Joseph Stephen vs Santhanasamy

Joseph Stephen vs Santhanasamy - Supreme Court Decision 2022

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 90-93 OF 2022

Joseph Stephen and others …Appellants

Versus

Santhanasamy and others …Respondents

J U D G M E N T

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned common

judgment and order dated 14.05.2020 passed by the High Court of

Judicature at Madras, Madurai Bench in Criminal Revision Application

Nos. 323 to 326 of 2013, by which the High Court, in exercise of its

revisional jurisdiction under Section 401 Cr.P.C., has set aside the order

of acquittal passed by the first appellate Court and has convicted the

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accused, original accused nos. 6 to 8 have preferred the present

appeals.

2. The facts leading to the present appeals in a nutshell are as under:

That all the original accused were charged and tried for the

offences punishable under Sections 147, 148, 324, 326, 307, 506(ii) r/w

section 149 IPC. That the Chief Judicial Magistrate, Tiruchirapalli, by

judgment dated 28.09.2012, convicted the accused under the aforesaid

offences except Sections 307 and 506(ii) IPC and thereby acquitted the

accused under Sections 307 and 506(ii) IPC.

2.1 Feeling aggrieved and dissatisfied with the judgment and order of

conviction passed by the Chief Judicial Magistrate, Tiruchirapalli, the

accused preferred Criminal Appeal No. 92/2012 in the Court of III

Additional Sessions Judge, Tiruchirapalli (hereinafter referred to as the

‘first appellate Court’). Challenging the acquittal of the accused under

Sections 307 and 506(ii) IPC, the victims (private respondents herein)

filed Criminal Appeal Nos. 108 to 110 of 2012.

2.2 The first appellate Court, vide judgment dated 18.01.2013, allowed

the appeal preferred by the accused and acquitted the accused. The

criminal appeals filed by the victims against acquittal of the accused

under Sections 307 and 506(ii) IPC came to be dismissed.

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2.3 Feeling aggrieved and dissatisfied with the common judgment and

order passed by the first appellate Court allowing criminal appeal No.

92/2012 preferred by the accused, the victims – private respondents

herein preferred criminal revision application nos. 323 to 326 of 2013

before the High Court under Section 397 r/w 401 Cr.P.C. By the

impugned judgment and order, while exercising the revisional jurisdiction

under Section 401 Cr.P.C., the High Court has set aside the judgment

and order passed by the first appellate Court allowing Criminal Appeal

No. 92/2012 and acquitting the accused, and consequently has

convicted the accused for the offences other than the offences under

Sections 307 & 506(ii) IPC and has restored the judgment and order of

conviction and sentence passed by the trial Court. The High Court has

however modified the sentences imposed by the trial Court.

2.4 Feeling aggrieved and dissatisfied with the impugned common

judgment and order passed by the High Court reversing the acquittal and

thereupon convicting the accused, while exercising the revisional

jurisdiction under Section 401 Cr.P.C., original accused nos. 6 to 8 have

preferred the present appeals.

3. Shri S. Nagamuthu, learned Senior Advocate appearing on behalf

of the accused has vehemently submitted that the High Court has erred

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in reversing the acquittal and convicting the accused, while exercising

the revisional jurisdiction under Section 401 Cr.P.C.

3.1 Shri S. Nagamuthu, learned Senior Advocate appearing on behalf

of the accused has heavily relied upon Section 401(3) Cr.P.C. Relying

upon sub-section (3) of Section 401 Cr.P.C., it is vehemently submitted

that while exercising the revisional jurisdiction under Section 401 Cr.P.C.,

the High Court has no jurisdiction at all to convert a finding of acquittal

into one of conviction. It is submitted that the only course open to the

High Court would be to give its own finding and thereafter remit the

matter either to the trial Court or to the first appellate Court, as the case

may be. Reliance is placed upon the decisions of this Court in the cases

of K. Chinnaswamy Reddy v. State of Andhra Pradesh, AIR 1962 SC

1788; Sheetal Prasad v. Sri Kant, (2010) 2 SCC 190; Ganesha v.

