Milon Chandra and Others vs Shiva Prasad Chakravarty

P.G. Agarwal, J.—This revision is directed against the order dated 18-7-2001 passed by the learned Sessions Judge, Karimganj in Criminal Revision No. 67(3) of 1998.

The facts leading to the present Criminal Revision in brief is that one Siva Kumar Chakravarty, the informant lodged an F.I.R. alleging commission of offence u/s 342/325, I.P.C. G.R. Case No. 772 of 1994 was registered and after investigation police submitted charge-sheet u/s 342/323/34, I.P.C.

The case was tried by the Judicial Magistrate, Karimganj and order of acquittal was passed on 11-6-96 mainly on the ground that the prosecution has failed to adduce evidence. Thereafter, the informant feeling aggrieved filed a revision being Criminal Revision No. 67(3) of 1998 before the Sessions Judge, Karimganj and by the impugned order allowed the Criminal Revision setting aside the order of acquittal and remanded the matter back to the Chief Judicial Magistrate, Karimganj for fresh disposal in accordance with law. Hence, the present Revision.

We have heard Miss P. Chakravarty, learned counsel for the petitioner and Mr. I.A. Talukdar, learned Counsel for the opposite party. The order passed by the Sessions Judge, Karimganj has been challenged on the sole ground that the learned Sessions Judge had no jurisdiction and power to entertain the Revision petition against an order of acquittal as the above power is within the exclusive domain of the High Court.

Section 399. Cr.P.C. reads as follows :--

"399. 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.

(2) Where any proceeding by way of revision is commenced before a Sessions Judge under Sub-section (1), the provisions of Sub-sections (2), (4) and (5) of Section 401 shall, so far as may be. apply to such proceedings 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.

Changes......Section 399 in new.

Scope and application.-- The Section provides that (1) the Sessions Judge may exercise all or any of the powers exercisable by the High Court in revision u/s 401(1) (Sub-section (1)) : (2) the order of the Sessions Judge has been made final and no further revision by the High Court is permissible (Sub-section (3))."

The power of the High Court to entertain Revision has been provided u/s 401 Cr.P.C. Thus on reading of Section 389 Cr.P.C. together with Section 401 Cr.P.C. To find that the power of the Sessions Judge is a concurrent power along with the High Court and there is no limitation. The position has been made clear by Sub-clause (3) of Section 397(3) of the Code of Criminal Procedure, 1973 which provides that once a party looses his case before the Revisional Court, second revision by him before the High Court is barred.

On perusal of the order passed by the learned Chief Judicial. Magistrate, Karimganj. We find that this was an order of acquittal only, although the learned trial Magistrate has described the same as ''discharge''. The order of discharge'' was also on the sole ground that the witnesses could not be produced by the prosecution. The present petitioner before us had approached this Court earlier challenging the maintainability of the revision, but it was directed to raise the question before the Sessions Judge at the first instance. It is submitted that no revision lies against an order of acquittal when the Code provides for appeal by the State. The law on this point seems to be well settled that where the State has not preferred an appeal against an order of acquittal, a revision at the instance of the private party is maintainable ( Ayodhya Dube and Others Vs. Ram Sumer Singh,

Further, the learned counsel for the petitioner has referred to certain decision on the point, but those were all in respect of the old Cr.P.C. the position has changed after coming into force of the Criminal Procedure Code, 1973 which has given concurrent jurisdiction to the Sessions Court and the High Court in the matter of revision. There is no specific provisions excluding the Sessions Court''s power to entertain revision against an order of acquittal. We, therefore, hold that the Sessions Judge has jurisdiction to entertain revision against an order of acquittal subject to the general limitation in the matter as laid down by the Apex Court in Akalu Ahir and Others Vs. Ramdeo Ram, and K. Chinnaswamy Reddy Vs. State of Andhra Pradesh,

In the instant case the learned Sessions Judge, Karimganj has remanded the matter back to the Chief Judicial Magistrate for a fresh disposal in accordance with law. The Sessions Judge, Karimganj has thus not converted the findings of acquittal into one of conviction.

In view of the above, we find no merit in this revision and accordingly the revision petition is dismissed.

Send down the case records to the Chief Judicial Magistrate, Karimganj to proceed with the trial in accordance with law.