Nandabai vs Maruti Gopala Mehetre
2012 Latest Caselaw 267 Bom

                                                                         revn280.00
                                         -1-




                                                                         
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD




                                                 
               CRIMINAL REVISION APPLICATION NO. 280 OF 2000


     Nandabai w/o Popatrao Warat,
     Age 41 years, Occ. Household,




                                                
     R/o. Kedgaon, Tq. Nagar,                             ...Petitioner
     District Ahmednagar                                  (Ori. Complainant)

           Versus




                                     
     1.    Maruti Gopala Mehetre,
           Age 36 years, Occ. Service,
                       
           R/o. Kedgaon, Tq. Nagar
           District Ahmednagar                            (Ori. Accused)
                      
     2.    State of Maharashtra
           (Notice be served on the Public
           Prosecutor, High Court of Bombay
           Bench at Aurangabad)                           ...Respondents
      

                                         .....
     Mr. A.B. Gatne, advocate for the petitioner
     Mr. U.S. Malte with Mr. R.B. Dhaware, advocates for respondent No.1
   



     Mr. N.R. Shaikh, A.P.P. for respondent No.2
                                         .....





                                          CORAM : T. V. NALAWADE, J.

DATE OF RESERVING THE JUDGMENT : 18.10.2012

DATE OF PRONOUNCING

THE JUDGMENT : 25.10.2012

JUDGMENT :-

1. The revision is filed against the judgment and order of appeal

No.9 of 1991 which was pending in the Court of Additional Sessions

Judge, Ahmednagar. The judgment and order of J.M.F.C.

Ahmednagar delivered in R.C.C. No. 158 of 1988 is modified by the

revn280.00

appellate court and the conviction and sentence given to the

respondent-accused is converted from the offence punishable under

Section 325 of I.P.C. to one punishable under Section 323 of I.P.C.

Further the accused is sentenced to pay fine only. This decision is

challenged by the original complainant in the present proceeding. Both

sides are heard. This Court has perused the original record.

2. Learned advocate for the petitioner made a prayer for converting

the present proceeding to criminal appeal. He submitted that in view

of the provisions of section 401(5) of Cr.P.C. such conversion is

possible. He submitted that by the amendment made to Section 372

of Cr.P.C. the right is given to the victim to file such appeal, and so,

such conversion is possible. This submission is opposed by the other

side.

3. For the petitioner, reliance was placed on Articles 20 and 21 of

the Constitution of India. It was submitted that the procedural law can

be given retrospective effect and accused has no right in respect of

procedure which can be followed in criminal case filed against him.

On this port, both sides have cited some reported judgments.

4. In the case reported as AIR 1927 Privy Council 242 (Delhi

Cloth and General Mills Vs. Income Tax Commissioner and

revn280.00

another), the Privy Council has laid down that the provisions touching

existing right are not ordinarily retrospective. The term "existing

rights" is explained by Privy Council and it is laid down that if due to

application of amended provisions, the law would deprive all the

existing finality of orders which, when the statute came into force, were

final, are provisions which touch existing rights. In the case reported as

2010 (12) SCC 599 (National Commission for Woman vs. State of

Delhi and another) the Apex Court, in para 8, has made following

observations:-

"8. Chapter XXIX of the Code of Criminal Procedure deals with "Appeal(s)". Section 372 specifically provides that no appeal shall

lie from a judgment or order of a criminal court except as provided

by the Code or by any other law which authorizes an appeal. The proviso inserted by Section 372 (Act 5 of 2009) with effect from 31.12.2009, gives a limited right to the victim to file an appeal in the

High Court against any order of a criminal court acquitting the accused or convicting him for a lesser offence or the imposition of inadequate compensation. The proviso may not thus be applicable as it came in the year 2009 (long after the present incident) and, in

any case, would confer a right only on a victim and also does not envisage an appeal against an inadequate sentence. An appeal would thus be maintainable only under section 377 to the High court as it is effectively challenging the quantum of sentence."