Sharanappa, (2014) 1 SCC 87; and Ram Briksh Singh v. Ambika Yadav,

(2004) 7 SCC 665.

3.2 Shri S. Nagamuthu, learned Senior Advocate appearing on behalf

of the accused has further submitted that after the amendment in

Section 372 Cr.P.C., by which proviso to Section 372 Cr.P.C. came to be

inserted by Act 5 of 2009, w.e.f. 31.12.2009, the victim shall have a right

to prefer an appeal against any order passed by the Court acquitting the

accused or convicting for a lesser offence or imposing inadequate

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compensation and as per the said proviso, such appeal shall lie to the

Court to which an appeal ordinarily lies against the order of conviction of

such Court. It is submitted that therefore once the victim has a statutory

right of appeal against the order of acquittal under Section 372, Cr.P.C.,

the revision application before the High Court shall not be entertained

against the judgment and order of acquittal. Reliance is placed on subsection 4 of Section 401 Cr.P.C.

3.3 Shri S. Nagamuthu, learned Senior Advocate appearing on behalf

of the accused has also relied upon the decision of this Court in the case

of Mallikarjun Kodagali v. State of Karnataka, (2019) 2 SCC 752, by

which the right of the victim to prefer an appeal against the order of

acquittal has been recognised. It is submitted that as held by this Court,

even in a case where the victim prefers an appeal against acquittal, he

has an absolute right of appeal and therefore he is not required to even

seek leave to appeal as required in case of “complainant” while

preferring the appeal under Section 378(4) Cr.P.C.

3.4 Shri S. Nagamuthu, learned Senior Advocate appearing on behalf

of the accused has further submitted that assuming that the High Court

in exercise of powers under sub-section (5) of Section 401 Cr.P.C. may

treat the application for revision as a petition of appeal and deal with the

same accordingly, the High Court has to pass a judicial order to treat the

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application for revision as a petition of appeal. It is submitted that in the

present case, no such judicial order has been passed by the High Court

and the High Court has exercised the jurisdiction under Section 401

Cr.P.C. and has reversed the acquittal and has convicted the accused

which, as such, is not permissible and it is beyond the scope and ambit

of exercise of revisional jurisdiction under Section 401 Cr.P.C.

3.5 Shri S. Nagamuthu, learned Senior Advocate appearing on behalf

of the accused has also tried to make submissions on merits and has

submitted that the first appellate Court gave cogent reasons while

acquitting the accused and recorded the findings in favour of the

accused which were not required to be interfered with by the High Court

in exercise of the revisional jurisdiction. However, for the reasons stated

hereinbelow, we propose to remand the matter to the High Court, we do

not propose to consider any of the submissions on merits of the case

and to go into whether the High Court on merits is justified in reversing

the order of acquittal and convicting the accused.

4. Shri (Dr.) Joseph Aristotle, learned Advocate appearing on behalf

of the respondent-State has, as such, fairly conceded that in exercise of

powers under Section 401 Cr.P.C., the High Court could not have

reversed the acquittal and/or convert a finding of acquittal into one of

conviction. However, he has submitted that the High Court could have

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treated the application for revision as a petition of appeal and dealt with

the same accordingly as provided under sub-section (5) of Section 401

Cr.P.C.

4.1 It is further submitted that even otherwise the victims in the present

case were having a right of appeal to the High Court against the order of

acquittal as provided under Section 372 Cr.P.C. It is therefore submitted

that even otherwise the victims could have preferred the appeal before

the High Court against the order of acquittal. It is submitted that merely

because mistakenly and/or inadvertently the victims preferred revision

applications, their right to appeal conferred under Section 372 Cr.P.C.

could not have been taken away. Therefore, it is submitted that either

the revision applications preferred by the victims may be treated as

petitions of appeals in exercise of powers under sub-section (5) of

Section 401 Cr.P.C. or the matter may be remanded to the High Court to

convert the revision applications into appeals and to treat them as

appeals under Section 372 Cr.P.C.

