Ashok Abaji Gaikwad and another vs State of Maharashtra

[Having considered in Paras 1 to 18 the evidence on record and observed that the order of conviction and sentence recorded by the Sessions Court was not sustainable and had to be set aside, the judgment proceeds - ]

Before parting with this judgment, it is necessary to recapitulate some of the features of these proceedings. The learned Sessions Judge who tried the accused for an offence punishable u/s 302 read with Section 34 of the Indian Penal Code was not persuaded that the action of accused Nos. 1 and 2 was such as to bring the offence u/s 302 read with Section 34 of the Indian Penal Code. He thought that at best the accused could be convicted u/s 325 read with Section 34 of the Indian Penal Code, which the learned Sessions Judge did. The State itself did not prefer an appeal against the order of acquittal passed by the learned Sessions Judge in respect of the offence u/s 302 read with Section 34 of the Indian Penal Code-No revision application was filed against the said order of acquittal by the party of the complainant. Against the sentence awarded by the learned Sessions Judge for the offence u/s 325 read with Section 34 of the Indian Penal Code also, the State has not preferred an appeal, which could have been done u/s 377 of the Code. In view of this it is not possible to agree with the course adopted by Kolse-Patil J. Kolse-Patil, J. has altered the conviction recorded by the learned Sessions Judge u/s 325 read with Section 34 of the Indian Penal Code to one u/s 302 read with Section 34 of the Indian Penal Code. While doing so, Kolse-Patil, J. thought that he was allowing the revision application filed by the State when in fact there was no revision application at all by the State, as I have already mentioned above. What has been described as criminal revision application is only a notice issued by the Division Bench while admitting the appeal for enhancement of sentence. It is only for the purpose of making entries in the register of this Court that such notices for enhancement of sentence are called criminal revision applications.

That apart, even if there were a criminal revision application by the State against the order of acquittal, which could not in law be done, this Court cannot, in exercise of its revisional jurisdiction, convert an order of acquittal into one of conviction. Section 401 of the Code of Criminal Procedure is in the following terms:-

(1) In case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392.

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.

Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.

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.

It is clear from what is stated in sub-section (3) of Section 401 of the Code that in exercise of the power of revision the High Court, cannot convert a finding of acquittal into one of conviction. This is so even where not the State but a private party prefers a revision application against an order of acquittal.

As I have already mentioned above, what was before the Division Bench of Kotwal and Kolse-Patil JJ. was a notice for enhancement of the sentence. Even if an appeal had been preferred by the State against what it would regard as an inadequate sentence, that appeal would be u/s 377 of the Code of Criminal Procedure. The State would not after the year 1973 prefer a revision application against what it would regard as lenient sentence. It would necessarily prefer an appeal u/s 377 of the Code. Even in such an appeal preferred by the State against what it would regard as inadequate sentence awarded by the trial Court, an order of acquittal cannot be converted into an order of conviction. u/s 386 of the Code of Criminal Procedure, in an appeal for enhancement of the sentence, the appellate Court may reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, or alter the finding maintaining the sentence, or with or without altering the finding, alter the nature or the extent or the nature and extent, of the sentence, so as to enhance or reduce the same. The power to alter the finding is only for the purpose of disposing of an appeal for enhancement of the sentence; not for the purpose of convicting the accused for a higher offence than me one for which he had been convicted in the Court below. Section 386 of the Code does not empower the appellate Court to convert an order of acquittal into one of conviction.

Even u/s 401 of the Code of Criminal Procedure, which empowers the High Court to exercise the powers conferred on a Court of appeal while exercising its revisional jurisdiction, the High Court, by virtue of sub-section (3) of Section 401, cannot alter a finding of acquittal into one of conviction. Though mere is provision for an appeal for enhancement of the sentence u/s 377 of the Code, the High Court can act suo motu for enhancement of the sentence. It has been stated by the Supreme Court in Nadir Khan vs. State, AIR 1976 Supreme Court 2205, that the existence of Section 377 of the Code does not exclude the revisional jurisdiction of the High Court to act suo motu for enhancement of the sentence in appropriate cases. It is in exercise of this jurisdiction that the Division Bench while admitting tins appeal issued the notice for enhancement of me sentence. This power of the High Court to issue notice for enhancement of the sentence despite the insertion of a provision for an appeal against the sentence has again, been recognised by me Supreme Court in Eknath vs. State of Maharashtra, AIR 1977 Supreme Court 1177.

This, however, does not mean that the High Court can, in exercise of its revisional jurisdiction to issue notice for enhancement of sentence, alter an order of acquittal into one of conviction. The High Court is still exercising only powers of revision and the powers of revision have been spelt out, apart from the express provisions in the Code itself, in a series of decisions of the various High Courts and of the Supreme Court. One only of such decisions needs to be referred here. In Chinnaswamy vs. State of Andhra Pradesh, AIR 1962 Supreme Court 1788, to which several other subsequent judgments have made repeated reference, it has been pointed out that the revisional jurisdiction vested in the High Court to set aside an order of acquittal even at the instance of private parties can be exercised only in exceptional cases. This is so especially because sub-section (4) of Section 439 of the Code of Criminal Procedure, 1898, corresponding to sub-section (3) of Section 401 of the present Code, specifically prohibits the High Court from converting a finding of acquittal into one of conviction. The maximum that could be done by the High Court while reversing an order of acquittal is to order a re-trial which itself, if at all, is rarely done. In my opinion, therefore, the order of Kolse-Patil, J. converting the order of acquittal into one of conviction in exercise of the revisional jurisdiction commencing with the issuance of the notice for enhancement of the sentence by the Division Bench is not authorised by law.

I would, however, suggest that the office of the High Court should use a different nomenclature for the notices issued suo motu for enhancement of the sentence. If a party prefers a criminal revision application, there is a regular application. It can, therefore, be legitimately called a revision application. But when a Court issues a notice suo motu there is no application at all. Therefore to call it a criminal revision application would be a misnomer and would be misleading, as it has happened in this case. I, therefore, suggest that the Registrar should take up this issue immediately with the learned Chief Justice for obtaining necessary directions to maintain a separate register for the notices issued for enhancement of the sentence as distinguished from criminal revision applications preferred either by the State or by private parties.

In the result, I allow this appeal and set aside the order of conviction and sentence recorded by the learned Additional Sessions Judge of Pune against the appellants-accused in Sessions Case No. 80 of 1979. The bail bonds of the accused stand cancelled.

The appeal shall now be placed before the Division Bench of Kotwal and Kolse-Patil, JJ. for pronouncement of final order in accordance with Rule 6 of Chapter I of the Bombay High Court Appellate Side Rules, 1960.