Janardan Mallah alias Chanardar vs Pashupati Rai and Others

P.K. Jain, J.—Heard Sri M.D. Singh, learned Counsel for the revisionist and learned A.G.A. None represented opposite party No. 1.

Revisionist, Janardan Mallah alias Chanardan was prosecuted for offences under Sections 452, 323, 504 and 506, I.P.C. and was acquitted by the trial Magistrate. Complainant, Pashupati Rai filed Criminal Revision No. 133 of 1984 against the judgment and order of acquittal before Sessions Judge, Ghazipur, which was transferred to the IVth Addl. Sessions Judge, Ghazipur. The Addl. Sessions Judge, Ghazipur, allowed the revision vide judgment and order dated 28.7.84 setting aside the judgment and order of the trial court, acquitting the revisionist and remanded the case to the Chief Judicial Magistrate for decision afresh in accordance with law. The order of the revisional court has been challenged in this revision.

The sole ground on which the revision is pressed is that the Sessions Judge had no power to set aside the judgment and order of acquittal. In support of his contention, learned Counsel has relied upon the observations of the Hon''ble Supreme Court in Ramekbal Tiwary v. Madan Mohan Tiwary and Anr. 1967 ACC 265 (SC), wherein the Hon''ble Supreme Court made following observations:

It is true that the Additional Sessions Judge has no authority to set aside the acquittal of the Appellant under the provisions of Section 437, Code of Criminal Procedure.

That was a case decided by the Hon''ble Supreme Court before amendment of the Code of Criminal Procedure in the year 1973. Prior to the amendment, old Section 437, Code of Criminal Procedure empowered the Sessions Judge to direct a fresh inquiry and order the Magistrate to commit the case for trial to the Court of Session when the Sessions Judge was of the view that the case was exclusively triable by the Court of Session and that an accused person has been improperly discharged by the inferior court. u/s 438 of the Code of Criminal Procedure prior to its amendment in the year 1973, the Sessions Judge or District Magistrate, as the case may be, was required to make a report to the High Court with a recommendation that a sentence or an order be reversed or altered, if on examination of the record of the subordinate court he was satisfied that the order passed by the subordinate court was not in accordance with law. The law was changed after amendment of the Code of Criminal Procedure in the year 1973. In place of Sections 437 and 438(1) a new Section 399, Code of Criminal Procedure was substituted. Sub-clause (1) of Section 399, Code of Criminal Procedure (new) provides as follows:

Sessions Judge''s powers of revision.--(1) In the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under Sub-section (1) of Section 401.

Thus, the Sessions Judge was empowered to exercise all or any of the powers which could be exercised by the High Court under Sub-section (1) of Section 401, Code of Criminal Procedure u/s 401(1), Code of Criminal Procedure, the High Court is empowered to exercise any of the powers conferred on a Court of appeal by Sections 386, 389, 390 and 391, Code of Criminal Procedure u/s 386 (new), the appellate court has power to reverse an order of acquittal and direct that further inquiry be made, or that the accused may be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law. However, Sub-section (3) of Section 401, Code of Criminal Procedure restricts the revisional powers of the High Court in respect of an order of acquittal and specifically provides that nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. Thus, powers of an appellate court u/s 386, Code of Criminal Procedure can be exercised by the High Court as also the Sessions Judge subject to the restriction imposed by Sub-section (3) of Section 401, Code of Criminal Procedure.

In view of the amendment in the Code of Criminal Procedure in the year 1973, the Sessions Judge has been empowered to exercise the powers which may be exercised by the High Court. In this view of the matter the contention of the learned Counsel for the revisionist cannot be upheld.

The other case cited by the learned Counsel for the revisionist is Rakalapati Narayana Gajapathi Raju and Ors. v. Bonapalli Peda Appadu and Anr. 1975 ACC 281 (SC). This case also does not help the revisionist. In this case, the Supreme Court held that powers u/s 439(1), Code of Criminal Procedure (old) could be exercised subject to Sub-section (4) of Section 439, Code of Criminal Procedure under which the High Court was not authorised to convert the finding of acquittal into one of conviction while exercising revisional powers u/s 439, Code of Criminal Procedure. The Hon''ble Supreme Court, of course, observed that the revisional jurisdiction, when invoked by a private complainant against an order of acquittal ought not to be exercised lightly and that it can be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality or the prevention of a gross miscarriage of justice. It is not at all suggested in the present case that the revisional court exercised its powers lightly while setting aside the order of acquittal and remanding the case for retrial.

In my view there is no merit in this revision and the same is accordingly dismissed. Stay order dated 16.8.84 is vacated.