In Re : Krishnamoorthy and Another

Natarajan, J.—Criminal R.C. Nos. 31 and 32 of 1979 arise out of two references made by the Sessions Judge of Salem, u/s 395(2),

Cr.P.C. While hearing Cri.R.C. No. 31 of 1979, Singaravelu, J. doubted the correctness of the ratio laid down in Ramnad District Co-operative

Supply and Marketing Society v. V. Chandran (1982 Mad LW (Cri) 20) and Ramu Ammal v. E. Venkatachalam (Cri.R.C. No. 26/1980 of this

Court - Order dated November 17, 1981), and therefore deemed it expedient to refer the matter to a Division Bench and that is how Crl.R.C.

No. 31 of 1979 came to be posted before us. Since Crl.R.C. No. 32 of 1979 is an allied revision, it has also come to be posted before us for

disposal.

Crl.R.C. No. 31 of 1979 relates to a private complaint taken on file as C.C. No. 455 of 1978 by the Judicial Second Class Magistrate,

Namakkal, for an offence u/s 323, I.P.C. After trial, the Magistrate acquitted the accused. The complainant preferred a revision to the Sessions

Judge u/s 399, Cr.P.C. and prayed for the setting aside of the order of acquittal. The accused and the Public Prosecutor questioned the

maintainability of the revision petition before the Sessions Judge. The complainant however contended that the powers of revision of the Sessions

Judge u/s 399 were co-extensive with those of the High Court under S. 401, Cr.P.C. and as such, the revision was maintainable. Without

rendering a finding on the debate, the Sessions Judge has made a reference to the High Court on the ground that the controversy is not covered by

any reported decision.

Crl.R.C. 32 of 1979 relates to C.C. No. 1502 of 1977 on the file of the Judicial Second Class Magistrate, Omalur. The case was taken on file

on a charge-sheet filed by the police against seven persons for offences punishable under Sections 147, 341, 323 and 352, I.P.C. The Magistrate,

after trial, acquitted all the accused. Aggrieved by the judgment of acquittal, P.W. 1, the injured person, preferred a revision to the Sessions Judge.

There also, the question arose whether a revision would lie to the Sessions Judge and the Sessions Judge has referred the matter to the High Court

for clarification.

When Crl.R.C. No. 31 of 1979 was taken up by Singaravelu, J., the decisions of M. A. Sathar Sayeed, J., in Ramnad District Co-operative

Supply and Marketing Society v. V. Chandran, 1982 M LW `20 and Ramu Ammal v. E. Venkata-chalam, (Crl.R.C. No. 26/1980 of this Court

Order dated November 17, 1981), were cited in justification of the petitioner filing a revision to the Sessions Judge against the acquittal of the

accused. In the first case cited, the District Co-operative Supply and Marketing Society, Ramanathapuram, which was the complainant, filed a

revision before the Sessions Judge, Madurai, praying for enhancement of sentence to the accused. The Sessions Judge refused to entertain the

revision stating that only the High Court has jurisdiction to enhance the sentence. The Society then filed Cri.R.C. Nos. 684 and 685 of 1977. M.

A. Sathar Sayeed, J., held that since the State has no part to play in the proceedings, no appeal would lie u/s 377, Cr.P.C., for enhancement of the

sentence and as such, the only remedy open to the complainant was to move the Sessions Court, and not the High Court, for enhancement of the

sentence.

In the second case cited, the Sessions Judge entertained a revision filed by a complainant against an order of acquittal and this was challenged

by the accused before this Court. M. A. Sathar Sayeed, J., applied the ratio laid down in Ramnad District Co-operative Supply and Marketing

Society v. V. Chandran 1982 M LW 20 and held that the Sessions Judge had the requisite power to entertain the revision against acquittal and

dismissed the revision.

Singaravelu, J., is of the view that in the light of the express terms contained in Section 377, Cr.P.C., the right to file an appeal has been

conferred exclusively on the State Government or the Central Government as the case may be, and as such, it is not open to a complainant to file a

revision against inadequacy of sentence and seek a relief which has been denied to him u/s 377, Cr.P.C. He has further held that the Legislature

has deliberately restricted the right of appeal against inadequacy of the sentence only to the State Government and the Central Government since

questions relating to adequacy of sentence are matters of public concern and, secondly, the Courts are not to be used as forums by private citizens

for wreaking vengeance against their adversaries by clamouring for enhanced punishment. On the basis of such reasoning, the learned Judge has

disagreed with the ruling of M. A. Sathar Sayeed, J., in Ramnad District Co-operative Supply and Marketing Society v. V. Chandran 1982 MLW

20.

