- (1.) P. K. Jain, J. Heard Sri M. D. Singh, learned counsel for the revisionist and learned A. G. A. None represented opposite party No. 1.
(2.) REVISIONIST, Janardan Mallah alias Chanardan was prosecuted for offences under Sections 452, 323, 504 and 506, I. P. C. and was acquitted by the trial Magistrate. Complainant, Pashupati Rai filed Criminal Revision No. 133 of 1984 against the judgment and order of acquittal before Sessions Judge, Ghazipur, which was transferred to the IV Addl. Sessions Judge, Ghazipur. The Addl. Sessions Judge, Ghazipur, allowed the revision vide judgment and order dated 28-7-84 setting aside the judgment and order of the trial Court, acquitting the revisionist and remanded the case to the Chief Judicial Magistrate for decision afresh in accordance with law. The order of the revisional court has been challenged in this revision. The sole ground on which the revision is pressed is that the Sessions Judge had no power to set aside the judgment and order of acquittal. In support of his contention learned counsel has relied upon the observations of the Hon'ble Supreme Court in Ramekbal Tiwary v. Madan Mohan Tiwary and another, 1967 A. C. C. (SC) 265, wherein the Hon'ble Supreme Court made following observations: "it is true that the Additional Sessions Judge has no authority to set aside the acquittal of the appellant under the provisions of Section 437, Criminal Procedure Code. " That was a case decided by the Hon'ble Supreme Court before amendment of the Criminal Procedure Code in the year 1973. Prior to the amendment, old Section 437, Cr. P. C. empowered the Sessions Judge to direct a fresh inquiry and order the Magistrate commit the case for trial to the Court of Sessions when the Sessions Judge was of the view that the case was exclusively triable by the Court of Sessions and that an accused person has been improperly discharged by the inferior Court. Under Section 438 of the Code of Criminal Procedure prior to its amendment in the year 1973 the Sessions Judge or District Magistrate, as the case may be, was required to make a report to the High Court with a recommendation that a sentence or an order be reversed or altered, if on examination of the record of the subordinate Court he was satisfied that the order passed by the subordinate Court was not in accordance with law. The law was changed after amendment of the Code of Criminal Procedure in the year 1973. In place of Sections 437 and 438 (1) a new Section 399, Cr. P. C. was substituted. Sub-clause (1) of Section 399, Cr. P. C. (new) provides as follows: "399. Sessions Judge's powers of revision.- (1) in the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub-Section (1) of Section 401. " Thus, the Sessions Judge was empowered to exercise all or any of the powers which could be exercised by the High Court under sub-section (1) of Section 401, Cr. P. C. under Section 401 (1), Cr. P. C. the High Court is empowered to exercise any of the powers conferred on a Court of appeal by Sections 386, 389, 390 and 391, Cr. P. C. under Section 386 (new) the appellate Court has power to reverse an order of acquittal and direct that further inquiry be made, or that the accused may be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law. However, sub-section (3) of Section 401, Cr. P. C. restricts the revisional powers of the High Court in respect of an order of acquittal and specifically provides that nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. Thus, powers of an appellate Court under Section 386, Cr. P. C. can be exercised by the High Court as also the Sessions Judge subject to the restriction imposed by sub-section (3) of S. 40, Cr. P. C.
(3.) IN view of the amendment in the Code of Criminal Procedure in the year 1973 the Sessions Judge has been empowered to exercise the powers which may be exercised by the High Court. IN this view of the matter the contention of the learned counsel for the revisionist cannot be upheld. The other case cited by the learned counsel for the revisionist is Rakalapati Narayana Gajapathi Raju and others v. Bonapalli Peda Appadu and another, 1975 A. C. C. (SC) 281. This case also does not help the revisionist. In this case the Supreme Court held that powers under Section 439 (1), Cr. P. C. (old) could be exercised subject to sub-section (4) of Section 439, Cr. P. C. under which the High Court was not authorised to convert the finding of acquittal into one of conviction while exercising revisional powers under Section 439, Cr. P. C. The Hon'ble Supreme Court, of course, observed that the revisional jurisdiction, when invoked by a private complaint against an order of acquittal ought not to be exercised lightly and that it can be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality or the prevention of a gross miscarriage of justice. It is not all all suggested in the present case that the revisional Court exercised its powers lightly while setting aside the order of acquittal and remanding the case for retrial.;