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Friday, November 8, 2013

Revision powers of Sessions Court = Neither the Sessions Court nor the High Court has any power to convert finding of acquittal recorded by the Magistrate into one of conviction, while exercising jurisdiction under Section 397 Cr.P.C. in a revision petition. = Vavilapalli Ramesh,S/o.Satyanarayana & another. GiradaRama Rao, S/o.Late Thavitayya& another. Reported in http://judis.nic.in/judis_andhra/qrydispfree.aspx?filename=7696

 Revision powers of Sessions Court = Neither the Sessions Court nor the High Court has any
power to convert finding of acquittal recorded by the Magistrate into one of
conviction, while exercising jurisdiction under  Section 397 Cr.P.C. in a
revision petition.  =

"399.  Sessions Judge's powers of revision:--(1) In the case of any proceeding
the record of which has been called for by himself, the Sessions Judge may
exercise all or any of the powers which may be exercised by the High Court under
sub-section (1) of Section 401.

(2) Where any proceeding by way of revision is commenced before a Sessions Judge  
under sub-section(1), the provisions of sub-sections (2), (3), (4) and (5) of
Section 401 shall, so far as may be, apply to such proceeding and references in
the said sub-sections to the High Court shall be construed as references to the
Sessions Judge. 
(3) Where any application for revision is made by or on behalf of any person
before the Sessions Judge, the decision of the Sessions Judge thereon in
relation to such person shall be final and no further proceeding by way of
revision at the instance of such person shall be entertained by the High Court
or any other Court."


"400.  Power of Additional Sessions Judge:--  An Additional Sessions Judge shall
have and may exercise all the powers of a Sessions Judge under this chapter in
respect of any case which may be transferred to him by or under any general or
special order of the Sessions Judge."


5.      As per Section 399(1) Cr.P.C., the Session Judge may exercise all or any
of the powers, which the High Court is empowered to exercise under Section
401(1) Cr.P.C.  Section 401(1) reads as follows:

"High Court's powers of revision:-- (1) In the case of any proceeding the record
of which has been called for by itself or which otherwise comes to its
knowledge, the High Court may, in its discretion, exercise any of the powers
conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court
of Session by section 307, and, when the Judges composing the Court of Revision
are equally divided in opinion, the case shall be disposed of in the manner
provided Section 392."


6.      The powers under Sub-section(1) of Section 401 Cr.P.C. are restricted by
Sub-Sections (2) to (5) thereof and they read as follows:
        "401 (2).       No order under this section shall be made to the prejudice of
the accused or other person unless he has had an opportunity of being heard
either personally or by pleader in his own defence.
                (3).    Nothing in this section shall be deemed to authorize a High
Court to convert a finding of acquittal into one of conviction.
                (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.
                (5).    Where under this Code an appeal lies but an application for
revision has been made to the High Court by any person and the High Court is
satisfied that such 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, the High Court may treat the application for revision as a petition of
appeal and deal with the same accordingly."     


neither the Sessions Court nor the High Court has any
power to convert finding of acquittal recorded by the Magistrate into one of
conviction, while exercising jurisdiction under  Section 397 Cr.P.C. in a
revision petition.  
In that view of the matter, the impugned judgment passed by
the Additional Sessions Judge, Srikakulam converting the finding of acquittal
recorded by the Judicial Magistrate of the First Class, Rajam into one of
conviction insofar as the petitioners/A2 and A3 are concerned for the offences
punishable under Sections 325 and 324 I.P.C. respectively, is without
jurisdiction.  
The Additional Sessions Judge passed the impugned judgment
without noticing the limitations in a revision petition filed by a party who is
the de facto complainant as against finding of acquittal recorded by the
Magistrate.

        8.      In the result, the Criminal Petition is allowed setting aside the
judgment dated 22.06.2009 passed by the Additional Sessions Judge, Srikakulam in 
C.R.P.No. 36 of 2007 insofar as the petitioners 1 and 2/A2 and A3 are concerned.

THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU            
CRIMINAL PETITION No.5120 of 2009  

14-03-2011

Vavilapalli Ramesh,S/o.Satyanarayana & another.

GiradaRama Rao, S/o.Late Thavitayya& another.

Council for Petitioner: P.Sridhar Reddy

Council for Respondent: Public Prosecutor

:ORDER:

        This criminal petition is filed by A2 and A3 questioning judgment of the
Additional Sessions Judge, Srikakulam, dated 22.06.2009 passed in C.R.P.No.36 of
2007.

