of Punjab v. Davinder Pal Singh Bhullar and Others [(2011) 14 SCC 770], New India Assurance Company Ltd v. Krishna Kumar Pandey [(2021) 14 SCC 683], Joseph Stephen v. Santhanasamy [MANU/SC/0086/2022] Bindeshwari Prasad Singh v. State of Bihar [(2002) 6 SCC 650] in support of his contention.
6. The challenge in this revision was against the finding of acquittal by the Sessions Court Kollam. This Court admitted the revision and proceeded to hear the parties exercising the jurisdiction under Section 401 Cr.P.C,
7. Section 401 Cr.P.C. reads thus:-
(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.
(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.
(4) 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.
(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.”
8. Sub-section (3) of Section 401 says that a High Court is not authorised to convert a finding of acquittal into one of conviction while exercising revisional jurisdiction. In Bindeshwari Prasad Singh (Supra), the Supreme Court held that sub-section (3) of Section 401 places a limitation on the powers of the revisional Court prohibiting it from converting a finding of acquittal into one of conviction. In Joseph Stephen (Supra), following Bindeshwari Prasad Singh (Supra), the Supreme Court held that the order of conviction by the High Court exercising the revisional jurisdiction under Section 401 Cr.P.C. cannot be sustained and it is beyond the scope and am
A High Court cannot convert an acquittal into a conviction under Section 401 Cr.P.C., and such an order is a nullity, justifying its recall.
Revision – High Court does not have authority to convert a finding of acquittal into one of conviction while exercising its Revisional power.
(1) No revision shall be entertained at instance of victim against order of acquittal in a case where no appeal is preferred and victim is to be relegated to file appeal.(2) Right provided to victim ....
The revisional jurisdiction of the High Court is extremely narrow and can only be exercised in exceptional cases where there is a manifest error of law or procedure, and the High Court cannot convert....
The complainant must obtain special leave to appeal against an acquittal under Section 378(4) of the Cr.P.C., distinguishing their rights from those of victims, who have a statutory right to appeal w....
VERY In exercise of revisional jurisdiction under Section 401 Cr.P.C., 1973 against an order of acquittal at the instance of informant, the court exercises only a limited jurisdiction and it should n....
A court cannot review its own judgment once signed, except to correct clerical errors, and inherent powers to recall judgments are limited to jurisdictional errors or violations of natural justice.
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