Manickam and 12 Others vs Madharshah and State

K.M. Natarajan, J.—This revision is directed against the order passed by the learned Principal Sessions Judge, Madurai Division setting aside the order of acquittal and directing fresh trial in the case.

The brief facts which are necessary for the disposal of this petition can be stated as follows:

The case of the R1 was that on 1.6.1978 at about 5 p.m., he was in his house in Oonchampatti. At that time, the 8th Petitioner took him to the common well under the pretext that he was required by the Tahsildar. The Tahsildar and A1 to A13 (Petitioners herein) were there. Tahsildar recorded the statement of R1. After the Tahsildar left, Petitioners quarrelled with R1. Afraid of the Petitioners, R1 returned to his house. At about 6 p.m. while he was proceeding to Theni along with D.W.2 and P.W.4 near Karuppiah Chettiar''s house, all the Petitioners way laid him and questioned him as to how he can petition against them to the authorities. At that time, A2 instigated the other accused to beat P.W.1 (R1 herein). A3 tore R1''s shirt. A2 to A13 pushed R1 down and he fell down with face upwards. At that time Al attempted to stab R1 with ''soori kathi'' which was warded off by R1 and he sustained injury on the left index finger. Again Al stabled R1 and he sustained injury on the outer aspect of the left hand. A4 to A6 beat R1 with sticks. As a result of which, R1 sustained injuries on his left elbow, right ring finger, and right elbow. A7 to A13 beat him with hands. When he wriggled out and attempted to raise, A4 snatched Rs. 200/- from his shirt pocket and also a Hendry Sandoz wrist watch from his wrist. A1 again attempted to stab him and it fell on D.W.2 who came to separate him and he sustained injury on the left side of his abdomen. Al again aimed another blow and it hit A5 on his left eyebrow. P.W.4 Lakshmanan, Perumal, Karunakannan, P.W.2 and others raised hue and cry. The accused thereupon ran away. At about 7.30 p.m. he went to the Theni Police Station reported the matter to the Assistant Sub Inspector of Police. His signature was taken in a blank paper. His blood stained shirt, dhoti and banian were seized by the Assistant Sub Inspector. On 3.6.1978, he was arrested by the Assistant Sub Inspector of Police alleging that he had stabbed A5 and D.W.2 with a knife. Thereupon, he was produced before the Judicial Second Class Magistrate and he also narrated the incident to the Magistrate. Thereupon, he was sent to the doctor for treatment. R.W.3, the Medical Officer examined on 3.6.1978 at about 2 p.m. and found upon him 5 injuries and issued Ex.P.3 certificate, according to him, all the injuries are simple in nature. It is stated that on 1.6.1978 at about 8 p.m. A5 gave a statement to the Sub Inspector of Police, Theni Police Station. On the basis of the same, Cr. No. 440 of 1978 was registered u/s 324 , I.P.C. Ex.D1 is the first information report. Ex.D2 is the remand report. Ex.D3 is the statement given by P.W.1 before the Magistrate. Ex.D4 is the wound certificate issued for A5. Ex.D5 is the wound certificate given for D.W.2. Since police did not take action, P.W.1 (R1 herein) filed a private complaint on 19.6.1978 and those complaints were dismissed twice and on three occasions, revisions were filed and finally the complaint case instituted by R1 the complainant was taken on file and was committed to Sessions for trial since the offence complained of was u/s 395, I.P.C. triable by a court of Sessions. Since it was committed, the Public Prosecutor in view of the provisions of Section 225, Code of Criminal Procedure conducted the prosecution.

On the side of the prosecution, complainant examined himself as P.W.1. Eye witnesses P.W.2 and P.W.4 were examined. P.W.2 was treated as hostile. The doctor who treated P.W.1 was examined as P.W.3.