In so far as the filing of a revision petition against an order of acquittal is concerned, Singaravelu, J., has taken the view that since the specific

provision in the Code, viz., S. 378, entitles a complainant to file an appeal to the High Court against acquittal, the complainant must be deemed to

be precluded in law from moving the Sessions Court under S. 399, Cr.P.C. for setting aside an order of acquittal. Hence the learned single Judge

has differed from the view taken by M. A. Sathar Sayeed, J., in Ramu Ammal v. E. Venkatachalam (Crl.R.C. 26/1980 - Order dated November

17, 1981), also.

In order to set at rest the conflict of views in the matter, Singaravelu, J., has referred the cases to a Division Bench.

We will first take up for consideration the question whether a complainant is entitled to file an appeal or a revision for enhancement of sentence.

Under the old Code of Criminal Procedure, there was no provision for either the State or a complainant to prefer an appeal for enhancement of

sentences. However, the High Court, while exercising its revisional power under S. 439 (old Code), was vested with discretion to enhance the

sentences passed by the subordinate Courts, after affording, to the accused, an opportunity of being heard. The Law Commission and the Joint

Committee of Parliament were of the view that the Government should have a right of appeal whenever it considered that an accused person had

been let off with too light or inadequate a sentence as would affect public interest. Hence Section 377 was newly introduced in the new Code,

giving to the State Government a right of appeal against inadequate sentences and, under sub-section (2), the right of appeal has been given to the

Central Government also in appropriate cases. It is significant to note that a right to file an appeal for enhancement of sentence has not been given

to a private complainant. It is also apposite to mention here two significant features. The first is that the power to entertain an appeal u/s 377 has

been conferred only on the High Court. The second is that the Government has been empowered to seek enhancement of sentence ""in any case of

conviction on a trial held by any Court other than the High Court"". Therefore, even as against the sentence awarded in a case of private complaint,

the State Government can direct the Public Prosecutor to file an appeal for enhancement of sentence. The obvious reason for empowering the High

Court alone to entertain an appeal for enhancement of sentence is that the punishment awarded by a competent Court should not be disturbed

except by the highest Court in the State and, furthermore, certain uniform standards in matters of sentence have to be adopted and this can be

done only if the High Court alone exercises the power to enhance the sentence. The right of a complainant to bring an offender to justice should

stop with his securing a conviction and it should not extend to having a say in the matter of sentence, for, in that case, the complainant is likely to

overstep his limits and implore the Court to impose a harsh and severe sentence on the accused so that the complainant''s private vengeance is

wreaked in full measure.

In so far as an appeal against acquittal is concerned, S. 378, Cr.P.C., lays down the law. The section is comprised of six sub-sections. Sub-

section (1) deals with the right of the State Government (subject to the provisions contained in sub-sections (2), (3), and (5)) to direct the Public

Prosecutor, in any case, to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than the

High Court. The wording of the subsection is such that not only in cases instituted on police reports, but even in cases instituted on private

complaints, the State has a right to direct the Public Prosecutor to present an appeal to the High Court. Sub-section (2) confers a right of appeal

against acquittal on the Central Government in respect of cases investigated by the Delhi Special Police Establishment constituted under the Delhi

Special Police Establishment Act, 1946 or by any other agency empowered to make investigation into an offence under any Central Act other than

the Code. Sub-section (3) lays down that no appeal under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High

Court. Sub-section (4) provides that if an order of acquittal is passed in any case instituted upon a complaint, the complainant can move the High

Court for grant of special leave to file an appeal against acquittal and if the High Court grants special leave, he can file such an appeal. Sub-section

(5) sets out the limitation period within which appeals against acquittal have to be filed. Sub-section (6) lays down that if a private complainant had

moved the High Court under sub-section (4) and failed to obtain special leave to file an appeal, then the State Government or the Central

Government cannot seek the permission of the High Court to file an appeal under sub-section (1) or sub-section (2) as the case may be. What is

of significance in this section also is that a right to entertain an appeal against acquittal is conferred only on the High Court. In Thadi Narayana Vs.

The State of Andhra Pradesh, , it was held as follows :-

The High Court alone possesses the power of setting aside an order of acquittal either under S. 386(a) (S. 423(a) old) read with S. 378 (S. 417

old) or S. 401 (S. 439 old), Cr.P.C. In other words, Courts subordinate to the High Court have not been vested with powers to entertain appeals

against acquittal or to set aside in revision an order of acquittal. This position admits of no doubt.

In State of U.P. Vs. Maiku Baldeo Chamar, , it has been held as follows :-

On a reading of sub-sections (1), (3) and (5) of S. 417, Cr.P.C. together, it is very clear that the State Government is given a right to appeal to

the High Court against any and every order of acquittal passed by a subordinate Court, regardless whether the acquittal has followed a police

prosecution or in a case instituted upon a complaint, except where the acquittal has resulted in a case instituted upon a complaint and the special

leave to file an appeal, as required by sub-section (3) aforesaid, has already been refused by the High Court. The State Government''s right to file

an appeal u/s 417(1) is fettered in such a case only and in no other.

