SEC 401 CRPC

Joseph Stephen vs Santhanasamy, SC 2022

FACTS – 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.

The Chief Judicial Magistrate, Tiruchirapalli, by judgment in 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.

Feeling aggrieved and dissatisfied with the judgment and order of conviction passed by the Chief Judicial Magistrate, Tiruchirapalli, the accused preferred Criminal Appeal in 2012 in the Court of III Additional Sessions Judge, Tiruchirapalli. Challenging the acquittal of the accused under Sections 307 and 506(ii) IPC, the victims also filed Criminal Appeal 2012. The first appellate Court, in 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.

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 in 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 in 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.

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.

CAUSE – 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 accused.

ARGUMENTS – 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.

Shri S. Nagamuthu, learned Senior Advocate 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.

ISSUE – 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?

DECISION – 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.

Applying the law laid down by this Court in the various 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 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 v. State of Andhra Pradesh, AIR 1962 SC 1788,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.

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

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.