Shri Bharatkumar Jangonda Patil and Others vs Shri Annaso Surgonda Patil and Another

S.S. Parkar, J.—By this writ petition the petitioners who were facing prosecution in a private complaint under Sections 341, 342, 352, 504, 506 and 448 read with Section 34 of IPC have challenged the order dated 22nd February, 1991 passed by the learned Sessions Judge, Sangli whereby the order of acquittal recorded by the Additional Sessions Judge in Criminal Appeal No. 51 of 1987 was set aside.

The brief facts leading to the present writ petition are as follows :

The petitioners were charged for offences under Sections 323, 352, 448, 504 read with Section 34 of IPC in the Court of JMFC, Miraj in Regular Criminal Case No. 239 of 1986 and Summary Criminal Case No. 1457 of 1985. Alter the evidence was led, the 2nd Jt. Civil Judge and JMFC, Miraj by his judgment and order dated 31st January, 1987 was pleased to convict the petitioners accused under Sections 323, 352 and 448 of IPC and sentenced them to pay a fine of Rs. 500/- each in default to suffer RJ for 15 days and acquitted them under other offences with which they were charged.

Against the said order of conviction the petitioners filed Criminal Appeal No. 15 of 1987 which was heard by the Additional Sessions Judge, Sangli who, after considering the facts and hearing the Advocates for the appellants and Additional Public Prosecutor for the Respondent-State, set aside the order of conviction and recorded the order of acquittal by his judgment and order dated 27th May, 1988. In the said Appeal the State of Maharashtra was arraigned as Respondent No. 1 while the private complainant was arraigned as Respondent No. 2. It appears that aggrieved by the said order of acquittal the private complainant filed an application dated 2nd June, 1988 for fresh trial and/or hearing in the said appeal on the ground that he was not served in the matter. Normally when the appeal was filed in a private complaint against the order of conviction, the private complainant ought to have been served. In this case no doubt the private complainant was made Respondent No. 2, but according to him he was absent as he was not served in the matter. The Additional Sessions Judge after hearing the appeal on merits recorded the finding of acquittal. The learned Sessions Judge, Sangli heard this application for setting aside the order of acquittal made by the private complainant on 22nd February, 1991 and set aside the judgment and order of acquittal recorded by the Additional Sessions Judge and restored Criminal Appeal No. 15 of 1987 to the file for disposal according to law which is the order impugned in this writ petition.

Mr. Pradhan, learned Counsel appearing on behalf of the petitioners contended that the Sessions Judge had no power of either review or setting aside the order of acquittal recorded by the Additional Sessions Judge after hearing the matter on merits. It is his contention that the Sessions Judge is not superior to Additional Sessions Judge but both are equal so far as judicial powers are concerned. In this connection he relied on the provisions of Sections 6 and 9 of the Cr.P.C. providing for various classes of Criminal Courts. He also relies on the appeal provisions of the Cr.P.C. under which the appeal has to be preferred to the High Court against the order of conviction and/or acquittal recorded whether by Sessions Judge or Additional Sessions Judge. In support of his contention that the Sessions Court has got no power of review Mr. Pradhan relies on the decision of the Supreme Court in the case of Simrikhia v. Dolley Mukherjee in which it was held that even the High Court has got no power of review once the judgment is delivered in the matter. He also relies on Section 362 of the Cr.P.C. under which once the Judgment is delivered the same cannot be altered except to correct a clerical or arithmetical error.

I find substance in the above contentions. Normally the private complainant on whose complaint the petitioners were convicted ought to have been made party Respondent in appeal which was done but he was not served 4n the matter. The Additional Sessions Judge having decided the matter on merits after considering the evidence on record, the same could not have been set aside except by the higher Court that is this Court, in appeal against the said order which could have been filed under the provisions of Criminal Procedure Code. There is no doubt that the application was preferred by the private complainant on 2nd June, 1988, I e. within a week''s time after the order of acquittal dated 27th May, 1988 was recorded. That order of acquittal had become final and the writ had been issued. There is no provision under Cr.P.C. under which the Sessions Judge, who is equal to the Additional Sessions Judge so far as judicial powers are concerned, could review or set aside the order passed by the Additional Sessions Judge on merits. There is no doubt that in judicial hierarchy a Sessions Judge and an Additional Sessions Judge are having equal powers. There is no provision under Criminal Procedure Code for setting aside an ex parte order either. The only remedy available to the private complainant was to file an appeal against the order of acquittal in this Court. The impugned order dated 22nd February, 1991 passed by the Sessions Court setting aside the order of acquittal recorded by the Additional Sessions Judge and restoring the appeal for rehearing or disposal again on merits after a period of more than 2 and 1/2 years is, therefore, in my view, illegal and cannot be sustained in law.

In the result I allow this writ petition and quash and set aside the impugned order dated 22nd June, 1991 passed by the learned Sessions Judge, Sangli in Criminal Misc. Application No. 184 of 1988. Rule is made absolute accordingly.