Andhra Pradesh High Court – Amravati
Gunnemeda Vijayalaxmi vs Anupam5 It Is Held At Para No.16 As Under on 21 February, 2025
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Dr.YLR, J
Crl.R.C.No.1571 of 2008
Dated 21.02.2025
APHC010179502008
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3521]
(Special Original Jurisdiction)
FRIDAY, THE TWENTY FIRST DAY OF FEBRUARY
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO
CRIMINAL REVISION CASE NO: 1571/2008
Between:
Gunnemeda Vijayalaxmi, W/o. Surya Prakasa Rao, Housewife R/o. 24th
Ward, old Ponnuru, Guntur District.
...PETITIONER
AND
1. Konduru Siva Nageswara Rao, S/o Rama Koteswara Rao, R/o 24th
Ward, Mangalipalem, old Ponnur.
2. Erisetty Lakshmi Lakshmitayar, W/o Late Rama Murthy, R/o. 3rd Lane
Brundavan Gardens, Guntur.
3. The State of A.P, Rep. by The Public Prosecutor, High Court of A.P.,
Hyderabad.
Counsel for the Petitioner:
C. Sharan Reddy
Counsel for the Respondent(S):
1. Harija Akkineni
2. Public Prosecutor
The Court made the following:
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Crl.R.C.No.1571 of 2008
Dated 21.02.2025
ORDER:
De-facto complainant preferred the revision under Sections 397 and
401 of the Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C.,’)
questioning acquittal of respondent Nos.1 and 2 by the judgment dated
11.06.2008 in Sessions Case No. 507 of 2007 on the file of the learned
Sessions Judge, Guntur.
2. I have heard the arguments of the learned counsel for the revisionist
and learned Assistant Public Prosecutor for the respondent.
3. Sri Ismail, the learned counsel for the revisionist submits that even
though the appeal was dismissed by the Division Bench of this Court on
merits, it would not take away the right of the revisionist in preferring the
revision and arguing the matter on merits.
4. Smt. Sumathi, learned counsel representing Smt. Harija Akkineni,
counsel for the respondent No.1 and 2 submitted that the revision is not
maintainable in the view of the judgment of the Hon’ble Supreme Court in K.
Ramachandran v. V.N. Rajan1; the registry should have tagged this revision
petition along with appeal, when the appeal was heard by the learned Division
Bench and urged to dismiss the revision as not maintainable.
1
(2009) 14 SCC 569
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Dr.YLR, J
Crl.R.C.No.1571 of 2008
Dated 21.02.2025
5. Mr K. Sandeep, learned Assistant Public Prosecutor also submits in
similar lines with the learned counsel for the respondent Nos.1 and 2.
6. Thoughtful consideration is bestowed on the arguments advanced by
the learned counsel for the Petitioner and the learned Assistant Public
Prosecutor. I have perused the record.
7. Now the small point for consideration is:
Whether this revision case is maintainable in view of
dismissal of the Appeal, on merits, preferred by the State
against the judgment in S.C.No.507 of 2007 dated
11.06.2008?
8. Before going into the merits of the matter, it is brought to the notice of
this court that the state had preferred an appeal against the impugned
judgment before the Division Bench and the said appeal was dismissed on
merits. In that event, indeed, pendency of this revision ought to have been
brought to the notice of the learned Division Bench and this revision ought to
have been tagged with the Criminal Appeal, when the Criminal Appeal was
coming for disposal.
9. The Hon’ble Supreme Court in K. Ramachandran v. V.N. Rajan at
para Nos. 15 to 24 and 32 held as follows:
“15. We cannot find fault with the learned Single Judge in
proceeding ahead with the revision as it was never brought to the
notice of the learned Single Judge that the appeal against the
same judgment which was impugned in the revision had already
been filed. It was for the appellant-accused to point out that on
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Crl.R.C.No.1571 of 2008
Dated 21.02.2025the date when the revision was heard the fate of the criminal
appeal filed impugning the same judgment was sealed because
of the refusal on the part of the Division Bench to condone the
delay. In fact, it was up to the Government Pleader who was a
common party in both the revision and the appeal to point out to
the learned Single Judge about the dismissal of the condonation
of delay application. Very strangely, the Government Pleader did
not do that.
16. Again, we are at a loss to understand as to how the criminal
revision was left out and was not mentioned before the Division
Bench deciding the question of condonation of delay in appeal
which was filed against the same judgment. In this appeal,
however, the first question which has been raised is about the
dismissal of the statutory appeal preferred by the State and its
effect on the pending revision. The appellant-accused, however,
has conveniently avoided to state in the special leave petition as
to when he came to know about the dismissal of the condonation
of delay application in filing the appeal and how. We cannot,
therefore, find fault with the learned Single Judge’s judgment
who was never apprised of the dismissal of the condonation of
delay application.
17. Similarly, since the order refusing to condone the delay is not
challenged before us, it will not be possible for us to go into that
aspect also. But we must observe that it was the duty of the
State counsel to point out that a revision was already pending
against the same judgment which was challenged in appeal but
which appeal was delayed by more than 800 days at the time
when the application for condonation of delay was considered by
the Division Bench. Since the appellant-accused had not raised
the question about the continuability of the revision before the
High Court, we would not ordinarily allow the counsel for the
appellant-accused to raise that question before us.
18. Though, we must say that an awkward situation has arisen
wherein an appeal against the judgment had failed, though only
on the question of limitation, yet, a revision against the same
judgment, however, continued and was allowed also and all this
happened because of the casual attitude on the part of the State
Government tas also the appellant-accused in not pointing out
the proper facts to the Courts, both to the Division Bench as well
as the learned Single Judge.