5. Though served, no body appears on behalf of the private

respondents – victims.

6. In rejoinder, Shri S. Nagamuthu, learned Senior Advocate

appearing on behalf of the accused has opposed the prayer made on

behalf of the respondent-State to treat the revision applications as

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appeals as per sub-section (5) of Section 401 Cr.P.C. It is submitted that

firstly the High Court has to pass a judicial order to treat the revisional

applications as petitions of appeals and thereafter the High Court is

required to give an opportunity to the accused as if the High Court is

deciding the appeal against the order of acquittal. It is submitted that the

scope and ambit of revisional jurisdiction and appellate jurisdiction is

distinct and separate. It is submitted that while considering the revision

application, the revisional court would have a limited scope, however,

while deciding the appeal, the appellate Court has a wide jurisdiction

than that of the revisional jurisdiction.

7. We have heard the learned counsel appearing on behalf of the

respective parties at length.

Having heard the learned counsel for the respective parties, the

following questions arise for the consideration of this Court:

i) Whether the High Court in exercise of the revisional jurisdiction

under Section 401 Cr.P.C. is justified in setting aside the order

of acquittal and convicting the accused by converting the finding

of acquittal into one of conviction?;

ii) In a case where the victim has a right of appeal against the

order of acquittal, now as provided under Section 372 Cr.P.C

and the victim has not availed such a remedy and has not

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preferred the appeal, whether the revision application is

required to be entertained at the instance of a party/victim

instead of preferring an appeal?; and

iii) While exercising the powers under sub-section (5) of Section

401 Cr.P.C. treating the revision application as petition of appeal

and deal with the same accordingly, the High Court is required

to pass a judicial order?

8. Now so far as the first issue, whether in exercise of the revisional

jurisdiction under Section 401 Cr.P.C., the High Court can convert a

finding of acquittal into one of conviction and what is the procedure to be

followed by the High Court, as such, the said issue is now not res

integra. On the aforesaid, few decisions of this Court, referred to

hereinabove, are required to be considered.

a) In the case of K. Chinnaswamy Reddy (supra), while considering

the similar provision under the old Code, namely, Section 439(4)

Cr.P.C., it is observed and held that “though sub-section (1) of Section

439 of the Criminal Procedure Code authorised the High Court to

exercise in its discretion any of the powers conferred on a Court of

Appeal by Section 423, yet sub-section (4) specifically excludes the

power to convert a finding of acquittal into one of conviction”. It is

observed that “at that stage the revisional court stops short of finding

the accused guilty and passing sentence on him by ordering a retrial”.

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What order should be passed by the High Court in a revision

application against the order of acquittal, while exercising the

revisional jurisdiction, has been dealt with and considered in

paragraph 11, which reads as under:

