Ashok Datta vs Dhruba Acharjee and Others

B.B. Deb, J.—Heard Mr. M. Kar Bhowmik, learned senior counsel appearing for the Petitioner and Mr. D. Sarkar, learned Public Prosecutor, Tripura. Also heard Mr. D. Guha, learned Counsel for the Respondents.

This petition only u/s 482 of the criminal Procedure code has been filed by the injured challenging the order of acquittal recorded on 26.7.1996 by the learned Additional Sessions Judge, West Tripura, in Sessions Trial No. 82 (W.T./A) of 1995.

On the basis of an information Airport Police registered the P.S. case No. 3(1)/90 u/s 341/325/340 against the Respondents-accused No. l to 6. Initially, on completion of investigation the police furnished the final report. But the learned Chief Judicial Magistrate instead of accepting the same ordered for reinvestigation. After investigation, the Investigating officer furnished, chargesheet against the Respondents accused u/s 341/325/326/307 I.P.C. The offence punishable u/s 307 being exclusively triable by the Court of session the case was committed and having framed charge the learned trial Court held the trial and on conclusion acquitted the accused Respondents by the impugned order.

Admittedly, it is a "police challan" case and in view of Sub-section (2) of Section 378 of the Code of Criminal Procedure appeal against acquittal in such a case can only be preferred by the Public Prosecutor or the Central Government as the case may be, but against acquittal recorded in such police challan case no appeal is entertainable at the instance of private individual be he aggrieved or informant. In such cases, the Government may direct the Public Prosecutor to prefer the appeal. This Court has been armed with an inherent power u/s 482 Code of Criminal Procedure to make such order as would be expedient and necessary to give effect to any order under the code or to prevent the abuse of process of any Court or otherwise to secure ends of justice. This Court is also empowered u/s 397(1) of the code, to call for the record of any inferior criminal court within its territorial jurisdiction in order to examine "correctness legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of the proceeding of such inferior court. That power, could be exercised on the application of any party aggrieved, on receipt of any information from any person whosoever or suo moto.

Learned Counsel Mr. Kar Bhowmik, appearing for the Petitioner submits that though the Petitioner is an aggrieved person of the aforementioned criminal case, yet he has no locus standi to move any revision petition u/s 397(1) of the criminal procedure code and as such, having found no alternative he filed this petition to invoke the inherent power of the court u/s 482 criminal Procedure Code.

In support of his contention the learned Counsel for the Petitioner placed reliance upon a decision of the Hon''ble Apex Court in Kishan Swaroop Vs. Govt. of NCT of Delhi, In that case the aggrieved party filed a revision petition before the Delhi High Court against the order of acquittal recorded by the learned Trial Court. At the admission stage, the Delhi High Court rejected the petition on the ground that without permission being accorded by the Public Prosecutor no such revision is maintainable at the instance of a private party. The aggrieved Petitioner approached the Hon''ble Apex Court with the Special Leave application and the Hon''ble Apex Court in para 3 of the judgment held that if the Code of Criminal Procedure does not at all authorise any private party to file a revision petition against an order of acquittal he cannot be provided with locus standi by according permission by the Public Prosecutor and, accordingly, the Hon''ble Apex Court quashed the impugned order of the High Court, meaning thereby a private party can maintain a revision petition without any permission of the Public Prosecutor. While deciding the said case the Hon''ble Apex Court relied upon a finding rendered by it in an earlier decision in K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, The operative portion of the Hon''ble Apex Court in Chinnaswamy Reddy (Supra) is reproduced below:

It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal, but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice.

The learned Counsel for the Petitioner Mr. M. Kar Bhowmik submits that unless there is some glaring defect in the procedure or there is a manifest error on a point of law causing mis-carriage of justice no criminal revision petition is maintainable at the instance of the private individual. On perusal of the statutory provision of Section 397(1) of the Criminal Procedure Code, I am of the considered opinion that the Revisional Court is empowered to examine the correctness, legality, propriety of any finding, sentence or order recorded or passed and as to the irregularity of the proceeding of any inferior Criminal Court within its territorial jurisdiction.

In view of the statutory provision embodied u/s 397(1) of the Criminal Procedure Code, in my considered opinion the afore quoted findings of the Hon''ble Supreme Court in Chinnaswamy Reddy, can''t be said to be exhaustive. Any party aggrieved, be he an injured or informant of a criminal case instituted on police report can prefer a revision if so advised against the order of acquittal. Neither any permission of the Public Prosecutor nor the leave of the court is required. Whether Court would exercise the power depends upon the merit of an individual case. But, so far locus standi is concerned the question no longer is res-integra.

In that view of the matter, the petition filed u/s 482 Code of Criminal Procedure instead of preferring any revision u/s 397 of the Code of Criminal Procedure is not maintainable.

However, for the ends of justice, this Court is empowered to convert a petition u/s 482 Code of Criminal Procedure into one u/s 397(1) of the Code of Criminal Procedure if other preconditions are fulfilled. In the present case the petition u/s 482 Code of Criminal Procedure cannot be converted into one u/s 397(1) of the Code of Criminal Procedure because it is time barred one.

In the result, the petition stands dismissed. No order as to costs.