A single judge bench of the Orissa High Court comprising of Justice R.K. Pattanaik dismissed a petition while concluding that the order under Section 256 Cr.P.C. is appealable in nature; a revision cannot lie when the order is to be appealed in terms of Section 378 Cr.P.C. with a special leave applied for by the complainant before this Court; when it cannot exercise powers under Sections 401(5) Cr.P.C. and treat a revision as an application for appeal in view of Section 378(4) Cr.P.C. and lastly, it does not have the inherent jurisdiction or for that matter, suo motu power under Section 401(1) Cr.P.C.
Facts:
Instant petition under Section 482 Cr.P.C. is at the behest of the petitioner questioning the correctness and judicial propriety of the impugned order dated 24th November, 2012 passed in Criminal Revision Petition No.20 of 2012 by the learned 1st Additional Sessions Judge, Berhampur, Ganjam, whereby, order dated 9th August, 2010 in 1CC Case No.132 of 2007 of the learned J.M.F.C., Berhampur was set aside and such challenge is on the grounds inter alia that the same is untenable in law and therefore, deserves to be interfered with and set aside. The complaint in 1CC Case No.132 of 2007 was filed by the opposite party under Section 138 NI Act, wherein, the petitioner entered appearance, however, when it was posted to 9th August, 2010 for hearing, the former did not turn up, as a result of which, the complaint was dismissed and the latter was acquitted under Section 256 Cr.P.C. and the case was closed by the learned J.M.F.C., Berhampur. Against the above order of acquittal, the opposite party preferred a revision which was allowed by the impugned order restoring the complaint to file. The aforesaid decision of the learned 1st Additional Sessions Judge, Berhampur, Ganjam is under challenge which is primarily on the ground that the revision was not maintainable as the order of acquittal under Section 256 Cr.P.C. was to be appealed in terms of Section 378 Cr.P.C.
Observations of the Court:
The court held that the position of law is loud and clear which is to the effect that an order of acquittal under Section 256 Cr.P.C. has to be challenged by an appeal under Section 378 Cr.P.C. subject to a leave granted by the Court.
In the instant case, after the order of acquittal by the learned J.M.F.C., a revision was carried to the Sessions court which resulted in the passing of the impugned order under Annexure-2. In fact, an objection had been raised by the petitioner before the court below vis-à-vis maintainability of revision. However, the Sessions court considered it appropriate to deal with the revision and even directed restoration of the complaint filed by the opposite party. The Sessions court relying upon a decision rendered in Rabindra Behera Vrs. Sridhar Samantaray and others 1995 (II)OLR433 reached at a conclusion that a revision can be entertained in order to do proper justice.
If a special leave is sought for by the complainant in terms of sub-section (4) of Section 378 Cr.P.C. and the same is allowed, then the appeal is admitted and decided according to law. A revision cannot lie if the order is appealable in nature in view of Section 401(4) Cr.P.C. If erroneously a revision is filed when the order is appealable, then in that case, such revision can be treated as an appeal and disposed of as stipulated in Section 401(5) Cr.P.C.
Referring to the aforesaid decision in Rabindra Behera Vrs. Sridhar Samantaray and others 1995 (II)OLR433 ibid, the sessions court entertained the revision and disposed it of on merit and restored the complaint to the file of the court of learned J.M.F.C., Berhampur. In the considered view of the Court, the sessions court fell into error by exercising the revisional power under Section 397 read with Section 399 Cr.P.C. notwithstanding the bar contained in Section 401(4) thereof. If at all a revision is to be treated as an appeal as per Section 401(5) Cr.P.C., it can only be by High Court in case of an order of acquittal under Section 256 Cr.P.C. since because a Sessions court cannot entertain an appeal under Section 378 Cr.P.C.
In other words, in case of an order of acquittal in a proceeding instituted upon complaint, an application for special leave shall have to be moved before the High Court by the complainant. Such an exercise can only be undertaken by approaching the High Court and in case, special leave to appeal is refused, no appeal from that order of acquittal shall lie under Section 378 (1) or (2) Cr.P.C. However, if the order is not appealable, a revisional court is having ample jurisdiction to rectify the mistake or error and even regularize a proceeding and not otherwise, when an appeal is to lie from such an order and furthermore, it cannot exercise jurisdiction under Section 401(5) Cr.P.C. to the extent and with reference to Section 378 Cr.P.C. where an occasion may arise for this Court alone to treat a revision as an appeal. Since this Court is possessed of the jurisdiction under Section 482 Cr.P.C., it has also the powers to pass appropriate orders and issue directions to do ex debitio justicia, a jurisdiction which does not lie with a Sessions court.
A Sessions court again does not have the suo motu power alike this Court which is clearly evident from the expression ‘the record of which has been called for by itself or which otherwise comes to its knowledge’ (italicized to emphasize the existence of suo motu power of this Court which a Sessions court does not possess) employed in Section 401(1) Cr.P.C.
Thus, the sessions court below could not have entertained the revision for the following reasons, such as, the order under Section 256 Cr.P.C. is appealable in nature; a revision cannot lie when the order is to be appealed in terms of Section 378 Cr.P.C. with a special leave applied for by the complainant before this Court; when it cannot exercise powers under Sections 401(5) Cr.P.C. and treat a revision as an application for appeal in view of Section 378(4) Cr.P.C. and lastly, it does not have the inherent jurisdiction or for that matter, suo motu power under Section 401(1) Cr.P.C. In the ultimate analysis, it can be said that the Sessions court instead of restoring the complaint should have directed the opposite party to approach this Court in appeal as per and in accordance with Section 378(4) Cr.P.C.
Decision:
The petition stood dismissed for the reasons discussed herein above.
Case: P. Ananda Rao @ Ananda Rao vs. R. Krishore Patanaik
Citation: CRLMC No.3973 of 2012
Coram: Justice R.K. Pattanaik
Date Of Judgment: 01.11.2022
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