- (1.) This revisional application is directed against the Judgment and order dated the 11th May 1981 passed by the Additional Sessions Judge, First Court, Murshidabad, while exercising his power of revision in connection with a case under Sections 447/147/427 of the IPC. The accused opposite parties Nos. 1 to 9 were charge-sheeted on the aforesaid penal sections and they were facing a trial before the Sub-Divisional Judicial Magistrate, Lalbag, in G. R. Case No. 382 of 1973. The learned Magistrate was pleased to pass an order of acquittal in connection with that case. Being aggrieved thereby the complainant, Hasimuddin Mondal, the present petitioner, filed a revisional application before the learned Sessions Judge. The Additional Sessions Judge who heard the matter dismissed the application on the ground that under S. 378 of the Criminal Procedure Code the aggrieved de facto complainant had a right to move the Hon'ble High Court in appeal against that order of acquittal and as such the Sessions Judge was not competent himself to deal with the matter.
(2.) Mr. Mihir Kumar Roy, learned Advocate appearing for the de facto complainant petitioner, Hasimuddin Mondal invites my attention to Section 399 of the Criminal Procedure Code which lays down inter alia. " 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....... Where any proceeding by way of revision is commenced before a Sessions Judge under sub-section (1), the provisions of sub-sections (2), (3), (4) and (5) of Section 401 shall, so far as may be, apply to such proceeding and references in the said sub-sections to the High Court shall be construed as references to the Sessions Judges". The underlining is mine. I have underlined the words in order to emphasize the contention of Mr. Mihir Kumar Roy made to the effect that under Section 401(3) a High Court's power is almost unlimited except that a High Court cannot convert a finding of acquittal into one of conviction. Mr. Roy continuing his argument submits that the grievance of his client before the Sessions Judge was only confined to the order of acquittal. If the High Court can set aside that order of acquittal, there is no reason why the Sessions Judge will not be entitled to do the same. Mr. Roy's contention boils down to this that the established principle of law is that the powers of a Sessions Judge so far as revisional matters are concerned, are co-extensive with those of the High Court. In this connection Mr. Roy has drawn my attention to the decision Basudeb Mondal v. Dud Kumar Pramanik, reported in (1984) 88 Cal WN 327 where it was observed, inter alia, by His Lordship that "all the powers that can be exercised by the High Court in revision can also be exercised by the Sessions Court under Section 399 of the Criminal Procedure Code".
(3.) On more occasions than one I enquired before Mr. Barindra Nath Roy appearing for the accused opposite parties as to the exact provision in the Criminal Procedure Code which disentitles the learned Sessions Judge from hearing a revisional matter against an order of acquittal on merits. Mr. Barindra Nath Roy has frankly and candidly said that although he has taken great pains in finding out the exact provision, he has failed in his attempt to do so. Mr. Barindra Nath Roy however contends that where an appeal lies before this Hon'ble Court, the aggrieved party ought not to have been allowed to move the Sessions Judge in revision. With respect to Mr. Ray I must say that this contention does not hold good in view of the facts and circumstances of the case.;