JOSEPH STEPHEN AND OTHERS versus SANTHANASAMY AND OTHERS

Citation: [2022] 8 S.C.R. 182 · Decided: 25-01-2022 · Supreme Court of India · Bench: M.R. SHAH · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
[2022] 8 S.C.R.
[2022] 8 S.C.R. 182
182
JOSEPH STEPHEN AND OTHERS
v.
SANTHANASAMY AND OTHERS
(Criminal Appeal Nos. 90-93 of 2022)
JANUARY 25, 2022
[M. R. SHAH AND SANJIV KHANNA, JJ.]
Code of Criminal Procedure, 1973: s.401 – Whether in
exercise of revisional jurisdiction under s.401, High Court can
convert a finding of acquittal into one of conviction and what is the
procedure to be followed by the High Court – Held: sub-section (3)
of s.401 prohibits/bars the High Court to convert a finding of
acquittal into one of conviction – Though the High Court has
revisional power to examine whether there is manifest error of law
or procedure etc., however, after giving its own findings, on the
findings recorded by the court acquitting the accused and after
setting aside the order of acquittal, the High Court has to remit the
matter to the trial Court and/or the first appellate Court, as the
case may be.
Code of Criminal Procedure, 1973: s.401 – In a case where
no appeal is brought though appeal lies under the Code, whether
revision application still is to be entertained at the instance of the
party who could have appealed – Held: In a case where the victim
and/or the complainant, as the case may be, has not preferred and/
or availed the remedy of appeal against the order of acquittal as
provided under s.372 or s.378(4), as the case may be, the revision
application against the order of acquittal at the instance of the
victim or the complainant, as the case may be, shall not be entertained
and the victim or the complainant, as the case may be, shall be
relegated to prefer the appeal as provided under s.372 or s.378(4),
as the case may be.
Code of Criminal Procedure, 1973: s.401(5) – Power of High
Court under sub-section (5) of s.401 to treat the application for
revision as petition of appeal – Held: Where under the Cr.P.C. an
appeal lies, but an application for revision has been made to High
Court by any person, High Court has jurisdiction to treat the
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application for revision as a petition of appeal and deal with the
same accordingly as per sub-section (5) of s.401, however, subject
to the High Court being satisfied that such an application was made
under the erroneous belief that no appeal lies thereto and that it is
necessary in the interest of justice so to do and for that purpose the
High Court has to pass a judicial order, may be a formal order, to
treat the application for revision as a petition of appeal and deal
with the same accordingly.
Allowing the appeals and remitting the matter to High Court,
the Court
HELD: 1. On a plain reading of sub-section (3) of Section
401 Cr.P.C., it has to be held that sub-section (3) of Section 401
Cr.P.C. prohibits/bars the High Court to convert a finding of
acquittal into one of conviction. Though the High Court has
revisional power to examine whether there is manifest error of
law or procedure etc., however, after giving its own findings on
the findings recorded by the court acquitting the accused and
after setting aside the order of acquittal, the High Court has to
remit the matter to the trial Court and/or the first appellate Court,
as the case may be. If the order of acquittal has been passed by
the trial Court, the High Court may remit the matter to the trial
Court and even direct retrial. However, if the order of acquittal
is passed by the first appellate court, in that case, the High Court
has two options available, (i) to remit the matter to the first
appellate Court to rehear the appeal; or (ii) in an appropriate
case remit the matter to the trial Court for retrial and in such a
situation the procedure as mentioned in paragraph 11 of the
decision in K. Chinnaswamy Reddy can be followed. Therefore,
in the present case, the High Court has erred in quashing and
setting aside the order of acquittal and reversing and/or
converting a finding of acquittal into one of conviction and
consequently convicted the accused, while exercising the powers
under Section 401 Cr.P.C. The order of conviction by the High
Court, while exercising the revisional jurisdiction under Section
401 Cr.P.C., is therefore unsustainable, beyond the scope and
ambit of Section 401 Cr.P.C., more particularly sub-section (3) of
Section 401 Cr.P.C. [Para 9][194-F-H; 195-A-C]
JOSEPH STEPHEN AND OTHERS v. SANTHANASAMY AND
OTHERS
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SUPREME COURT REPORTS
[2022] 8 S.C.R.
2.1 It cannot be disputed that now after the amendment in
Section 372 C

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