It is in the light of this position, the nature and scope of Sections 399 and 401, Criminal P.C., have to be construed.

When the Code was amended, the re-visional powers of the Sessions Judge were increased with a view to relieve some of the congestion of

work in the High Courts. Consequently, S. 399 was provided to enable the Sessions Judge to ""exercise all or any of the powers which may be

exercised by the High Court under sub-section (1) of S. 401"". In order to construe these words, we must necessarily refer to sub-section (1) of S.

401 and the powers exercisable by the High Court under that sub-section :-

Sub-section (1) of S. 401 reads as follows : ""In the 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 S. 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.

As per this sub-section, the High Court may, in its discretion, exercise any of the powers conferred on a Court of appeal by S. 386 (powers of the

appellate Court), S. 389 (suspension of sentence pending appeal), S. 390 (arrest of accused in appeal against acquittal), S. 391 (appellate Court

may take further evidence or direct it to be taken) and S. 307 (power to direct tender of pardon). Therefore, it follows that the powers of revision

exercisable by a High Court u/s 401(1) should be subject to the limitations contained in Sections 386, 389, 390, 391 and 307 themselves. Section

386 deals with the powers of the appellate Court. It makes reference to appeals against convictions as well as to appeals under Sections 377 and

The appeals under these two sections, as already stated, can be preferred only to the High Court. Under S. 390, the High Court, while

entertaining an appeal against acquittal, is entitled to issue a warrant directing the arrest of the accused. The Sessions Court has been excluded in

Sections 377, 378 and 390 and it therefore follows that it is not entitled to receive appeals filed for enhancement of sentences or for setting aside

an order of acquittal or for directing the arrest of an accused person against whom an appeal against acquittal has been filed.

The High Court is entitled to use its powers of revision either suo motu or on being moved by an aggrieved party. At first sight, the High

Court''s powers of revision may appear to be co-extensive with its appellate powers, but a careful scrutiny of the matter will show that the actual

position is perceptibly different. In so far as the exercise of its suo motu powers of revision are concerned, they are bound only by certain

restrictions. But, while dealing with revisions filed by aggrieved parties, the limitations on the exercise of power are greater. For example, we may

refer to the observation of the Supreme Court in Eknath Shankarrao Mukkawar Vs. State of Maharashtra, , that the High Court''s power to

enhance the sentence in an appropriate case by exercising its suo motu power of revision is still extant under S. 379 read with S. 401 of the

present Code, inasmuch as the High Court can itself call for the record of proceedings of any inferior Criminal Court under its jurisdiction, and the

provision of S. 401(4), which is a bar to a party who does not appeal when an appeal lies, but applies in revision, does not stand in the way of the

High Court''s exercise of revisional powers, suo motu, which continues, as before, in the new Code. The provisions u/s 401, read with S. 386(c)

(iii), Cr.P.C. are clearly supplemental to those under S. 377 : See Nadir Khan Vs. The State (Delhi Administration), . In the first place, sub-section

(3) of S. 402 lays down that nothing in that section shall be deemed to authorise a High Court to convert a finding of acquittal into one of

conviction. This is in contrast with the High Court''s power u/s 386(a), viz., that in an appeal from an order of acquittal the High Court can reverse

the order and either direct that further enquiry be made or that the accused be retried or committed for trial as the case may be or even find him

guilty and pass sentence on him according to law. Then, sub-section (4) contains a prohibition viz., that if under the 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. It therefore follows

that if a right of appeal is available to a party under the Code and he has not availed of that right, the High Court cannot entertain a revision filed by

the defaulting party. Sub-section (5) contains an exception to sub-section (4) and lays down that if a party had bona fide committed a mistake in

filing a revision instead of an appeal and there would be failure of justice if the revision is dismissed on account of the procedural error, then the

High Court may treat the application for revision as a petition of appeal and deal with the same accordingly. Thus, it may be seen that even the

High Court''s powers of revision are not on par with its appellate powers.

In addition to the restrictions contained in S. 401, the High Court''s exercise of its revisional powers are subject to further restrictions contained

in Sections 377 and 378 themselves. We have already referred to the restricted right of interference in revisions relating to acquittal of a person,

viz. (i) that a finding of acquittal cannot be converted into one of conviction and (ii) a party failing to avail the right of filing an appeal against

acquittal cannot file a revision to challenge an acquittal. Then, in the matter of enhancement of sentence, the High Court''s powers of revision are

circumscribed by the terms of S. 377 itself. As per that section, it is only the State Government under sub-section (1), or in appropriate cases the

Central Government under sub-section (2), that can file an appeal for enhancement of sentence. Such being the case it can never be said that the

High Court can entertain a revision at the instance of a private party for enhancement of sentence. To hold otherwise would result in transgressing

the parameters of S. 377, Cr.P.C. set out by Parliament. Similarly, revisions relating to acquittals have to be dealt with within the parameters set

out in Section 378 of the Code.