“11. The next question is what order should be passed in a case like the

present. The High Court also considered this aspect of the matter. Two

contingencies arise in such a case. In the first place there may be an

acquittal by the trial court. In such a case if the High Court is justified, on

principles we have enunciated above, to interfere with the order of

acquittal in revision, the only course open to it is to set aside the acquittal

and send the case back to the trial court for retrial. But there may be

another type of case, namely, where the trial court has convicted the

accused while the appeal court has acquitted him. In such a case if the

conclusion of the High Court is that the order of the appeal court must be

set aside, the question is whether the appeal court should be ordered to

rehear the appeal after admitting the statement it had ruled out or whether

there should necessarily be a retrial. So far as this is concerned, we are of

opinion that it is open to the High Court to take either of the two courses. It

may order a retrial or it may order the appeal court to rehear the appeal. It

will depend upon the facts of each case whether the High Court would

order the appeal court to rehear the appeal or would order a retrial by the

trial court. Where, as in this case, the entire evidence is there and it was

the appeal court which ruled out the evidence that had been admitted by

the trial court, the proper course in our opinion is to send back the appeal

for rehearing to the appeal court. In such a case the order of the trial court

would stand subject to the decision of the appeal court on rehearing. In the

present case it is not disputed that the entire evidence has been led and

the only defect is that the appeal court wrongly ruled out evidence which

was admitted by the trial court. In the circumstances we are of opinion that

the proper course is to direct the appeal court to rehear the appeal and

either maintain the conviction after taking into consideration the evidence

which was ruled out by it previously or to acquit the accused if that is the

just course to take. We should like to add that the appeal court when it

rehears the appeal should not be influenced by any observations of the

High Court on the appreciation of the evidence and should bring to bear its

own mind on the evidence after taking into consideration that part of the

evidence which was considered inadmissible previously by it. We therefore

allow the appeal subject to the modification indicated above.”

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b) In the case of Ram Briksh Singh (supra), after considering the

decision in the case of K. Chinnaswamy Reddy (supra) and earlier

decision in the case of D. Stephens v. Nosibolla, AIR 1951 SC 196, it

is observed and held that the High Court in a revision application

against the order of acquittal and while exercising the powers of the

revisional Court can set aside an order of acquittal and remit the case

for retrial where material evidence is overlooked by the trial Court.

c) Again, in the case of Sheetala Prasad (supra), it is reiterated that

Section 401(3) Cr.P.C. prohibits conversion of a finding of acquittal into

one of conviction and in such cases retrial or rehearing of the appeal

might be ordered.

d) In the case of Ganesha (supra), it is observed in pragraphs 10 to

12 as under:

“10. Section 386(a) thus authorises the appellate court to reverse an order

of acquittal, find the accused guilty and pass sentence on the person

found guilty. However, sub-section (3) of Section 401 of the Code

contemplates that the power of revision does not authorise a High Court to

convert a finding of acquittal into one of conviction. On the face of it, the

High Court while exercising the powers of revision can exercise all those

powers which have been conferred on the court of appeal under Section

386 of the Code but, in view of sub-section (3) of Section 401 of the Code,

while exercising such power, cannot convert a finding of acquittal into one

of conviction.

11. However, in a case where the finding of acquittal is recorded on

account of misreading of evidence or non-consideration of evidence or

perverse appreciation of evidence, nothing prevents the High Court from

setting aside the order of acquittal at the instance of the informant in

revision and directing fresh disposal on merit by the trial court. In the event

of such direction, the trial court shall be obliged to reappraise the evidence

in light of the observation of the Revisional Court and take an independent

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view uninfluenced by any of the observations of the Revisional Court on

the merit of the case. By way of abundant caution, we may herein observe

that interference with the order of acquittal in revision is called for only in

cases where there is manifest error of law or procedure and in those

exceptional cases in which it is found that the order of acquittal suffers

from glaring illegality, resulting into miscarriage of justice. The High Court

may also interfere in those cases of acquittal caused by shutting out the

evidence which otherwise ought to have been considered or where the

material evidence which clinches the issue has been overlooked. In such

an exceptional case, the High Court in revision can set aside an order of

acquittal but it cannot convert an order of acquittal into that of an order of

conviction. The only course left to the High Court in such exceptional

cases is to order retrial.

12. The view, which we have taken finds support from a decision of this

Court in Bindeshwari Prasad Singh v. State of Bihar [(2002) 6 SCC 650 :

2002 SCC (Cri) 1448] , in which it has been held as follows: (SCC pp. 654-

55, para 12)

“12. … Sub-section (3) of Section 401 in terms provides that nothing

in Section 401 shall be deemed to authorise a High Court to convert

a finding of acquittal into one of conviction. The aforesaid subsection, which places a limitation on the powers of the Revisional