The other side placed reliance on the case reported as 2012 (4)

Mh.L.J. 760 (Babu Uligappa Batteli vs. State of Maharashtra &

revn280.00

Ors). This Court, Division Bench has squarely dealt with the point

involved in the present case and it is observed by this Court that

amendment to Section 372 of Cr.P.C. came into force on 31.12.2009

and as it has created substantive right in favour of victim, the said

provision cannot apply retrospectively, as there is no provision made

to make the application retrospective.

5. It was submitted for the petitioner that question involved was the

right of third party in the case of National Commission for Woman

(cited supra) and the Apex Court has not squarely dealt with the point

involved in the present case. This Court holds that there is no force in

this submission. The observations made by the Apex Court which are

quoted already, show that they are on two points. The point of

retrospective application of this provision, proviso to Section 372 of

Cr.P.C. is also discussed by the Apex Court. These observations are

binding on this Court.

6. By citing the case reported as 2005 Cr.L.J. 3071 SC (Pratap

Vs. State of Jharkhand), submissions were made for the petitioner

that in criminal law in many cases, retrospective operation is given

even when the right is created. In this reported case, the provisions of

Juvenile Justice Act 2000 are discussed by the Apex Court. The Apex

Court has laid down that this provisions need to be used for the benefit

revn280.00

of Juveniles, the persons who had not completed 18 years of age, on

the date of enforcement of the Act viz. 1.4.2001, and so even in some

pending cases to which this condition applies, the amended provision

can be used. In view of this observation of the Apex Court, it can be

said that when the amendment is intended to mollify the rigorous of

criminal law and particularly when such provisions are in favour of the

juveniles, it needs to be presumed that this provision is in the interest

of society. It does not affect the right of the person, against whom

allegations are made, as the provision is in his favour. This court

holds that such interpretation is not possible in the present case. The

original complainant is requesting for retrospective application and

retrospective application is bound to affect the rights of the accused for

the discussion already made and also for the discussion which is being

made later on.

7. The case reported as 2010 Cri. L.J. 3751, Andhra Pradesh

High Court (Mohit Yadam & Anr. vs. State of Andhra Pradesh &

Ors) was also cited for the petitioner. In this case, the provisions of

Domestic Violence Act 2005 are discussed by the High Court. It is

observed that in view of definition of "Domestic Violence" given in

Section 2(q), previous incidents of domestic violence are covered

under the Act. It needs to be kept in mind that the provisions of

Domestic Violence Act have no direct penal consequence of conviction

revn280.00

and sentence as provided in Article 20 of the Constitution of India and

so such interpretation is possible.

8. The powers of this Court of revision under Section 401 of

Cr.P.C. are very limited. The powers are discussed by the Apex Court

in the case reported as AIR 1951 SC 196 (D. Stephens vs.

Nosibolla). In subsequently decided cases, the powers are discussed

in more particulars when the powers are invoked by the private

complainant against the order of acquittal. In the case reported as

AIR 2010 SC 1140 (Sheetala Prasad and others Vs. Sri Kant and

Anr.) the Apex Court has laid down as follows:-

"Without making the categories exhaustive, revisional jurisdiction can be exercised by the High Court at the instance of private complainant (1) where the trial Court has wrongly shut out

evidence which the prosecution wished to produce, (2) where the admissible evidence is wrongly brushed aside as inadmissible, (3) where the trial Court has no jurisdiction to try the case and has still acquitted the accused, (4) where the material evidence has been

overlooked either by the trial Court or the appellate Court or the order is passed by considering irrelevant evidence and (5) where the acquittal is based on the compounding of the offence which is invalid under the law. By now, it is well settled that the revisional jurisdiction, when invoked by a private complainant against an order of acquittal, cannot be exercised lightly and that it can be exercised only in exceptional cases where the interest of public justice require interference for correction of manifest illegality or the prevention of gross miscarriage of justice. In these cases, or cases

revn280.00

of similar nature, retrial or rehearing of the appeal may be ordered."

