Renu Mishra, aged about 40 years, wife of Saroj Mishra and daughter of Sri v. 1. The State of Jharkhand 2. Satya Prakash Pathak, aged about 35 years, Son
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 520 of 2019 Renu Mishra, aged about 40 years, wife of Saroj Mishra and daughter of Sri Janardan Pathak, resident of village – Naliya, P.O. and P.S. – Naliya, District – kachh, State – Gujrat, Paternal home – Dhalbhum, P.O. and P.S. – Dhalbhum, Namotola, Parsudih, District – East Singhbhum, Jamshedpur … … Petitioner Versus 1. The State of Jharkhand 2. Satya Prakash Pathak, aged about 35 years, Son of Janardan Pathak, resident of Haludbani, Namotola, P.O. and P.S. – Parsudih, District – East Singhbhum, Jamshedpur. … … Opposite Parties --- CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner For the State For the Opp. No.2
Legal Reasoning
--- : Mr. Lakhan Chandra Roy, Advocate : Mr. Shailesh Kumar Sinha, APP : Mr. D.K. Karmakar, Advocate --- 13/18.04.2024 The learned counsel for the parties are present. 2. The learned counsel for the opposite party no.2 has also entered appearance pursuant to notice issued by this Court. 3. The impugned appellate order is dated 11.12.2018 and it was filed before this Court on 24.04.2019 and as per the stamp reporting, there was delay of 39 days and limitation was condoned by this Court in IA No. 2829 of 2020 and thereafter this matter has remained pending. 4. The Order dated 22.03.2024 is quoted as under: “Nobody appears on behalf of the petitioner. 2. Learned counsel for the opposite parties are present.
Decision
3. The learned counsels for the opposite parties have jointly submitted that the present petition is not maintainable as the impugned order is a judgment of acquittal. The learned counsels for the opposite parties have submitted that the appeal under 372 proviso is maintainable in the light of the recent judgment of the Hon’ble Supreme Court in the case of Joseph Stephen Vs. Santhanasamy reported in (2022) 13 SCC 115 decided on 25.01.2022. 1 4. However, in order to give one more opportunity to the petitioner by way of last indulgence, post this case on 18.04.2024 for ‘Orders’.” 5. The perusal of the records of this case indicates that the petitioner before this Court is the informant of the case which was numbered as GR Case No.3548 of 2012, arising out of Parsudih PS case no.309 of 2012. The accused was convicted and the appellate court in Criminal Appeal No. 121 of 2017 has passed an order of acquittal and has set aside the judgment and conviction and sentence. It is submitted that in view of the judgment passed in the case of Joseph Stephen and others Vs. Santhanasamy and others, reported in (2022) 13 SCC 115, decided on 25.01.2022, the present revision is not maintainable. 6. This Court finds that in the judgment passed by the Hon’ble Supreme Court in the case of Joseph Stephen (Supra), the case was under the various provision of Indian Penal Code; the trial court had partly acquitted and partly convicted the accused against which both, the victim as well as the convicts, had filed separate appeals and the Appellate Court had acquitted the accused. Against order of the Appellate Court a revision application was filed by the victim before the High Court. The concerned High Court in its revisional jurisdiction had set aside the judgment passed by the Appellate Court and restored the judgment passed by the trial court with modification of sentence. The Hon’ble Supreme Court has held that the revision was not maintainable. Paragraph 10, 10.1 and 10.2 of the aforesaid judgement are quoted as under: - “10. Now so far as issue no.2, namely, in a case where no appeal is brought though appeal lies under the Code, whether revision application still to be entertained at the instance of the party who could have appealed, the answer lies in sub-section (4) of Section 401 Cr.P.C. itself. Sub-section (4) of Section 401 Cr.P.C. reads as under: “(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.” 10.1 It cannot be disputed that now after the amendment in Section 372 Cr.P.C. after 2009 and insertion of proviso to Section 372 Cr.P.C., a victim has a statutory right of appeal against the order 2 of acquittal. Therefore, no revision shall be entertained at the instance of the victim against the order of acquittal in a case where no appeal is preferred and the victim is to be relegated to file an appeal. Even the same would be in the interest of the victim himself/herself as while exercising the revisional jurisdiction, the scope would be very limited, however, while exercising the appellate jurisdiction, the appellate Court would have a wider jurisdiction than the revisional jurisdiction. Similarly, in a case where an order of acquittal is passed in any case instituted upon complaint, the complainant (other than victim) can prefer an appeal against the order of acquittal as provided under sub-section (4) of Section 378 Cr.P.C., subject to the grant of special leave to appeal by the High Court. 10.2 As observed by this Court in the case of Mallikarjun Kodagali (supra), so far as the victim is concerned, the victim has not to pray for grant of special leave to appeal, as the victim has a statutory right of appeal under Section 372 proviso and the proviso to Section 372 does not stipulate any condition of obtaining special leave to appeal like subsection (4) of Section 378 Cr.P.C. in the case of a complainant and in a case where an order of acquittal is passed in any case instituted upon complaint. The right provided to the victim to prefer an appeal against the order of acquittal is an absolute right. Therefore, so far as issue no.2 is concerned, namely, in a case where the victim and/or the complainant, as the case may be, has not preferred and/or availed the remedy of appeal against the order of acquittal as provided under Section 372 Cr.P.C. or Section 378(4), as the case may be, the revision application against the order of acquittal at the instance of the victim or the complainant, as the case may be, shall not be entertained and the victim or the complainant, as the case may be, shall be relegated to prefer the appeal as provided under Section 372 or Section 378(4), as the case may be. Issue no.2 is therefore answered accordingly.” 25. Upon perusal of paragraph 10.2, from the aforesaid judgment, this Court finds that Hon’ble Supreme Court has clearly held that in a case where the victim and/or the complainant, as the case may be, has not preferred and/or availed the remedy of appeal against the order of acquittal as provided under Section 372 Cr.P.C. or Section 378(4), as the case may be, the revision application against the order of acquittal at the instance of the victim or the complainant, as the case may be, shall not be entertained and the victim or the complainant, as the case may be, shall be relegated to prefer the appeal as provided under Section 372 or Section 378(4), as the case may be. It has also been held that the revision application against the order of acquittal at the instance of the victim or the complainant, as the case may be, shall not be entertained and the victim or the complainant shall be relegated to prefer an appeal as provided under Section 372 or 378 (4) of Cr.P.C. as the case may be.” 3 7. In light of the aforesaid judgment passed by the Hon’ble Supreme Court in the case of Joseph Stephen (supra), this Court finds that the present revision is not maintainable. Accordingly, this revision is dismissed as not maintainable. 8. However, liberty is reserved with the petitioner to take appropriate steps in accordance with law. 9. Upon being approached by the petitioner, the office is directed to return a certified copy of the judgment passed by the concerned court in this proceeding, being replaced by a true copy/photocopy of the said judgment. Saurav (Anubha Rawat Choudhary, J.) 4