Court, prohibiting it from converting a finding of acquittal into one of

conviction, is itself indicative of the nature and extent of the revisional

power conferred by Section 401 of the Code of Criminal Procedure. If

the High Court could not convert a finding of acquittal into one of

conviction directly, it could not do so indirectly by the method of

ordering a retrial. It is well settled by a catena of decisions of this

Court that the High Court will ordinarily not interfere in revision with

an order of acquittal except in exceptional cases where the interest of

public justice requires interference for the correction of a manifest

illegality or the prevention of gross miscarriage of justice. The High

Court will not be justified in interfering with an order of acquittal

merely because the trial court has taken a wrong view of the law or

has erred in appreciation of evidence. It is neither possible nor

advisable to make an exhaustive list of circumstances in which

exercise of revisional jurisdiction may be justified, but decisions of

this Court have laid down the parameters of exercise of revisional

jurisdiction by the High Court under Section 401 of the Code of

Criminal Procedure in an appeal against acquittal by a private party.”

9. Applying the law laid down by this Court in the aforesaid decisions

and on a plain reading of sub-section (3) of Section 401 Cr.P.C., it has to

be held that sub-section (3) of Section 401 Cr.P.C. prohibits/bars the

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High Court to convert a finding of acquittal into one of conviction.

Though and as observed hereinabove, the High Court has revisional

power to examine whether there is manifest error of law or procedure

etc., however, after giving its own findings on the findings recorded by

the court acquitting the accused and after setting aside the order of

acquittal, the High Court has to remit the matter to the trial Court and/or

the first appellate Court, as the case may be. As observed by this Court

in the case of K. Chinnaswamy Reddy (supra), if the order of acquittal

has been passed by the trial Court, the High Court may remit the matter

to the trial Court and even direct retrial. However, if the order of acquittal

is passed by the first appellate court, in that case, the High Court has

two options available, (i) to remit the matter to the first appellate Court to

rehear the appeal; or (ii) in an appropriate case remit the matter to the

trial Court for retrial and in such a situation the procedure as mentioned

in paragraph 11 of the decision in K. Chinnaswamy Reddy (supra),

referred to hereinabove, can be followed. Therefore, in the present

case, the High Court has erred in quashing and setting aside the order of

acquittal and reversing and/or converting a finding of acquittal into one of

conviction and consequently convicted the accused, while exercising the

powers under Section 401 Cr.P.C. The order of conviction by the High

Court, while exercising the revisional jurisdiction under Section 401

Cr.P.C., is therefore unsustainable, beyond the scope and ambit of

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Section 401 Cr.P.C., more particularly sub-section (3) of Section 401

Cr.P.C. Issue no.1 is answered accordingly.

10. Now so far as issue no.2, namely, in a case where no appeal is

brought though appeal lies under the Code, whether revision application

still to be entertained at the instance of the party who could have

appealed, the answer lies in sub-section (4) of Section 401 Cr.P.C. itself.

Sub-section (4) of Section 401 Cr.P.C. reads as under:

“(4) 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.”

10.1 It cannot be disputed that now after the amendment in Section 372

Cr.P.C. after 2009 and insertion of proviso to Section 372 Cr.P.C., a

victim has a statutory right of appeal against the order of acquittal.

Therefore, no revision shall be entertained at the instance of the victim

against the order of acquittal in a case where no appeal is preferred and

the victim is to be relegated to file an appeal. Even the same would be in

the interest of the victim himself/herself as while exercising the revisional

jurisdiction, the scope would be very limited, however, while exercising

the appellate jurisdiction, the appellate Court would have a wider

jurisdiction than the revisional jurisdiction. Similarly, in a case where an

order of acquittal is passed in any case instituted upon complaint, the

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complainant (other than victim) can prefer an appeal against the order of

acquittal as provided under sub-section (4) of Section 378 Cr.P.C.,

subject to the grant of special leave to appeal by the High Court.

