J.P. Desai, J.
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4. We may mention at the outset that the accused No. 1 who has been convicted by the learned Sessions Judge of the 'offence punishable Under Section 304(1) I.P.C. has not filed any appeal challenging the conviction and sentence passed against him. In this connection, the learned advocate Mr. Gandhi appearing for the respondents submitted that even though accused No. 1 has not filed any appeal against, the order of conviction, this Court can while appreciating the evidence in this appeal, consider whether the conviction of accused No. 1 for the said offence is justifiable or not. He urged that even though no appeal has been filed by the accused No. 1, this Court, while hearing this appeal, can exercise revisional powers and acquit accused No. 1 of the said offence, even though he has not filed any appeal. He has relied upon the decisions reported in (1) Emperor v. Panchaksharam AIR 1938 Mad 723 : 1938 (39) Cri LJ 871, (2) State Government, Madhaya Pradesh v. Sheodayal Gurudayal AIR 1956 Nag 8 : 1956 Cri LJ 83 and (3) The State v. Babulal and Bherumal in support of his submission. Before going to the authorities cited by Mr. Gandhi, it would be proper to refer to the relevant corresponding provisions of the Code of Criminal Procedure, 1973, which relate to the powers of revision by the High Court. Section 397 of the Code of Criminal Procedure, 1973, empowers the High Court to call for and examine the record of any proceedings before any inferior criminal Court situate within its jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court. Section 401(1) of the Code says that - in the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 of the Criminal P.C. This shows that the power of revision can be exercised by the High Court even if the record and proceedings are not called for Under Section 397 but have come to the knowledge of the Court in any proceedings. The record and proceedings of Sessions Case No. 47/82 are before us in this acquittal appeal and by virtue of the provisions of Section 401(1) of the Criminal P.C., we can exercise this power conferred on us in revision. Section 401 says that the powers which can be exercised by a Court of appeal, can be exercised by us in exercise of the powers of revision. Therefore, there does not appear any difficulty in accepting the submission of Mr. Gandhi that the powers of revision can be exercised and if ultimately we come to the conclusion that the conviction of accused No. 1 even for offence of culpable homicide is not justifiable, then we can in exercise of the powers of revision set aside the said conviction also even though accused No. 1 has not filed any appeal before this Court against his conviction.
5. So far as the decision of the Madras High Court, Emperor v. Panchaksharam 1938 (39) Cri LJ 871 (supra) is concerned, it appears that the accused-appellant in that case was acquitted of the offence punishable Under Section 304 I.P.C. but was convicted Under Section 335 I.P.C. and the State filed an appeal against the said acquittal. The Madras High Court in that case held that in an appeal against the acquittal, the accused is entitled to ask the court to consider all the evidence before it and all the possible grounds which may be raised against the conviction. The Madras High Court held that where an accused is acquitted Under Section 304 but convicted Under Section 335 and the crown appeals against the acquittal Under Section 304, the accused is entitled to argue on the facts of the case to show that he has not committed an offence Under Section 304 I.P.C. and although the acceptance of those arguments may not automatically set aside the conviction Under Section 335 I.P.C. yet if the Court were satisfied that no offence was committed, it would undoubtedly exercise suo motu its powers Under Section 439(1) Criminal P.C. and set aside the conviction.
6. The Nagpur High Court in State Govt., Madhya Pradesh v. Sheodayal Gurudayal 1956 Cri LJ 83 (supra) also took the same view following the decision of the Madras High Court, which we have discussed above. The Nagpur High Court held that if there was an appeal by the Crown against acquittal of a major offence, the conviction for the minor offence can he set aside by the High Court even though no appeal may have been filed by the accused against the conviction for the said minor offence. The Nagpur High Court held that in an appeal by the Crown against his major offence, the High Court has power Under Section 439(1) to acquit the accused where the facts found are incompatible with his guilt even for the minor offence. The Nagpur High Court held that the powers of the High Court under Sub-section (1) of Section 439 are not trammelled by Sub-section (5) which only negatives the right of the accused to come up in revision when he could have preferred an appeal.
7. So far as the decision of the Rajasthan High Court in the case of The State v. Babulal and Bherumal 1956 Cri LJ 550 (supra) is concerned, the same view has been taken. The Rajasthan High Court observed at para 11 as follows :
Though therefore we must satisfy ourselves that on the facts the conviction is correct, the accused have no right to address us on the correctness of the conviction on the facts for one of them did not take the opportunity to appeal, and the other, though he did appeal, later did not press that appeal and allowed it to be dismissed. This aspect of the matter has to be borne in mind in view of the peculiar circumstances of this appeal by the State.
8. Looking to the provisions of Section 401 of the Criminal P.C. 1973, we are inclined to accept the submissions of Mr. Gandhi that if on examining the evidence on record, we find that if the conviction for the offence of culpable homicide not amounting to murder is not established, then we can in the exercise of revisional powers, set aside the conviction even though no appeal has been filed against the said conviction. We are supported in (his view of ourselves by (he three decisions cited by Mr. Gandhi which we have discussed earlier.
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