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Mahammadmiya Kalumiya Vs. Majidkhan Dildarkhan and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1972CriLJ1409
AppellantMahammadmiya Kalumiya
RespondentMajidkhan Dildarkhan and anr.
Cases ReferredChinnaswamy v. State of Andhra Pradesh
Excerpt:
.....of acquittal. on this ground alone therefore the application will fail, and it is not necessary to examine the other contentions..........of section 439 of the criminal procedure code is clear on this point. it reads: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. this is so because the acquittal has been recorded in a case instituted upon a complaint. the fact that right of appeal granted to a private complainant under section 417 (3) is not an absolute right but a qualified right is of no consequence in such a case. the relevant portion of section 417 may be reproduced for the purpose of this discussion.(1). subject to the provisions of sub-section (5) the state government may, in any case, direct the public prosecutor to present an appeal to the high court from an original or appellate order of.....
Judgment:
ORDER

D.P.Desai, J.

1. The petitioner is the original complainant. He had filed a private complaint against opponent No. 1 Original Accused in the Court of the Judicial Magistrate, First Class, at Surat for offences under Sections 497 and 498 of the Indian Penal Code. The allegation was that the accused being aware of the fact that one Kherunnissa was the lawfully wedded wife of the complainant enticed her away with intent that she may have illicit intercourse with him and concealed or detained her with that intent and also committed sexual intercourse with her without the consent of the complainant. The learned Magistrate at the end of the trial convicted the accused under Section 498 of the Indian Penal Code and sentenced him to`I. for 2 months and a fine of Rs. 100/-. He was acquitted of the offence under Section 497 of the Indian Penal Code. Against that order of conviction and sentence the accused went in appeal to the Sessions Court at Surat and the learned Sessions Judge disagreeing with the trial Court allowed the appeal and acquitted the accused of the offence under Section 498, Indian Penal Code. It is against this acquittal that the original complainant has come in revision.

2. The prosecution was started upon institution of a complaint by the petitioner-complainant in this case. Therefore, at the hearing of this petition, a question arose whether the revisional application would be maintainable inasmuch as the petitioner has not sought leave to appeal against the acquittal under Section 417 (3) of the Criminal Procedure Code. Having heard the learned advocates for both the sides I am satisfied that the present application at the instance of the complainant is not competent. Sub-section (5) of Section 439 of the Criminal Procedure Code is clear on this point. It reads:

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.

This is so because the acquittal has been recorded in a case instituted upon a complaint. The fact that right of appeal granted to a private complainant under Section 417 (3) is not an absolute right but a qualified right is of no consequence in such a case. The relevant portion of Section 417 may be reproduced for the purpose of this discussion.

(1). Subject to the provisions of Sub-section (5) the State Government may, in any case, 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.

(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 the Central Government may also direct the Public Prosecutor to present an appeal to the High Court from the order or acquittal.

(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.' In Sankalchand v. Khengaram : AIR1969Guj342 , N. G. Shelat J. as he then was following an earlier decision of the Bombay High Court, held that the words in Sub-section (5) of Section 439 of the Code are wide enough to include any right of appeal of any party under the provisions of the Code and in a case instituted upon a private complaint if the complainant failed to invoke the provisions contained in Sub-section (3) of Section 417 of the Code, proceedings by way of revision cannot be entertained. The words in Sub-section (5) of Section 439 were interpreted to include an appeal where an application for leave is contemplated as a condition precedent to the entertainment of appeal. That view was taken in State of Bombay v. N. G. Tayawade : AIR1959Bom94 and it was followed by N. G. Shelat J. in Sankal-chand's case : AIR1969Guj342 (supra). With respect, this is the correct view of Sub-section (5) of Section 439 of the Criminal Procedure Code read with Section 417 (3). So far the position having been settled there is no controversy before me.

