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Sankalchand Varchhaji Vs. Khengaram Vardhaji and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Case NumberCriminal Revn. Appln. No. 37 of 1967
Judge
Reported inAIR1969Guj342; 1969CriLJ1501; (1969)GLR947
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 247, 417, 417(3), 417(4), 417(5), 439, 439(5) and 561A; Indian Penal Code (IPC), 1860 - Sections 114 and 323 to 504
AppellantSankalchand Varchhaji
RespondentKhengaram Vardhaji and ors.
Appellant Advocate C.C. Patel, Adv.
Respondent Advocate H.K. Thakore, Adv. and; H.V. Bakshi, Asst. Govt. Pleader
DispositionRevision dismissed
Cases ReferredKam Narain v. Mool Chand
Excerpt:
- .....the powers of revision of the high court. sub-section (5) thereof says that 'where under this code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed......' thus, reading sub-section (3) of section 417 and sub-section (5) of section 439 of the criminal procedure code together, it appears abundantly clear that in any case instituted upon complaint and in whichan order of acquittal is passed by the court, an application has to be made by the complainant for obtaining special leave to appeal against the order of acquittal, from the high court and it is on the leave being granted that the complainant may present such an appeal to the high court. in other words, while an appeal is provided.....
Judgment:

N.G. Shelat, J.

1. This application in revision is directed against an order of acquittal presumably passed under Section 247 of the Criminal Procedure Code by Shri K. H. Damani, City Magistrate, 7th Court, Ahmedabad, in Criminal Case No. 1554 of 1966 on the ground that the complainant was not present when called out.

2. On 30th September 1966 the petitioner had filed a complaint in the Court of the learned Magistrate against the opponents inter alia alleging that they had committed offences punishable under Ss. 323-504 read with Section 114 of the Indian Penal Code. The process was directed to be issued by the learned Magistrate on 30-9-66 in respect of an offence under Section 323 of the Indian Penal Code. The procedure contemplated under Chapter XX of the Criminal Procedure Code in respect of trial of summons cases by Magistrates was followed in the case. The evidence of thecomplainant was recorded and then the matter had come to be adjourned to 27th December 1966. On that day, the complainant was absent and his learned advocate presented an application for an adjournment on the ground that the complainant and his witnesses were not able to remain present in Court. The learned Magistrate passed an order 'rejected'. In consequence, as the complainant was absent, he dismissed the complaint and ordered the acquittal of the accused. The order of acquittal obviously was one not on merits but was under Section 247 of the Criminal Procedure Code.

3. A preliminary point was raised by Mr. Thakore, the learned advocate for the opponents Nos. 1 to 4, that no application in revision can lie having regard to Section 439 Sub-section (5) of the Criminal Procedure Code, as, according to him, an appeal against any such order of acquittal even in a private complaint has been provided for under Sub-section (3) of Section 417 of the Criminal Procedure Code. Section 417 provides for appeals in cases of acquittal. Sub-section (1) thereof relates to the right of the State Government to direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court. Then Sub-section (3) thereof runs thus:--

'417. (3) If such an order of acquittal is passed in any case instituted upon complaint, and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal the complainant may present such an appeal to the High Court.'

Sub-section (4) then says that no application under Sub-section (3) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal. Then comes Sub-section (5) which says that if, in any case, the application under Sub-section (3) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under Sub-section (1). In this context we have to refer to Section 439 which contemplates the powers of revision of the High Court. Sub-section (5) thereof says that 'where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed......' Thus, reading Sub-section (3) of Section 417 and Sub-section (5) of Section 439 of the Criminal Procedure Code together, it appears abundantly clear that in any case instituted upon complaint and in whichan order of acquittal is passed by the Court, an application has to be made by the complainant for obtaining special leave to appeal against the order of acquittal, from the High Court and it is on the leave being granted that the complainant may present such an appeal to the High Court. In other words, while an appeal is provided in respect of any such complaint in which an order of acquittal is passed by the Court of the Magistrate, but that has to be subject to his obtaining the leave from the High Court. That is by way of a safeguard or check put on any such appeals being filed by the complainant in such cases. The fact, however, remains that a right of an appeal in such cases has been given by Subsection (3) of Section 417 of the Criminal Procedure Code. Mr. Patel, however, contended that Sub-section (5) of Section 439 of the Criminal Procedure Code does not pointedly refer to any such appeal as contemplated in Sub-section (3) of Section 417 of the Code, and, at any rate, it contemplates an absolute right of an appeal without any reservation which Sub-section (3) of Section 417 contemplates viz., of requiring the complainant to present an application for leave before any appeal can be filed. Sub-section (5) of Section 439 refers to the words 'where Under this Code an appeal lies and no appeal is brought'. The words used are, therefore, quite wide enough to include any right of appeal of any party under the provisions of this Code and it does not in any way restrict its application to the right of appeal where no such application for leave is contemplated. Such an argument came to be advanced in the case of State of Bombay v. N. G. Tayawade, AIR 1959 Bom 94, and it was held that such a provision of obtaining prior leave before presenting an appeal by itself connotes that the party has a right of appeal and obtaining of permission is only one procedural step in the pursuit of that right of presenting an appeal. It has been then observed that when the law has given this facility and this right to a private complainant which did not exist before the amendment of the Criminal Procedure Code, this right has been given for being exercised and not for circumventing the provisions of Section 439. It was then held that where the complainant has not taken requisite steps for filing the appeal under Section 417(3) of the Criminal Procedure Code, the revision proceedings at his instance are incompetent by reason of Sub-section (5) of Section 439 of the Criminal Procedure Code. A similar view has been taken in the case of Kam Narain v. Mool Chand, AIR 1960 All 296. It is, thus, obvious that an appeal has been provided against an order of acquittal passed in the case and since the complainant hasmade no attempt to invoke the provisions contained in Sub-section (3) of Section 417, by reason of Sub-section (5) of Section 439 of the Code, the proceedings by way of revision cannot be entertained at the instance of the complainant who could have appealed. The revision application, therefore, does not lie.

4. It was, however, urged by Mr. Patel that the order of acquittal is likely to cause great injustice to the applicant and that this Court should exercise inherent powers contemplated under Section 561A of the Criminal Procedure Code. The powers contemplated under Section 561A are no doubt quite wide and can be exercised in suitable cases where grave injustice has resulted there from. They can however be invoked, and exercised by the Court where there exists no provision under which any party so affected can get the same remedy from the Court. As I said above, the complainant had the advantage of invoking the aid of the provisions contained in Section 417(3) of the Criminal Procedure Code, and not having so availed of, cannot justify this Court to remedy the same by exercising its inherent powers contemplated under Section 561A of the Criminal Procedure Code.


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