Criminal Writ Petition No.235 of 1995

3rd April, 1996

Petitioner Counsel: R. L. KHAPRE & Mrs. S. P. DESHPANDE
Respondent Counsel: S/Shri K. R. LAMBAT & T. B. PANTAWANE, Shri D. B. PATEL

Cases Cited:
NOC - 1 of 1968 Mh.L.J. [Para 5]
AIR 1981 SC 1169 [Para 8]
(1975) 2 SCR 886 [Para 8]
1986 (2) Bom.C.R. 289 [Para 8]
(1978)2 SCR 820 [Para 8]

JUDGMENT

JUDGMENT :- The petitioner is the complainant in criminal case No.174/87 of Judicial Magistrate First Class, Chandrapur. Respondent Nos.1 to 3 are the accused in the said criminal case. The learned Magistrate took cognisance against the said three accused persons for the offences punishable under Sections 324 and 506 read with Sec.34 of I.P.C. as per the final report laid by the police. After trial learned Magistrate acquitted the accused. The first informant-injured preferred a revision before the learned Sessions Judge as criminal revision No.445/94 along with a petition under Section 5 of the Limitation Act for condoning delay in submitting the revision.

2. Admittedly, the said revision was filed beyond 90 days prescribed under article 131 of the Limitation Act. The learned Sessions Judge dismissed the application for condonation of delay on the ground that the writ petitioner failed to establish sufficient cause for condoning the delay. He has also dismissed the revision as, according to the learned Sessions Judge, an appeal was maintainable before the High Court against the acquittal.

3. The learned counsel for the petitioner Mr. R. L. Khapre, attacked the decision of the learned Sessions Judge contending that even if for argument sake it is taken that the writ petitioner was not successful in establishing sufficient cause the view taken by the learned Sessions Judge that a revision is not maintainable before him and only an appeal against acquittal is maintainable before the High Court, is opposed to law and hence the same deserves to be set at right by this Court. It is also urged by the learned counsel that even where the revision is filed beyond the time prescribed, the Court has to apply its mind to see whether the case in hand is one with respect to which the Court should exercise its suo motu revisional powers and if the learned Sessions Judge comes to the conclusion that conditions exist where the Court must exercise its suo motu powers of revision under Section 397 of CR.P.C, there is no bar of limitation for exercising that power, and in this matter since the learned Sessions Judge has not applied his mind properly, the impugned order is liable to be interfered with under Article 227 of the Constitution of India.

4. The learned counsel for the respondents on the other hand contended that since the learned Sessions Judge is not a party to the proceedings the provisions of Article 227 of the Constitution of India cannot be invoked. A faint attempt was also made to contend that an appeal in the given circumstance is maintainable against the acquittal before the High Court.

5. The first argument that the learned Sessions Judge also has to be a party to the proceedings cannot be accepted because what is invoked is only the power of superintendence of this Court under Article 227 of the Constitution of India. In Muhammed Enamul Haque-V-Muhammad Hussain (Notes of Cases - 1 of 1968 Mh.L.J.), the Supreme Court has held that when no writ is sought to be issued and only the power of superintendence vested in the High Court under Article 227 is invoked the authorities or the Tribunal whose orders are challenged are not necessary parties. It is further observed in the said decision that ".... There is neither practice, nor binding authority to support the contention that in a proceeding for an order under Article 227 of the Constitution it is necessary to implead the Court or Tribunal against the order for which the proceeding is initiated in the High Court .....". Therefore, the said argument of the learned counsel for the respondents, in the circumstance, cannot be sustained.

6. As regards the case of sufficient cause it is averred in the affidavit filed by the petitioner that he was relying on the A.P.P. as to the progress of the case who had given him to understand that the evidence of the medical officer is yet to be completed and only on 8.6.1994 the A.P.P. required him to verify the matter with the Court. He would maintain that accordingly he came to know of the disposal of the case and thereafter he applied for the certified copies of the judgment on 10.6.1994. The revision application was submitted only on 14.6.1994 whereas the judgment of the trial Court was on 29.10.1993. No affidavit of the Public Prosecutor or his clerk was filed in support of the submission explaining the sufficient case. Therefore, it cannot be disputed that there was hardly any material to find that there was sufficient cause for not filing the revision in time.

