Gauhati High Court
Page No.# 1/5 vs Bidyut Bhattacharjee And Anr on 5 October, 2023
Page No.# 1/5
GAHC010224572023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A(Crl) 962/2023 in Crl.Rev.P./438/2023
TAIMUR RAJA CHOUDHURY AND ANR.
S/O LATE MOSHAID ALI CHOUDHURY VILL- GHANIWALA
MALUGRAM P.O. SILCHAR
P.S. SILCHAR (SADAR) DIST. CACHAR
ASSAM
2: SRI RIPON NATH
S/O LATE RANJIT KR. NATH VILL- GHANIWALA
MALUGRAM P.O. SILCHAR
P.S. SILCHAR (SADAR) DIST. CACHAR
ASSAM
VERSUS
BIDYUT BHATTACHARJEE AND ANR.
S/O LATE BIRENDRA KUMAR BHATTACHARJEE R/O KANAKPUR PART-II P.S.
SILCHAR DIST. CACHAR
ASSAM
2:THE STATE OF ASSAM
TO BE REP. BY THE PP
ASSAM
------------
Advocate for : MR H R A CHOUDHURY
Advocate for : PP
ASSAM appearing for BIDYUT BHATTACHARJEE AND ANR.
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BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
Date : 14.10.2023
1. Heard Mr. H.R.A Choudhury, learned senior counsel assisted by
Mr. I.U. Chowdhury, learned counsel for the applicants.
2. This interlocutory application has been filed by the applicants
1. Taimur Raja Choudhury & 2. Sri Ripon Nath praying for staying the
further proceeding of CR Case No.370/2014 pending before the Court
of learned Judicial Magistrate First Class, Cachar at Silchar.
3. The applicants have filed a connected Criminal Revision which
is registered as Crl.Rev.P 438/2023 wherein they have impugned the
order dated 04.08.2023 passed in Criminal Revision Case No.30/2021
by the learned Sessions Judge, Cachar, Silchar whereby the said
revision was allowed by setting aside the order of acquittal dated
05.01.2021 passed by the learned JMFC, Cachar in CR Case
No.370/2014.
4. Mr. HRA Choudhury, learned senior counsel for the petitioner
has submitted that the respondent No.1 had filed a complaint case
against the present petitioner which was registered as CR Case
No.370/2014 and which was pending before the Court of learned
JMFC, Cachar, Silchar.
5. It is further submitted that on 05.01.2021 the respondent
No.1 who was also a complainant of the said case was absent before
the Court without any steps and accordingly by the order dated
05.01.2021, the court of the learned JMFC dismissed the said case for
default due to non appearance of the complainant side and acquitted
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the two accused persons i.e., the present petitioners. It is further
submitted by the learned counsel for the petitioner that though
against an order of acquittal proper relief for the respondent would
have been an appeal under section 378 Clause 4 of the Code of
Criminal Procedure, however, he preferred a revision before the Court
of learned Sessions Judge, Cachar and learned Sessions Judge by
order dated 04.08.2023, which is impugned in the connected revision
petition, has set aside the order of acquittal and remanded back the
complaint case to the learned Court of JMFC, Cachar.
6. Mr. Choudhury, learned senior counsel has submitted that the
Court of learned Sessions Judge while passing the impugned order
has acted beyond jurisdiction as no revision lies against the order of
dismissal for default and acquittal of the petitioner under section 256
of the Code of Crminal Procedure.
7. In support of his submission learned senior counsel for the
petitioner has cited a ruling of this court in Hussain Ahmed
Barbhuiya and Others Vs. Faizur Rahman Choudhury and
Another reported in 2013 (5) GLT 21, wherein it has been
observed as follows:
"It is clear from above that the learned trial Court having
acquitted the accused persons by judgment and order dated
23.5.2002 in a complaint case, it was open for the
complainant to prefer appeal before this Court under Section
378 (4) of the Cr.P.C after obtaining necessary leave of this
Court. Although an appeal lies against the judgment of
acquittal passed by the trial magistrate in a complaint case,
the complainant chose not to prefer any appeal and rather
filed a Revision Petition before the learned Sessions Judge.
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The power of revision has been vested in the Court of
Sessions under section 399 of the Cr.P.C Section 399(2) of the
Cr.P.C provides that the provisions of sub-sections (2) (3), (4),
(5) of section 401 apply to a proceeding under section 399
before the learned Sessions Judge as far as practicable. Since
section 401 Clause (4) Cr.P.C applies to a revision, pending
before the learned Sessions Judge under section 399 Cr.P.C
the Criminal revision filed before the learned Sessions Judge
was not maintainable and as such the learned Sessions
Judge committed jurisdictional error in entertaining the
revision petition and therefore, in allowing the same."
8. Accordingly, the learned senior counsel for the petitioner has
prayed for stay of the impugned order dated 04.08.2023 passed by
the learned Sessions Judge in Criminal Revision No.30/2021 and
further proceeding of the CR Case No.370c/2014.
9. After considering the submissions made by the learned
counsel for both the sides and after perusing the case records and the
materials available on record, prima facie it appears that the revisional
jurisdiction under section 397 of the Code of Criminal Procedure is
barred against an order of acquittal under section 256 of the Code of
Criminal Procedure and the appropriate relief appears to be under
section 378 Clause 4 of the Code of Criminal Procedure, 1973.
10. In view of the above, in the interim, the impugned order dated
04.08.2023 passed in Crl. Revision No.30/2021 as well as further
proceeding of the CR Case No.370c/2014 is stayed till next returnable
date.
11. Issue notice.
12. As regards the respondent No.2 Ms. Bora, learned Addl. PP
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received notice therefore, no formal noticed need be served to the
respondent No.2, however, as regards the respondent No.1 the
petitioner shall take steps for issuance of notice by Registered Post
with A.D as well as through usual process within 3 (three) days
returnable by four weeks.
JUDGE
Comparing Assistant