3. However Mr. Shelat or the petitioner-complainant urged that in a case instituted upon a complaint the right of appeal conferred by Sub-section (3) of the Section 417 is available only if the acquittal is by the trial Court and is not available if there is conviction by the trial Court and acquittal by the Sessions Court in appeal. In his submission the words 'such an order of acquittal' occurring in Sub-section (3) mean an order of acquittal passed by any court other than a High Court. He urged that the words occurring in that context should be interpreted to mean the trial Court only. It is not possible to agree with this interpretation to the word 'Court' occurring in Sub-section (1) of Section 417. Even on the interpretation of Mr. Shelat the words 'such an order of acquittal' in Sub-section (3) would cover an acquittal by the Sessions Court that is any Court other than a High Court. There is no reason why we should give a restricted meaning to the word 'Court in Sub-section (1) of Section 417. Section 6 of the Criminal Procedure Code specifies the classes of criminal courts and Courts of Sessions are one of the two classes specified in that section. Another class is courts of Magistrates. It is the court of Sessions which would exercise powers in case of a conviction by a Magistrate where sentence awarded is appealable and in exercising those powers the Sessions Court does not cease to be a court, Therefore, even on the interpretation advanced by Mr. Shelat it is clear that the complainant should have filed an acquittal appeal against the acquittal order by the Sessions Court. It is clear that, the words 'such an order of acquittal' occurring in Sub-section (3) refer to an order of acquittal mentioned in Sub-section (1) which order of acquittal would include original as well as appellate order of acquittal. Therefore just as the State has been given a right of appeal from an original or appellate order of acquittal, in a given case a private party has also been given a right to appeal from the same kind of order of acquittal. The only limitation placed by the Legislature on the right conferred upon the private party in such a case is the limitation in the form of special leave to be obtained in appealing against the order of acquittal. Except this limitation there is no other distinction between the right of appeal conferred on the State and the right of appeal conferred upon a private party in specified cases. Mr. Shelat's contention, if accepted, would amount to placing a second restriction upon the right of appeal conferred by Section 417 (3) which is not justified by the language used in Sub-section (3) read with Sub-sections (1) and (2). It is therefore not possible to agree with the submission of Mr. Shelat that the words 'such an order of acquittal' occurring in Sub-section (3) refer to an order of acquittal passed by the trial Court only. These words refer to an order of acquittal passed by any court other than a High Court either in exercise of original jurisdiction or appellate jurisdiction. This was the view taken by a Single Judge of the Mysore High Court in Chairman, Village Panchayath y. Thimmasetty AIR 1956 Mys 62. There also in a case instituted upon a complaint there was conviction by the trial Court and acquittal by the appellate Court. The complainant went in revision to the High Court and it was held that the revisional application was not competent. The word 'such' in Sub-sections (2) and (3) of Section 417, was, it was observed, used with reference to an order of acquittal referred to in Sub-section (1) of Section 417. It was observed that the order of acquittal referred to in Sub-section (1) was an order of acquittal of the original on the appellate Court Therefore the contention that Sub-section (3) of Section 417 is applicable only to a case in which the order of acquittal is passed by the original court was negatived. With respect there is enough indication in the language of Sub-sections (1), (2) and (3) of Section 417 to agree with this view. Mr. Shelat in the course of his submission drew my attention to two decisions one of the Allahabad High Court reported as Abdul Halim v. State : AIR1966All222 . That was a case which had originated on a police report and not on a complaint and the Magistrate convicted the accused who was acquitted by the appellate Court A revisional application was filed to the High Court. It is obvious that the case was not covered by Section 417 (3) as it was not a case instituted upon a complaint. The other decision was of the Supreme Court reported as Chinnaswamy v. State of Andhra Pradesh : [1963]3SCR412 . In that case also the matter originated on police investigation and not upon a private complaint. In neither of these two cases the question whether the right of appeal conferred by Sub-section (3) of Section 417 is limited to acquittal by the original court only had arisen for determination, because in none of the two cases the original case was instituted upon a private complaint Therefore, these two decisions do not help Mr. Shelat.

4. In the present case there is no reason to exercise extraordinary jurisdiction of this court suo motu. On this ground alone therefore the application will fail, and it is not necessary to examine the other contentions advanced.

5. In the result the application fails and is dismissed. Rule discharged.


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