1990 Supreme(MP) 660

IN THE HIGH COURT OF MADHYA PRADESH
GULAB C. GUPTA. J.
Shridhar Shastri – Appellant
Vs.
Prakashwati – Respondent
Cr. Misc. Case No. 2194 of 1988 (J)
Decided on : 16-08-1990

Headnote:(1) Criminal Procedure Code, 1973 – S. 397, 399 and 401 – Sessions Court and High Court both have concurrent jurisdiction of revision – Sessions Court should be approached first.

       (2) Criminal Procedure Code, 1973 – S.397 – revision under – order of acquittal may be set aside on revision petition filed by private party.

       (3) Criminal Procedure Code, 1973 – S.378 and 397 – acquittal not challenged by State in appeal – private party may challenge the same in revision.

        Short Note

       1. The State does not seem to have challenged the acquittal of non – applicants. The applicant – complainants, however, filed revision under section 397 Cr.P.C. in the Court of Sessions Judge, Raisen challenging the aforesaid acquittal. Non – applicants were summoned by the learned Sessions Judge to ascertain whether the revision was maintainable. On 12 – 2 – 1988, the learned Judge, after hearing the parties, held that the revisional jurisdiction of this Court has to be exercised in the context of section 401 (4) (5), Cr.P.C. and, therefore, could not be exercised in those cases where appeal could be filed. The learned Judge, therefore, held that since appeal against the order of acquittal could be filed under section 378 Cr.P.C., the revision was not maintainable. It is this order, which is impugned in this application.

       2. Held: There is no dispute between the parties that the proceedings resulting in acquittal were started on a charge – sheet filed by the State. It was, therefore, not a complaint case. There also appears to be no dispute that the State could have filed appeal against the impugned order of acquittal after obtaining leave to appeal from this Court under section 378 (3) Cr.P.C. It is, therefore, common ground that only the State could have initiated action against the aforesaid order of acquittal, which has not done so. As a necessary consequence. It must be held that the remedy provided under section 378 Cr.P.C. is not available to the applicant. A bare reading of section 378 Cr.P.C. would indicate that action against acquittal lies in the High Court and not in the revisional Court. The question for consideration of this Court is whether the applicant, who was the complainant in the aforesaid case, could challenge the order of acquittal by filing a revision. As far as revision in this Court under section 401 Cr.P.C. is concerned, it appears settled that this Court has jurisdiction to interfere with it and set aside the acquittal provided a proper case for the purpose has been made out. See State of Bihar v. Ram Naresh Pandey and another (AIR 1957 S.C. 389), K. Chinnaswamy Reddy v. State of Andhra Pradesh and another (AIR 1962 S.C. 1788), Ramekbal Tiwary v. Madan Mohan Tiwary and another (AIR 1957 S.C. 1156), Khetra Basi Samal and another v. The State of Orissa, (AIR 1970 S.C. 272), Ramesh Chandra J. Thakur v. A.P. Jhaveri and another (AIR 1973 S.C. 84). In Satyendra Nath Dutta and another v. Ram Narain (AIR 1975 SC 580), it was indicated that the High Court will interfere with an order of acquittal in revision only when serious injustice has been caused by an error of law and even when it finds such a case made out, the High Court will interfere only to order a retrial after setting aside acquittal. It has always been emphasised that the revisional jurisdiction of the High Court is not to be lightly exercised. It could be exercised only in exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality or the prevention of a gross miscarriage of justice. The view of this Court as appearing in Hittu Bansi v. Sheolal Dinaj and another (AIR 1948 Nagpur 24 and Kashiram v. Bhagwandas Lallu Kurmi and another (AIR 1959 M.P. 75) is also the same. Under the circumstances, there should be no difficulty in holding that the revision at the instance of the applicant was maintainable in this Court.

       3. The further question requiring consideration is whether a revision under section 397 Cr. P C. before the Sessions Court is also maintainable. Section 397 Cr. P.C. confers concurrent jurisdiction on the High Court and the Sessions Court to call for and examine the record of any proceeding before any inferior criminal Court, situate within its or his legal jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or any order recorded or passed and as to the regularity of any proceeding of such inferior Court. In spite of it, the High Court did not entertain an application for revision where the applicant could have applied to the Sessions Judge and had not done so (See Ramlal Verma v. State of M.P. (1973 Cr.L.J. 1670) and Shaukat Hussain and another v. Sheodayal Saksaina (AIR 1958 M.P. 350). The practice had developed because it was considered proper to prevent the time of the High Court from being wasted and also to have the advantage of the opinion of the Sessions Judge in the case. This practice, however, did not oust the jurisdiction of the High Court in the matter. It would, therefore, appear that even though the High Court and the Sessions Court both had concurrent jurisdiction under section 397 Cr.P.C., it was appreciated if the jurisdiction of the Sessions Court was first invoked. It may be that under the present Code, this rule cannot be followed, as it would result in the destruction of the right of the party to move the High Court and yet it does not take away the tight of a party to select the forum of its own choice under this provision. Section 397 (3) Cr. P.C. is very clear on this point. It must, therefore, be held that a Sessions Judge exercising revisional jurisdiction under section 399 Cr.P.C., exercises all the powers which the High Court is entitled to exercise under section 401 Cr.PC and his order thereupon has the same finality as the order of the High Court passed under section 401 Cr.P.C. There is. Therefore, no reason why the Sessions Court could not have passed the same order on the revision application of the; applicant, as this Court would have done if the revision was filed in this Court. Indeed, this Court thinks that in view of extra – ordinary jurisdiction of this Court under section 482 Cr.P.C., it might still be profitable for an applicant to first approach the Sessions Court for the purpose. This Court's power to correct an error committed by the Sessions Court in exercise of revisions jurisdiction is not in dispute that it will be exercised with care and circumspection and only in exceptional cases.

       4. In view of the aforesaid, it is the considered view of this Court that the applicant as a complainant, had a right to challenge the impugned – order of acquittal by filing a revision before the Sessions Court. The view of the learned Sessions Judge that since an appeal was maintainable against the judgment or acquittal, cannot prima facie be accepted as correct, as this applicant had no such right of appeal. Under the circumstances, the impugned – order must be set – aside and the matter remanded to the Sessions Court for re – hearing and decision thereof, in accordance with law. AIR 1957 SC 389, AIR 1962 SC 1788, AIR 1967 SC 1156, AIR 1970 SC 272, AIR 1973 SC 84. AIR 1975 SC 580, AIR 1959 MP 75, 1973 Cr.L.J. 1670 and AIR 1953 MP 350 relied on.

       Petition allowed.