        2.      Originally the State represented by the Sub-Inspector of Police,
Santhakaviti Police Station of Srikakulam District filed CC.No.212 of 2004
against A1 to A5 alleging offences under Sections 325, 324,323/34 I.P.C. in the
Court of Judicial Magistrate of the First Cass, Rajam.  The said Magistrate by
judgment dated 19.02.2007 found A1 to A5 not guilty of the said offences and
acquitted them after full trial.  As against the said acquittal, the de facto
complainant/1st respondent herein filed C.R.P.No.36 of 2007 in the Sessions
Court, Srikakulam under Section 397 Cr.P.C.  The Additional Sessions Judge,
Srikakulam by the impugned judgment in CR.P.No.36 of 2007 passed the following:

        " In view of my findings on Points 1 and 2 above, I set aside the judgment
of the trial Court partly so far it relates to the acquittal of the accused
Nos.2 and 3 for the offences committed by them against P.W.1(revision
petitioner) by beating him with sticks on his right forearm and head and causing
grievous and simple injuries to him which offences are punishable under sections
325 and 324 of the Indian penal Code respectively and consequently I find
accused No.2 guilty for the offence punishable under Section 325, I.P.C. and
accused No.3 guilty for the offence punishable under Section 324, I.P.C. and
convict them thereunder under Section 248(2),Cr.P.C.  The revision petition so
far it is concerned with the other respondents, is dismissed."


3.      Though the Additional Sessions Judge found A2 guilty of the offence under
Section 325 I.P.C. and A3 guilty of the offence under Section 324 I.P.C. and
convicted them for the said offences, did not choose to pass any sentences.  The
impugned judgment did not say that appropriate sentences will be passed against
them after hearing them with regard to the sentence to be passed against them.

        4.      The Additional Sessions Judge while invoking jurisdiction under
Section 397 Cr.P.C., did not notice the limitations prescribed by law in
relation to revisions filed under Section 397 Cr.P.C.  Section 399 and 400
Cr.P.C. prescribe powers of a Sessions Judge and Additional Sessions Judge to be
exercised in a revision petition and they read as follows:
       
"399.  Sessions Judge's powers of revision:--(1) In the case of any proceeding
the record of which has been called for by himself, the Sessions Judge may
exercise all or any of the powers which may be exercised by the High Court under
sub-section (1) of Section 401.

(2) Where any proceeding by way of revision is commenced before a Sessions Judge  
under sub-section(1), the provisions of sub-sections (2), (3), (4) and (5) of
Section 401 shall, so far as may be, apply to such proceeding and references in
the said sub-sections to the High Court shall be construed as references to the
Sessions Judge. 
(3) Where any application for revision is made by or on behalf of any person
before the Sessions Judge, the decision of the Sessions Judge thereon in
relation to such person shall be final and no further proceeding by way of
revision at the instance of such person shall be entertained by the High Court
or any other Court."


"400.  Power of Additional Sessions Judge:--  An Additional Sessions Judge shall
have and may exercise all the powers of a Sessions Judge under this chapter in
respect of any case which may be transferred to him by or under any general or
special order of the Sessions Judge."


5.      As per Section 399(1) Cr.P.C., the Session Judge may exercise all or any
of the powers, which the High Court is empowered to exercise under Section
401(1) Cr.P.C.  Section 401(1) reads as follows:

"High Court's powers of revision:-- (1) In the case of any proceeding the record
of which has been called for by itself or which otherwise comes to its
knowledge, the High Court may, in its discretion, exercise any of the powers
conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court
of Session by section 307, and, when the Judges composing the Court of Revision
are equally divided in opinion, the case shall be disposed of in the manner
provided Section 392."


6.      The powers under Sub-section(1) of Section 401 Cr.P.C. are restricted by
Sub-Sections (2) to (5) thereof and they read as follows:
        "401 (2).       No order under this section shall be made to the prejudice of
the accused or other person unless he has had an opportunity of being heard
either personally or by pleader in his own defence.
                (3).    Nothing in this section shall be deemed to authorize a High
Court to convert a finding of acquittal into one of conviction.
                (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.
                (5).    Where under this Code an appeal lies but an application for
revision has been made to the High Court by any person and the High Court is
satisfied that such 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, the High Court may treat the application for revision as a petition of
appeal and deal with the same accordingly."     


        7.      As per Section 401(3) Cr.P.C., the High Court has no power to
convert finding of acquittal into one of conviction in a revision petition filed
under Section 397 Cr.P.C.
Having regard to the language employed in Section
399(1) and (2) Cr.P.C. and the limitations provided by Section 401(2) to (5) on
powers of the High Court in a revision petition under Section 401(1),
this Court
is of the opinion that
neither the Sessions Court nor the High Court has any
power to convert finding of acquittal recorded by the Magistrate into one of
conviction, while exercising jurisdiction under  Section 397 Cr.P.C. in a
revision petition.  
In that view of the matter, the impugned judgment passed by
the Additional Sessions Judge, Srikakulam converting the finding of acquittal
recorded by the Judicial Magistrate of the First Class, Rajam into one of
conviction insofar as the petitioners/A2 and A3 are concerned for the offences
punishable under Sections 325 and 324 I.P.C. respectively, is without
jurisdiction.  
The Additional Sessions Judge passed the impugned judgment
without noticing the limitations in a revision petition filed by a party who is
the de facto complainant as against finding of acquittal recorded by the
Magistrate.

        8.      In the result, the Criminal Petition is allowed setting aside the
judgment dated 22.06.2009 passed by the Additional Sessions Judge, Srikakulam in 
C.R.P.No. 36 of 2007 insofar as the petitioners 1 and 2/A2 and A3 are concerned.



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