10.2 As observed by this Court in the case of Mallikarjun Kodagali

(supra), so far as the victim is concerned, the victim has not to pray for

grant of special leave to appeal, as the victim has a statutory right of

appeal under Section 372 proviso and the proviso to Section 372 does

not stipulate any condition of obtaining special leave to appeal like subsection (4) of Section 378 Cr.P.C. in the case of a complainant and in a

case where an order of acquittal is passed in any case instituted upon

complaint. The right provided to the victim to prefer an appeal against

the order of acquittal is an absolute right. Therefore, so far as issue no.2

is concerned, namely, in a case where the victim and/or the complainant,

as the case may be, has not preferred and/or availed the remedy of

appeal against the order of acquittal as provided under Section 372

Cr.P.C. or Section 378(4), as the case may be, the revision application

against the order of acquittal at the instance of the victim or the

complainant, as the case may be, shall not be entertained and the victim

or the complainant, as the case may be, shall be relegated to prefer the

appeal as provided under Section 372 or Section 378(4), as the case

may be. Issue no.2 is therefore answered accordingly.

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11. Now so far as the power to be exercised by the High Court under

sub-section (5) of Section 401, Cr.P.C., namely, the High Court may treat

the application for revision as petition of appeal and deal with the same

accordingly is concerned, firstly the High Court has to pass a judicial

order to treat the application for revision as petition of appeal. The High

Court has to pass a judicial order because sub-section (5) of Section 401

Cr.P.C. provides that if the High Court is satisfied that such revision

application was made under the erroneous belief that no appeal lies

thereto and that it is necessary in the interests of justice so to do. While

treating with the application for revision as petition of appeal and deal

with the same accordingly, the High Court has to record the satisfaction

as provided under sub-section (5) of Section 401 Cr.P.C. Therefore,

where under the Cr.P.C. an appeal lies, but an application for revision

has been made to the High Court by any person, the High Court has

jurisdiction to treat the application for revision as a petition of appeal and

deal with the same accordingly as per sub-section (5) of Section 401

Cr.P.C., however, subject to the High Court being satisfied that such an

application was made under the erroneous belief that no appeal lies

thereto and that it is necessary in the interests of justice so to do and for

that purpose the High Court has to pass a judicial order, may be a formal

order, to treat the application for revision as a petition of appeal and deal

with the same accordingly.

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12. Now the next question is what order should be passed in a case

like the present. This Court may either set aside the impugned judgment

and order passed by the High Court setting aside the acquittal and

convicting the accused so as to enable the High Court to remit the matter

to the first appellate Court to rehear the appeal after considering the

findings recorded by it or to remit the matter to the High Court to treat the

revision application as a petition of appeal against the order of acquittal,

which otherwise is permissible under sub-section (5) to Section 401

Cr.P.C. As observed hereinabove, as such, while exercising the powers

under sub-section (5) to Section 401 Cr.P.C. to treat the revision

application as a petition of appeal, the High Court is required to pass a

judicial order. However, considering the fact that even otherwise being

victims they are having the statutory right of appeal as per proviso to

Section 372 Cr.P.C., we deem it fit and proper to remit the matter to the

High Court to treat the revision applications as petition of appeals under

Section 372 Cr.P.C. and to decide the same in accordance with law and

on their own merits. The same would be in the interests of all, namely,

the victims as well as the accused, as the appellate Court would have a

wider scope and jurisdiction as an appellate Court, rather than the

revisional court.

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13. In view of the above and for the reasons stated above, the

impugned common judgment and order passed by the High Court

reversing the acquittal and convicting the accused is hereby quashed

and set aside. The matters are remitted to the High Court. The High

Court is directed to treat the revision applications as appeals under

Section 372 Cr.P.C. and thereafter to decide and dispose of the same in

accordance with law on their own merits.

14. The present appeals are accordingly allowed in the aforesaid

terms.

………………………………….J.

[M.R. SHAH]

NEW DELHI; …………………………………..J.

JANUARY 25, 2022. [SANJIV KHANNA]

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