The State Of Maharashtra vs Chandrabhagabai W/O Baburao Mane ...
2004 Latest Caselaw 166 Bom

ORDER

1. A legal question of some importance arises in this revision application; Whether this Court can issue suo motu show cause notice against the order of acquittal recorded against the accused by the trial Court in the absence of any appeal against the order of acquittal filed by the State. The said question arises in the following circumstances:

2. The respondents were charged for the offences under Sections 302, 452 and 323 read with Section 34 of IPC along with two other accused persons in Sessions Case No. 48 of 1984 which was tried in Sessions Court at Satara. The learned Additional Sessions Judge Satara by his judgment and order dated 22nd September, 1987 held that the prosecution had miserably failed to prove the offence of murder punishable under Section 302 of IPC against any of the four accused. However, by the said judgment and order, the Sessions Court convicted the respondents-original accused No. 1 and 2 for the offence under Section 325 read with Section 34 of IPC and sentenced them to suffer R.I. for one year and to pay a fine of Rs. 300/- each in default to suffer R.I. for one month. The other two accused i.e. accused Nos. 3 and 4 were convicted by the said judgment and order for offence under Section 325 read with Section 109 of IPC and they were sentenced to R.I. for one year and to pay a fine of Rs. 300/- each in default to suffer R.I. for one month. All the four accused preferred criminal appeal No. 984 of 1987 before this Court against the aforesaid order of conviction and sentence recorded against them by the Sessions Court. The said appeal came up for admission before the learned Single Judge of this Court (Coram: Mehta, J.) who while admitting the said appeal on 14th October, 1987, was suo motu pleased to direct to issue show cause notice why accused Nos. 1 and 2 i.e. the respondents in this revision application, should not be convicted under Section 302 of IPC.

3. The order of the Court dated 14th October, 1987 is as follows:

"Admit. Issue Suo Motu show cause Notice why accused 1 and 2 should not be convicted under Section 302 IPC. Same bail. Fresh bonds".

Pursuant to the said direction, the office of the High Court issued notice to the respondents to show cause not only, why they should not be convicted under Section 302 of IPC but also to show cause why the sentence imposed upon them by the lower Court, should not be enhanced. Though the learned Single Judge had directed to issue show cause notice against the order of acquittal under Section 302 of IPC, the office of the High Court went a step further and in addition issued show cause notice for enhancement of their sentence also i.e. the sentence of R.I. for one year and the fins amount imposed by the lower Court under Section 325 of IPC against them. Mr. Hudlikar seeks to challenge the said show cause notices issued to the Respondents.

4. When the Court had directed to issue show cause notice against the order of acquittal of the Respondents under Section 302 of IPC, the office of the High Court had no business to issue shot cause notices for enhancement of the sentence imposed against the respondents under Section 325 of IPC as well in addition to issuing show cause notices against their acquittal under Section 302 of IPC. In compliance of the order of the learned Single Judge, the office of the High Court, ought to have restricted itself to issue show cause notices with regard to the acquittal order under Section 302 of IPC only and not in addition issued show cause notices for enhancement against the respondents. Thus, the show cause notices issued against the respondents for enhancement of the sentence is clearly ultra vires the direction given by the learned Single Judge and is required to be quashed and set aside being in excess of the power conferred by the order of the learned Single Judge of this Court.

5. The next question is whether this Court has got power to issue show cause notice suo motu with regard to the acquittal of the accused by the trial Court in the absence of any appeal preferred in that respect by the State or the complainant, on the analogy of the issuance of suo motu show cause notice by this Court for enhancement of the sentences. In case the sentence imposed by the lower Court is inadequate, Section 377 of Criminal Procedure Code entitles the State Government or the prosecuting agency to appeal to this Court against the order of sentence i.e. the appeal for enhancement of sentence imposed by the lower Court. Section 378 of Code of Criminal Procedure entitles the State Government or the prosecuting agency to file an appeal in this court against the order of acquittal recorded by the lower Court. None of the said provisions empowers this Court to issue suo motu show cause notices for the enhancement of the sentence or against the order of acquittal. Section 401 of Criminal Procedure Code lays down High Court's powers of the revision which is worded as follows:

401. 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 by Section 392.

(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 authorise 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."

6. Sub-section (1) of Section 401 of Code of Criminal Procedure empowers the High Court in its discretion to exercise any powers conferred on a Court of appeal by Sections 386, 389, 390 and 391 of Code of Criminal Procedure.

Sub-section (3) of the said Section, debars this Court to convert the finding of acquittal into one of conviction.

Sub-section (4) of the said Section, debars this Court from entertaining a revision application against an order when the party applying for revision is entitled to prefer an appeal.

7. Sub-section (1) of Section 401 of Code of Criminal Procedure empowers High Court to pass in its discretion any order which can be passed in exercise of powers conferred on a Court of appeal inter alia by Section 386. Section 386 refers to the powers of the High Court in appeals under Section 377 as well as Section 378 of Code of Criminal Procedure i.e. the power of the High Court in an appeal against the sentence preferred by the State Government and appeal filed by the prosecuting agency against the order of acquittal. However, Sub-section (3) of Section 401 of Code of Criminal Procedure expressly debars the High Court from converting a finding of acquittal into one of conviction by virtue of Sub-section (1) of Section 401 of Code of Criminal Procedure.

8. In our view though there appears to be an apparent conflict between Sub-section (1) and Sub-section (3) of Section 401, the bar under Section 401(3) cannot be construed to take away the entire discretionary powers conferred under Section 401(1) on the High Court as regards acquittal orders. Such construction would render the power conferred by Sub-section (1) about acquittal orders otiose. The said provisions can be harmoniously construed to mean that this Court can in its discretion issue show cause notice against the illegal order of acquittal and remand the matter to trial Court to decide it in accordance with law.

9. It is not in dispute that even in the State prosecutions the first informant can file revision application to bring to the notice of this Court the illegalities committed by the trial Court in the absence of any appeal filed by the State against the order of acquittal. In such revision applications also this Court does not covert the acquittal order into conviction obviously due to the bar under Section 401(3) of the Code but remands the matter to the trial Court in case any illegality is noticed in the reasoning of the trial Court. On the said analogy by virtue of Sub-section (1) of Section 401 this Court can suo motu issue show cause notice for setting aside the order of acquittal recorded by the trial Court. In case any illegality is found in the order of the trial Court, this Court, instead of converting the order of acquittal into conviction, being barred under Sub-section (3) of Section 401 can remand the matter to the trial Court for retrial. In that view of the matter we do not find any illegality in issuing suo-motu notice by this Court against the accused for showing cause why the order of acquittal should not be set aside. We have earlier held that the office of the High Court had exceeded its power in issuing show cause notice for enhancement in the absence of the order passed by the learned Single Judge.

10. In the result the notice of enhancement issued by the office of the High Court is hereby quashed, having been issued in the absence of any direction to that effect by the Court. The show cause notice issued to the respondents-accused in respect of order of acquittal shall be heard along with Criminal Appeal No. 847 of 1987. By consent Criminal Appeal No. 847 of 1987 and the Revision Application No. 400 of 1987 shall be posted for hearing on the board of this Court dated 1st March 2004.