Bombay High Court
Ambadas Kalidas Panchal vs Pradeep Baswani Appa Badbudri @ ... on 12 December, 2014
Bench: A.M. Thipsay
Tilak 1/4 (903)WP-1895-14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1895 of 2014
Ambadas Kalidas Panchal .. Petitioner
Versus
Pradeep Baswani Appa Badbudri
@ Budkundri and others .. Respondents
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Mr.Santosh G. Shirsat, Advocate for the petitioner.
Ms.S.S.Kaushik, APP for the Respondent State.
ig ---
CORAM : ABHAY M. THIPSAY, J.
DATED : 12th DECEMBER, 2014.
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ORAL ORDER :
1 Rule. By consent, Rule made returnable forthwith.
2 By consent, heard finally.
3 The petitioner is the original First Informant. On the
basis of a complained lodged by him before the Magistrate,
investigation as contemplated under section 156(3) of the Code of
Criminal Procedure (for short 'the Code') was ordered, and a
charge-sheet came to be filed against the respondent nos.1 and 2
herein. The police report alleged that the respondent nos.1 and 2
had committed offences punishable under sections 324 IPC, 323
IPC, 504 IPC, 506 II of the IPC and 389 of the IPC. The learned
Magistrate, after holding a trial, by an order dated 10 th August
2009, acquitted the respondent nos.1 and 2. Being aggrieved
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thereby, the petitioner moved the Court of Sessions in revision,
challenging the order of acquittal as passed by the Magistrate.
The learned Addl. Sessions Judge, who heard the Revision
Application, upheld the acquittal of the respondent nos.1 and 2
with respect to all the alleged offences, except the one punishable
under section 323 of the IPC read with section 34 of the IPC. The
learned Addl. Sessions Judge convicted the respondent nos.1 and
2 of an offence punishable under section 323 IPC read with section
34 of the IPC, and sentenced each of them to pay a fine of
Rs.500/- in default to suffer SI for five days. The petitioner is still
aggrieved, as according to him, the respondent nos.1 and 2 should
have been convicted of the other offences also. He has, therefore,
filed the present petition, invoking the jurisdiction of this Court
under Article 227 of the Constitution. The prayer of the petitioner
is that the order passed by the Court of Sessions in revision, be
quashed, and that either the matter be remanded back to the trial
court for re-framing the charges in respect of the alleged offences,
or in the alternative, the respondent nos.1 and 2 be convicted of
the other offences also, and be appropriately sentenced.
4 It is clear that the respondent nos.1 and 2 were
acquitted after holding a trial. The acquittal was not challenged
by way of any Appeal, but by filing the Revision Application before
the Court of Sessions. In the revision, the Addl. Sessions Judge
converted the finding of acquittal, as recorded by the Magistrate,
into one of conviction. In my opinion, this could have been done
by the Addl. Sessions Judge in view of the provisions of sub-
section (3) of section 401 of the Code.
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4 Since in exercise of revisional jurisdiction, a finding of
acquittal cannot be converted into conviction, the order passed by
the Court of Sessions in revision, is patently illegal, atleast to that
extent. Even though the acquittal in respect of the other charges
has not been disturbed, the acquittal in respect of the offence
punishable under section 323 of the IPC, has been converted into
conviction, and therefore, this amounts to a violation of the
express provisions of sub-section (3) of section 401 read with sub-
section (2) of section 399 and section 400 of the Code.
5 Thus, the impugned order is liable to set aside not on
the grounds alleged by the petitioner, but for the aforesaid
reasons.
6 The only question is what ought to be the proper
order, in the circumstances. In my opinion, since the Court of
Sessions has come to a conclusion that there was evidence against
the respondent nos.1 and 2 with respect to the offence punishable
under section 323 of the IPC, it had an option to direct further
evidence in the matter to be taken, or directing a re-trial.
7 The learned APP submitted that considering the fact
that the offences were allegedly committed in the year 2002, there
would be no point in remanding the matter back to the Court of
Sessions for re-hearing the revision application by keeping the
prohibition to convert a finding of acquittal into one of conviction
in mind.
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8 After considering all the relevant aspects of the
matter, it appears proper to me to remand the matter back to the
learned Addl. Sessions Judge for a re-consideration of the revision
application only to the limited extent of passing appropriate orders
consistent with his conclusion that there was evidence to establish
charge of an offence punishable under section 323 of the IPC read
with section 34 of the IPC against the respondent nos.1 and 2, but
keeping in mind the provisions of section 401(3) of the Code read
with section 399(2) thereof. Needless to say that the revision
application shall be decided afresh, after giving an opportunity to
the respondent nos.1 and 2 herein of being heard in the matter.
The Court of Sessions shall also keep in mind, the propriety of
directing fresh evidence to be taken and/or ordering a re-trial,
when the allegations with respect to the more serious offences had
not been proved.
9 Petition is partly allowed.
10 The impugned order to the extent that it converts the
acquittal of the respondent nos.1 and 2, in respect of the offence
punishable under section 323 IPC read with section 34 of the IPC
into conviction, is set aside.
11 The Court of Sessions shall pass an appropriate order
in that regard, after giving to the respondent nos.1 and 2 herein,
an opportunity of being heard in the matter.
12 Petition is disposed of.
13 Rule is made absolute accordingly.
(ABHAY M.THIPSAY, J)