In one more case, reported as 2008 Cri. L. J. 1627 SC (Johar

and others vs. Mangal Prasad and another) the Apex Court has

made following observations:-

" For interference in the decision of the trial court, the High

Court is required to point out any error of law on the part of the learned Trial Judge. It is observed that the High court is expected

to point out that any relevant evidence has been left out of its consideration by the Trial Court or irrelevant material has been

taken into consideration. It is observed that if such things are absent, the High Court is not expected to enter into the merits of the matter."

In view of this position of law, this court holds that it is not

possible to convert the revision into appeal. Such conversion will

definitely affect the rights of the accused as at the relevant time the

original complainant had no right to file the appeal.

9. The facts of the present case show that house of the accused is

situated in front of the house of the complainant. The incident took

place on 15.10.1988 at about 7.00 a.m. The wife of the accused was

pouring water in front of her house and this water was going towards

the front portion of the house of the complainant. The complainant

requested the wife of the accused not to pour water and then quarrel

revn280.00

started. The persons from these two families gathered there. During

quarrel, there was pushing and pulling between the husband of the

complainant and the accused Maruti. When the complainant

intervened, the accused gave fist blow on the face of the complainant.

Due to this blow, one tooth of the complainant got uprooted and two

teeth became loose. The complainant went to the police station and

gave a report against the accused and his wife. The crime No. 225 of

88 came to be registered in Nagar Tahsil police station for the offence

punishable under Sections 323, 325, 504 r.w. 34 of I.P.C. The

complainant was referred for medical examination. After completion of

investigation, charge sheet came to be filed for all these offences. The

trial court acquitted the wife of the accused and the accused came to

be convicted for the offence punishable under Section 325 of I.P.C. as

the complainant had lost one tooth. The Sessions Court considered

the circumstance like the scuffle between two male persons of the two

families and has held that there is possibility that injury was not caused

voluntarily.

10. Nanda (P.W.1), the complainant has given evidence that during

the incident, the accused Maruti gave a fist blow on her face and due

to said blow she lost one tooth and two teeth became loose in the

incident. Exh.20, F.I.R. given by the complainant is consistent on the

material points with the substantive evidence. Her evidence shows

revn280.00

that wife of the accused was carrying of 7 months at the time of

incident. Her evidence and evidence of spot panchnama show that

there is channel of drainage of water by the side of the road and on

either side of the road there are houses of these two families. There is

probability that the wife of the accused was pouring the water there, as

there was drainage channel.

11. Popat (P.W.2), husband of the complainant has given similar

evidence. His evidence is that there was scuffle between him and the

accused. His banyan was torn in the incident. It can be said that there

is little bit inconsistency in his version and the version of the

complainant. The complainant has tried to show that the accused had

made Popat to fall on the ground and after that the accused assaulted

Popat when she intervened. The evidence of Popat shows that the

accused was probably only pushing him and in that attempt banyan

got torn.

12. The spot panchnama Exh.23 shows that no blood was found on

the spot. Both the Popat and his wife have given evidence that

neighbours gathered at the spot at the relevant time, however, no such

neighbour is examined by the prosecution to give independent

evidence. Thus, there are versions of the complainant and Popat

which can be called interested versions against the accused. One

revn280.00

Mohan (P.W.5) is examined to prove that tooth was produced by the

complainant and it was seized under panchnama Exh.34 by the police.

Dr. Pramod (P.W.4) is examined to prove that on 25.10.1988, the date

of incident, he had examined the complainant and he had found two

injuries on the face. One injury was caused to lower gum. There was

ex-poliation of right inciser tooth. The age of injury is given as within

six hours. Thus there is circumstantial evidence to corroborate the

evidence of the complainant.

13. The aforesaid circumstances and the evidence show that the

quarrel started out of petty incident. There is possibility that there was

scuffle between male members of the two families, there is possibility

that the complainant tried to separate her husband and the accused

and in that attempt she sustained injury to her face. In such case, it

cannot be said that there was intention on the part of the accused to

cause such injury or he had knowledge that by such act, he was likely

to cause such injury. In view of such probabilities, it can be said that

view taken by the appellate court is possible view. In view of the

position of law already discussed, about the restriction on the power of

this Court, this Court holds that interference is not possible in the

decision of the Sessions Court. So Revision stands dismissed.

*****

revn280.00