Ram Prasad Paswan Vs the State of Jharkhand

2. The present revision application is directed against the order and judgment of acquittal dated 11.12.2018 passed in Criminal Appeal No. 59/2018, 63/2018 and 64/2018 by the learned Sessions Judge, Koderma,

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whereby the appeal has been allowed by setting aside the judgment and order dated 30.05.2018 passed against the opposite party Nos. 2 to 10.

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3. Learned counsel for the opposite parties has submitted that the present revision application is not maintainable in view of the judgment passed by the Hon’ble Supreme Court in the case of Joseph Stephen and others versus Santhanasamy and others reported in 2020 Live Law (SC) 83 .

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4. The learned counsel for the petitioner does not dispute the aforesaid submission.

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5. However, he submits that appropriate order be passed for converting this revision into appeal.

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6. After hearing the learned counsel for the parties, this Court finds that the petitioner was the complainant of Complaint Case No. 458/2008. The opposite parties were convicted by the learned trial Court vide judgment and order dated 30.05.2018 passed by the learned SDJM, Koderma for offence under Sections 148, 323, 324 and 452 of the Indian Penal Code. In appeal, the conviction was maintained in connection with offence under Section 323 of the Indian Penal Code with modification of sentence and the conviction for offence under Section 324 of IPC read with Section 149 of IPC, Section 148 of IPC as well as Section 452 of IPC was held to be not sustainable. The complainant has filed this revision challenging the judgement of acquittal for offences under the aforesaid sections of I.P.C.

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7. This revision application has been filed on 31.01.2019 and the impugned order has been passed on 11.12.2018. The revision was filed within time and has remained pending before this Court.

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8. In view of paragraph 10.1 and 10.2 of the aforesaid judgment of the Hon’ble Supreme Court in Joseph Stephen (supra), the petitioner being the complainant and aggrieved by the judgment of acquittal passed by the learned appellate court, the present revision application is not maintainable. Aforesaid Paragraph 10.1 and 10.2 are quoted as under: -

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“ 10.1. It cannot be disputed that now after the amendment in Section 372CrPC after 2009 and insertion of the proviso to Section 372CrPC, 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

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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 378CrPC, subject to the grant of special leave to appeal by the High Court.

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10.2. As observed by this Court in Mallikarjun Kodagali [ Mallikarjun Kodagali v. State of Karnataka , (2019) 2 SCC 752 : (2019) 1 SCC (Cri) 801] , 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 378CrPC 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 ( ii ) 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 372CrPC 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 ( ii ) is therefore answered accordingly.”

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9. However, liberty is reserved with the petitioner to take appropriate steps in accordance with law.

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10. Upon being approached by the petitioner, office is directed to return the certified copy of the judgment passed by the concerned courts in this proceedings upon being replaced by a true/photo copy of such judgments.

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11. Pending I.A., if any, is closed.

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(Anubha Rawat Choudhary, J.)

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Mukul

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Ram Prasad Paswan v. the State of Jharkhand

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Ram Prasad Paswan v. the State of Jharkhand

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