The High Court dismissed a criminal revision petition seeking to convert it into a criminal appeal. The court refused to accept an argument of misapprehension of law due to the petitioner's six-year inactivity following the acquittal.
Disallowed conversion of criminal revision into appeal; petition dismissed as not maintainable.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Criminal Revisional Jurisdiction)
Criminal Revision No. 1098 of 2016
Rohit Kumar Durbey, son of Rajendra Prasad Durbey, resident of Babu Kadeli, PO-Laxmipur, PS-Jama, District-Dumka ... ... Petitioner
... ... Petitioner
Versus
All resident of village-Babu Kadeli, PO-Laxmipur, PS-Jama, DistrictDumka … ... Opposite Parties
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
| For the Petitioner For the State |
------- : Mr. A.K. Choudhary, Advocate : Mr. Suraj Verma, APP |
|---|---|
| For the OPs. | : Mr. Suraj Kishore Prasad, Advocate Mr. Anurag Kashyap, Advocate ------- |
Order No. 11/ Dated: 18th April 2022
In S.C Case No.306 of 2007, the accused were charged under sections 341, 323 and 307 with the aid of section 34 of the Indian Penal Code. Nine witnesses were examined on behalf of the prosecution to support the aforesaid charges framed against the accused. By judgment dated 17th February 2012 in S.C Case No.306 of 2007 the accused Jainath Durbey was convicted and sentenced to S.I for 2 years under section 324 of the Indian Penal Code and S.I for one month under section 341 of the Indian Penal Code. Other accused were convicted and sentenced to S.I for one year under section 323 of the Indian Penal Code and S.I for one month under section 341 of the Indian Penal Code.
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Criminal Revision No. 1098 of 2016
the Indian Penal Code.
4. The learned appellate Court has observed as under:
“10. That on bare perusal of all the witnesses, I found that prosecution has not proved the place of occurrence and doctor also given opinion that both injuries may be caused by fallen, both parties are own agnats, IO clearly admitted at para-9 of cross-examination that informant has not been given such statements before me. Accused persons assaulted his mother by fists and slaps. Meaning thereby the story of prosecution is being doubtful. It is also clear that no any farsa was used by the appellant no.1 what stated by the prosecution are vital contradiction. That which is created great doubt to the prosecution case. So, the benefit of doubt be given to the appellant.
11. Under this circumstance, when doubt is created, benefit of doubt must be given to the accused. Hence, there is illegality or irregularities in the findings of the learned court below. Learned court below has not appreciated the evidence of prosecution. It is also important to thing the statement of informant and genesis of prosecution vital different. Hence, the judgment passed by the learned court below is irrelevant and incorrect. In my opinion, the judgment and order passed by the learned court below may be set aside.
12. In result:- This Criminal Appeal is hereby allowed and impugned Judgment & order is hereby set aside. That the appellants are acquitted from the charges leveled against them and they and their bailors are discharged from the liabilities of bail bond. Let the copy of this order be sent to the court below for information and needful.”
3 Criminal Revision No. 1098 of 2016
2022 SCC OnLine SC 90 to submit that in view of the provisions under sub-section (5) to section 401 of the Code of Criminal Procedure the present criminal revision petition may be converted into under criminal appeal.
“24. Now so far as the power to be exercised by the High Court under sub-section (5) of Section 401, Cr.P.C., namely, the High Court may treat the application for revision as petition of appeal and deal with the same accordingly is concerned, firstly the High Court has to pass a judicial order to treat the application for revision as petition of appeal. The High Court has to pass a judicial order because sub-section (5) of Section 401 Cr.P.C. provides that if the High Court is satisfied that such revision application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do. While treating with the application for revision as petition of appeal and deal with the same accordingly, the High Court has to record the satisfaction as provided under sub-section (5) of Section 401 Cr.P.C. Therefore, where under the Cr.P.C. an appeal lies, but an application for revision has been made to the High Court by any person, the High Court has jurisdiction to treat the application for revision as a petition of appeal and deal with the same accordingly as per sub-section (5) of Section 401 Cr.P.C., however, subject to the High Court being satisfied that such an application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do and for that purpose the High Court has to pass a judicial order, may be a formal order, to treat the application for revision as a petition of appeal and deal with the same accordingly.”
(Shree Chandrashekhar, J.)
R.K.
2 issues framed by the court
Whether a criminal revision petition instituted after long delay can be converted into a criminal appeal under Section 401(5) Cr.P.C.
Whether the petitioner filed the petition under an erroneous belief preventing an appeal under Section 372 Cr.P.C.
Colour shows how this judgement treated each authority
Joseph Stephen & Ors. v. Santhanasamy & Ors.Referred¶30
Joseph Stephen & Ors. v. Santhanasamy & Ors.
3 provisions across 1 enactments
Rohit Kumar Durbey
State of Jharkhand
Jainath Durbey
Narayan Durbey
Chandan Durbey
Dhayani Devi
Shree Chandrashekhar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