The plea of the accused was that the occurrence did not take place as stated by R1 but only in the manner as spoken to by A5 and in support of the same, they examined D.W.s 1 to 5 and also filed Ex. D1 to Ex.D7. The learned trial Judge, for the reasons stated in his judgment came to the conclusion that the prosecution has not proved the guilt of any of the accused and consequently acquitted them. The case filed against R1 on Police charge sheet on the complaint given by A5 also ended in acquittal on the ground that the injuries on A1 (accused in that case) was not explained. Aggrieved by the acquittal of the accused in the private complaint case, Criminal Revision Petition No. 1 of 1987 was filed before the Principal Sessions Judge, Madurai under Ss. 397, 399 read with Section 401 of the Code of Criminal Procedure. The learned Principal Sessions Judge set aside the order of acquittal and directed fresh enquiry. Aggrieved by the same, this revision is filed.

The learned Senior Counsel appearing for the revision Petitioners/accused, mainly submitted that the revision before the learned Sessions Judge itself is not maintainable as in the instant case admittedly, the case was instituted on a private complaint filed by the first Respondent and upon the basis of the same committal was made and the said case ended in acquittal. The remedy for R1 namely, the complainant was only to file an appeal u/s 378(4), Code of Criminal Procedure and not a revision before the Sessions Court and further in view of Section 401(4), Code of Criminal Procedure which is also applicable to the Sessions Court u/s 397, Code of Criminal Procedure when there is right to appeal, no revision can be entertained. The learned Principal Sessions Judge on a wrong proposition that once a case has been committed and since it was conducted by the Public Prosecutor it becomes a Police case and it is no longer a case instituted upon a private complaint and as such, the revision is maintainable is not sustainable in law and the wrong approach led to the miscarriage of justice in this case. Even on facts, learned Counsel submitted that there is absolutely no acceptable evidence for convicting any of these Petitioners and the order of acquittal is supported by convincing reasons and there is absolutely nothing to interfere and the learned Sessions Judge is not justified in setting aside the order of acquittal and directing fresh enquiry.

R1 though served, did not appear. Learned Government Advocate was also heard. He also concurred with the learned Counsel for the Petitioners and submitted that the revision ought to have been entertained and the order passed by the learned Sessions Judge is not sustainable in law.

Now let us consider how far the learned Sessions Judge is right in entertaining revision against the order of acquittal passed by the learned Assistant Sessions Judge. Admittedly, the case in question is one which was instituted by R1 on a private complaint and the said private complaint though it was dismissed on more than two occasions and it went up for revision up to this Court and later it was taken on file and thereupon it was committed. On committal, it was tried by the learned Assistant Sessions Judge. After recording the evidence on behalf of both parties, and after full trial, the learned Assistant Sessions Judge after taking into consideration, the oral and documentary evidence came to the conclusion that prosecution had not proved the guilt of the accused and consequently acquitted them. Section 378(4), Code of Criminal Procedure reads as follows:

If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

As per the above Section, the remedy for R1 is only to prefer an appeal before this Court against the order of acquittal passed by the learned Assistant Sessions Judge.

S. 401(4), Cr.P.C. reads as follows:

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.

As per the above section, when there is right of appeal, no revision can be entertained. Section 399, Code of Criminal Procedure reads 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-S.(1) of Section 401.

(2) Where any proceeding by way of revision is commenced before a Sessions Judge under sub-S.(1), the provisions of sub-Ss. (2), (3) (4) and (5) of Section 401 shall, so far as may be, apply to such proceeding and references in the said Sub-sections to the High Court shall be construed as references to the Sessions Judge.

(3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court.

The power under S. 401, Code of Criminal Procedure and the power u/s 399, Code of Criminal Procedure are concurrent powers of revision and Section 401(4), Code of Criminal Procedure is applicable to the Sessions Judge also. Now what is meant by a case instituted on the complaint has been considered by the Apex Court under the Old Section 417(3), Code of Criminal Procedure which corresponds to the New Section 378 (4), Code of Criminal Procedure Section 417(3), Code of Criminal Procedure under the Old Code reads as follows:

If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

In Bhimappa Basappa Bhu Sannavar Vs. Laxman Shivarayappa Samagouda and Others, Their Lordships of the Supreme Court considered the meaning of the word "instituted" in paragraph 10 which reads as follows:

What is meant by "instituted" may next be explained. There are three different ways in which cognizance is taken by Magistrates of offences. This is stated in Section 190 of the Code. They are:

(a) upon receiving a complaint of the facts which constitute an offence;

(b) upon a report by any police officer; and (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed.

