Supreme Court Latest Judgment- Revisional Jurisdiction Under Section 401 Cr.P.C. 1973

Whether the High Court in the exercise of the revisional jurisdiction under Section 401 Cr.P.C. is justified in setting aside the order of acquittal and convicting the accused by converting the finding of acquittal into one of conviction?;

On a plain reading of sub-section (3) of Section 401 Cr.P.C., it has to be held that sub-section (3) of Section 401 Cr.P.C. prohibits/bars High Court to convert a finding of acquittal into one of conviction.

Though and as observed hereinabove, the High Court has revisional power to examine whether there is a manifest error of law or procedure, etc., however, after giving its own findings on the findings recorded by the court acquitting the accused and after setting aside the order of acquittal, the High Court has to remit the matter to the trial Court and/or the first appellate Court, as the case may be.

As observed by this Court in the case of K. Chinnaswamy Reddy (supra), if the order of acquittal has been passed by the trial Court, the High Court may remit the matter to the trial Court and even direct retrial. However, if the order of acquittal is passed by the first appellate court, in that case, the High Court has two options available, (i) to remit the matter to the first appellate Court to rehear the appeal; or (ii) in an appropriate case remit the matter to the trial Court for retrial and in such a situation the procedure as mentioned in paragraph 11 of the decision in K. Chinnaswamy Reddy (supra), referred to hereinabove, can be followed.

Therefore, in the present case, the High Court has erred in quashing and setting aside the order of acquittal and reversing and/or converting a finding of acquittal into one of conviction and consequently convicted the accused, while exercising the powers under Section 401 Cr.P.C. The order of conviction by the High Court, while exercising the revisional jurisdiction under Section 401 Cr.P.C., is therefore unsustainable, beyond the scope and ambit of Section 401 Cr.P.C., more particularly sub-section (3) of Section 401 Cr.P.C. Issue no.1 is answered accordingly.

ii) In a case where the victim has a right of appeal against the order of acquittal, now as provided under Section 372 Cr.P.C and the victim has not availed such a remedy and has not preferred the appeal, whether the revision application is required to be entertained at the instance of a party/victim instead of preferring an appeal?;

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 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 complainants (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.

Leave a Comment

As per the rules of the Bar Council of India, we are not permitted to solicit work and advertise. The user acknowledges the following:

There has been no advertisement, personal communication, solicitation, invitation, or inducement of any sort whatsoever from us or any of our members to solicit any work through this website;
The user wishes to gain more information about us for his/her own information and use;
The information about us is provided to the user only on his/her specific request and any information obtained or materials downloaded from this website is completely at the user’s volition and any transmission, receipt, or use of this site would not create any lawyer-client relationship.
The information provided under this website is solely available at your request for information purposes only and should not be interpreted as soliciting or advertisement.

We are not liable for any consequence of any action taken by the user relying on material/information provided under this website. In cases where the user has any legal issues, he/she in all cases must seek independent legal advice, as the material contained in this document does not constitute/substitute professional advice that may be required before acting on any matter. Neither this website nor the web pages and the information contained herein constitute a contract or will form the basis of a contract. While every care has been taken in preparing the content of this website and web pages to ensure accuracy at the time of publication and creation, however, Kanoonwala Legal Services assumes no responsibility for any errors, which despite all precautions may be found herein.

Pieces of information provided on this website contain only general information regarding Kanoonwala Legal Services (KLS) and are not intended as a solicitation or an advertisement of its services or any invitation or inducement of any sort. Nothing contained in this website constitutes legal advice or the creation of a lawyer-client relationship. If you have any issues, you must seek legal advice. Kanoonwala Legal Services is not liable for the consequences of any action taken by relying on the material/information provided on this website. For more information, please read our terms of use and our privacy policy. All disputes, if any, are subject to the exclusive jurisdiction of courts in Lucknow, India only.