It is in the light of this position, the extended powers of revision now made available to Sessions Judges under S. 399 have to be determined.

Though, in sub-section (1) of S. 399 it is stated that ""the Sessions Judge may exercise all or any of the powers which may be exercised by the High

Court under sub-section (1) of S. 401"", the Sessions Judge can exercise only such of those powers which can be exercised by the High Court

itself in exercise of its revisional powers. Since the High Court itself cannot entertain an appeal by anyone except the State Government or the

Central Government for enhancement of sentence, it follows that the High Court, and more so the Sessions Judge, cannot entertain a revision for

enhancement of sentence at the instance of a private party. Then, as regards revisions against acquittals, the powers of the High Court will be

governed by the limitations contained in Section 378 and sub-section (4) of S. 401. Under S. 378 the State Government (sub-section (1)), the

Central Government (sub-section (2)) and a complainant in the case of a private complaint (sub-section (4)) are entitled to file an appeal against

acquittal in relevant cases. But, such right of appeal is not an automatic one. It is subject to the High Court granting leave to the concerned

appellant to file an appeal. Furthermore, under sub-section (4) of S. 401, a revision is precluded where the Code has permitted the filing of an

appeal but the party to whom the right is granted fails to avail of it. The limitation is of course subject to the exception contained in sub-section (5)

which deals with hard cases.

Therefore, it follows that a party cannot file a revision against an order of acquittal when he has failed to avail the right of appeal granted to him.

The only two classes of cases where a revision can be filed by a private party are : (i) where there is an order of discharge and (ii) where there is

an acquittal in a case instituted on police report. This right can be exercised irrespective of the fact whether the State files an appeal under S. 378

or not. In such a case, the revisional Court can reverse the order and direct further enquiry to be made or direct the accused to be retried or

committed for trial as the case may be.

In the light of this conclusion, it follows that the ratio laid down in Ramnad District Co-operative Supply and Marketing Society v. V.

Chandran 1982 MLW 20, cannot be upheld. It may be remembered that in that case, a private complainant had moved the Sessions Judge u/s

399, Cr.P.C., for enhancement of the sentence awarded to the accused. The revision was held sustainable by this Court in the view that since the

State had no part to play in the proceeding, the complainant did not stand precluded from seeking enhancement of sentence. The view is not

correct, because S. 377, Cr.P.C., has conferred a right of appeal for enhancement of sentence only on the State and Central Governments and, as

already pointed out, it is open to the State Government to file an appeal for enhancement of sentence even in cases instituted on private complaints.

In Ramu Ammal v. E. Venkatachalam (Crl.R.C. 26/1980 - Order dated November 17, 1981), the ratio laid down is that it is open to a

complainant to file a revision before the Sessions Judge against an order of acquittal. This is clearly contrary to S. 378 and sub-section (4) of S.

The complainant has been granted a right of appeal under sub-section (4) of S. 378 and if he has failed to avail of that right, sub-section (4)

of S. 401 precludes him from filing a revision. Singaravelu, J., was therefore right in disagreeing with the ratio laid down in Ramnad District Co-

operative Supply and Marketing Society v. V. Chandran 1982 M LW 20 and Ramu Ammal v. E. Venkatachalam (Crl.R.C. 26/1980 - Order

dated November 17, 1981), and making a reference to the Bench. Those decisions will therefore stand overruled.

Coming, now to the two cases which came up for consideration before Singaravelu, J., Crl.R.C. No. 31 of 1979 is a case where a

complainant seeks revision of an order of acquittal. Since a right of appeal is available to the complainant u/s 378(4) and since a revision will not lie

when a party fails to avail the right of appeal, it follows that the revision petition is liable to be dismissed as not maintainable. In the other case, viz.,

Crl.R.C. No. 32 of 1979, the Magistrate had taken cognizance of the case on a police report and had eventually acquitted the accused. In that

case, the State could have filed an appeal against acquittal, but it had not done so. The aggrieved victim, P.W. 1, has filed the revision to the

Sessions Judge. As it is a police case, the revision petitioner does not have a right of appeal. Hence he is entitled to file a revision. The Sessions

Judge is competent to entertain the revision and if he is satisfied that the acquittal is not in accordance with law, he can order retrial.

The references will stand answered accordingly.

Order accordingly.