The third Sub-section, therefore, obviously refers to a case in which cognizance is taken upon a complaint of facts constituting an offence. The word ''complaint'' has been defined in Section 4(1)(h) and means an allegation made orally or in writing to a Magistrate, with a view to his taking action, under the Code, that some person, whether known or unknown, has committed an offence, but it does not include the report of a police-officer. Ultimately, at paragraph 18 it was held as follows:

Now there can be no manner of doubt that one of the cases was instituted on the report of a police officer and the other on the complaint of the complainant. There can be no question of merger because the identity of the two cases is maintained right up to the end of the Sessions trial. The case of Bhimappa proceeded on its own number and although evidence was let in both the cases together, the acquittal was recorded in each of the two cases. The police did not present a charge-sheet against Mallappa and the trial of Mallappa can be said to be in the other case and not in the case filed by the was entitled to move the High Court for special leave in his own case. The order saying That he had no standing cannot, therefore, be sustained.

That was a case where the Police instituted charge-sheet against two of the accused but failed to file a charge-sheet against the third accused and a private complaint was filed against the third accused. The case which was taken on file on the police charge-sheet and the case instituted upon the private complaint were tried together by the Sessions Judge and all the accused were acquitted in both the cases. The complainant in the private complaint filed revision which was rejected. Again, he filed an appeal. His appeal was also dismissed on the ground that he had no locus standi and that the State alone has to file an appeal and in this connection, it was held that identity of the two cases is maintained right up to the end of the Sessions trial and it is only in that view, it was held that he had a right of appeal u/s 417(3) of the Old Code which is equivalent to Section 378(4) under the New Code, The only reasons given by the learned Sessions Judge was that the case was conducted after committal by the Public Prosecutor and hence after committal, it has to be treated as a police case. The said view is erroneous. As per Section 225, Code of Criminal Procedure in every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor. That does not mean that the case also automatically becomes a case instituted upon a police charge-sheet. In Krishnamoorthi and Elumalai, in re (D.B.- 1983 L.W. (Crl.) 166), it is held that a revision against the order of acquittal passed in a case instituted upon a private complaint is not maintainable. The only reasons given by the learned Sessions Judge for not accepting the said decision as already referred to is that the trial was conducted by the Public Prosecutor and the case automatically becomes one instituted upon a Police Report. In view of the ratio laid down by the Supreme Court, the said reasoning of the Sessions Judge is not sustainable. Thus, the learned Sessions Judge had no jurisdiction to entertain the revision. Consequently, the impugned order setting aside the order of the Assistant Sessions Judge and directing fresh enquiry is not sustainable and on that ground, the revision has to be allowed.

Even on merits, this Courts finds that the learned trial Judge has given convincing reasons for acquitting the Petitioners herein and he has relied on the earlier statement Ex.D3 given by R1 at the time of remand in the counter case while appreciating the evidence of P.W.1 (R1) and came to the conclusion, that the said statement completely contradicts his version in the witness box and further, the medical evidence adduced through P.W.3 did not support his ocular testimony with regard to the attack on P.W.1 with reference to the weapon as well as the manner and the version of the Medical Officer probabilises the defence version. The conduct of P.W.1 namely that he was absconding for more than three days from the scene of occurrence was taken note of. P.W.2 one of the eye-witnesses turned hostile and the evidence of P.W.4 did not advance the case of the prosecution. The acquittal of the accused in the counter case was only on a technical ground namely, that the injury on P.W.1, who was accused in that case was not explained and that cannot enure to the benefit of the complainant namely R1 in this case. The learned Assistant Sessions Judge on careful consideration of the evidence of the defence witnesses came to the conclusion that their evidence is more probable and acceptable and especially the evidence of D.W.2 whose presence is accepted by P.W.1 and he is an injured witnesses. The reasons given by the learned Sessions Judge for not accepting those reasons are not tenable both on law and on facts. We find that there is no case for interference on merits also with the order of acquittal. On the other hand, the learned trial Judge is perfectly right in recording acquittal. Thus, both on grounds of merit and maintainability, this Court decides that the revision has to be allowed.

In the result, the revision is allowed. The order passed by the learned Principal Sessions Judge is set aside and the order of acquittal passed by the trial Judge is hereby restored.