Friday, April 19, 2024

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CASE LAWSCRPCLEGAL AFFAIRS

SEC 405 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 โ€“ 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.

  

ARGUMENTSShri 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 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.

ISSUE – Whether 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?

  

DECISION – 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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