7. As already noted, the thrust of the argument of the learned counsel for the petitioner Shri Khapre is the observation of the learned Sessions Judge in paragraph 10 of the impugned order that since an appeal lies against the order of acquittal this revision is not maintainable, is not sustainable. Under Section 378 of Cr.P.C. the complainant can prefer an appeal against the acquittal with leave of the Court to be obtained under subsection (4) thereof, if the said judgment was rendered on the basis of a private complaint. If cognisance was taken by the Court on the basis of a report by the police, under Sec.173 of Cr.P.C. appeal against acquittal is possible only at the instance of the State. Therefore, the view expressed by the learned Sessions Judge in para 10 of the judgment that an appeal is maintainable is opposed to law, inasmuch as cognisance in this case was taken by the learned Magistrate on a police report.

8. The learned counsel for the petitioner relying on the decision in Municipal Corporation of Delhi-V-Girdharilal Sapuru and others (AIR 1981 Supreme Court 1169) maintained that in such circumstance the learned Sessions Judge ought to have applied his mind to see as to whether circumstance existed for calling the records for exercising the suo motu revisional jurisdiction of the Sessions Judge. In the above decision, the trial Court discharged the accused in a case instituted under the Prevention of Food Adultration Act, 1955 relying on the decision in Pamnani's case reported in (1975) 2 SCR 886. Though the revision was filed within the period of limitation, it was defective and by the time the defect was cured and submitted the same became beyond time. The revision was dismissed by the revisional Court. The Supreme Court pointed out that inasmuch as Pamnani's case (cited supra) has been overruled in the decision in Alaserry's case (1978) 2 SCR 820, there being an illegality in the order of discharge that was a case where the Court ought to have set aside the order of discharge in stead of allowing the perpetuation of the wrong order. The learned counsel also relied on the decision in the case of Kokilabai w/o Ramchandra Mahajan-v-Gangadhar s/o Shivram Mahajan and another reported in 1986(2) Bom.C.R.289 in support of his claim on the point of maintainability of revision before the Sessions Court.

9. In the light of the above decision it is clear that it is not correct in a given situation for the Court to proceed to dismiss the revision on the ground of bar of limitation without applying its mind to see as to whether circumstance existed for calling records for exercise of the suo motu revisional jurisdiction under Section 397 of Cr.P.C.

10. On a perusal of the judgment of the learned Magistrate, what is revealed is that the learned Magistrate had discussed the evidence of the injured as well as the occurrence witnesses and disbelieved them after assigning reasons for the same. If a Court on a scrutiny of the evidence of the injured and the occurrence witnesses reaches the conclusion that the said evidence is not capable of proving the prosecution case beyond reasonable doubt, the revisional jurisdiction cannot be invoked to interfere in that conclusion on the ground that the trial Court did not exhaust all steps for examining the medical officer who issued the wound certificate. Here, since the judgment of the trial Court shows that the Court has adverted to the evidence, discussed the same and reached the conclusion on the basis of the same, even if two views are possible, in exercise of the revisional powers, particularly suo motu revisional powers, the revisional Court cannot interfere with the said decision. The power of general superintendence conferred by Article 227 of the Constitution of India is restricted to interference in case of grave dereliction of duty or flagrant violation of law and would be exercised only sparingly where failure to exercise the power would result in grave injustice. In this case when it is clear that revisional power cannot be invoked, remittance to the learned Sessions Judge to apply his mind to see as to whether this is a case where suo motu revisional jurisdiction is to be exercised or not is not possible especially in the context of the nature of the jurisdiction of this Court under Article 227 of the Constitution of India.

11. For the aforesaid reasons, the writ petition is liable to be dismissed which accordingly is dismissed.

Petition dismissed.