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Dr.YLR, J
Crl.R.C.No.1571 of 2008
Dated 21.02.2025
19. The question is undoubtedly important, and hence, though
raised for the first time before us, we propose to decide the
same. An incongruous situation has arisen where, though the
appeal against the acquittal has been dismissed by not allowing
the condonation of delay in filing the same, yet, the revision filed
against the said judgment by the private complainant has not
only survived but such revision has also been allowed.
20. We must observe that the Division Bench in not allowing the
condonation of delay has effectively dismissed the appeal in the
sense that it has not allowed the State Government to proceed
with the appeal for which there was a provision. This was a
prosecution not based on a private complaint but on the police
report. Therefore, the State Government had a right under
Section 378(2) CrPC to file an appeal and very conspicuously
the private party did not have that right. The private complainant,
therefore, could only excite the general powers of revision by the
High Court.
21. Firstly, we must clarify that when the Division Bench
considered the question of condonation of delay in filing the
appeal against acquittal, though technically it was deciding the
application under Section 378(3) CrPC, it was actually the whole
appeal itself which was before it. In this behalf it will have to be
seen that the limitation for filing such appeal at the instance of
the State Government against acquittal is provided by Article 114
of the Limitation Act.
22. It is undoubtedly true that sub-section (3) of Section 378
CrPC specifically provides that the appeal under sub-sections (1)
and (2) cannot be entertained except with the leave of the High
Court and, therefore, an application for leave in such appeal filed
by the State Government is a must. The limitation for filing the
appeal is 90 days from the date of the order while the same
article provides for 30 days of limitation from the date of grant of
special leave. Therefore, what was before the High Court was
the appeal itself and the petitioner prayed the condonation of
delay of 801 days in filing the appeal against acquittal. When the
High Court declined to grant that permission, it, in effect, refused
to entertain the appeal against the order of the trial court, thus
making it final.
23. Now, obviously, if the judgment was rendered final by the
Division Bench of the High Court then there could not be any
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Crl.R.C.No.1571 of 2008
Dated 21.02.2025subsequent order to the contrary by the Single Judge even if the
effect of the pendency of the revision was not brought to the
notice of the Division Bench. There is no review power under the
Criminal Procedure Code to the criminal court including the High
Court. Such a review power exists only in this Court. As such,
once the High Court had passed the order refusing the
condonation of delay of appeal and thereby awarding the finality
to the trial court’s judgment, that order could be considered and
upset only by this Court on a proper appeal having been filed in
this Court by the State Government. As against the State
Government, the order of the trial court acquitting the appellant-
accused had become final. Therefore, the only course left open
then in law was to challenge that order refusing to condone the
delay in filing appeal against acquittal.
24. It is an admitted fact that such appeal challenging the order
passed by the Division Bench was never filed and the order of
the Division Bench became final and has remained final till today.
Under such circumstances, in our considered opinion, the
revision against the same order could not have been entertained,
much less allowed upsetting the finality of the trial court’s
judgment, which finality was confirmed by the order of the High
Court by refusing to condone the delay in filing the appeal
against the same trial court judgment. That would be the true
import of the appellate powers of the High Court.
32. In this particular case, we are of the clear-cut opinion, that
since the trial court’s judgment was given the effect of finality by
the Division bench of the High Court then the learned Single
Judge of that Court could not have reversed that effect and upset
that position.”
10. The Hon’ble Supreme Court in D Stephens v Nosibolla2 at Paragraph No.10
held as under:
“The revisional jurisdiction conferred on the High Court under S. 439,
Cr.P.C., is not to be lightly exercised, when it is invoked by a private
complainant against an order of acquittal, against which the Govt. has o right
of appeal under S. 417. It could be exercised only in exceptional cases
where the interests of public justice require interference for the correction of2
AIR 1951 SC 196
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Dr.YLR, J
Crl.R.C.No.1571 of 2008
Dated 21.02.2025a manifest illegality, or the prevention of a gross miscarriage of justice. This
jurisdiction is not ordinarily invoked or used merely because the lower court
has taken a wrong view of the law or mis-appreciated the evidence on
record.”
11. The Hon’ble Apex Court in K Chinnaswamy Reddy v State of AP 3, at
Paragraph No.7 held as under:
“7. It is true that it is open to a High Court in revision to set aside an order of
acquittal even at the instance of private parties, though the State may not
have thought fit to appeal; but this jurisdiction should in our opinion be
exercised by the High Court only in exceptional cases, when there is some
glaring defect in the procedure or there is a manifest error on a point of law
and consequently there has been a flagrant miscarriage of justice. Sub-
section (4) of S. 439 forbids a High Court from converting a finding of
acquittal into one of conviction and that makes it all the more incumbent on
the High Court to see that it does not, convert the finding of acquittal into one
of conviction by the indirect method of ordering retrial when it cannot itself
directly convert a finding of acquittal into a finding of conviction. This places
limitations on the power of the High Court to set aside a finding of acquittal in
revision and it is only in exceptional cases that this power should be
exercised. It is not possible to lay down the criteria for determining such
exceptional cases which would cover all contingencies. We may, however,
indicate some cases of this kind which would in our opinion justify the High
Court in interfering with a finding of acquittal in revision. These cases may
be: where the trial court has no jurisdiction to try the case but has still
acquitted the accused, or where the trial court has wrongly shut out evidence
which the prosecution wished to produce. or where the appeal court has
wrongly held evidence which was admitted by the trial court to be
inadmissible, or where material evidence has been overlooked either by the
trial court or by the appeal court, or where the acquittal is based on a
compounding of the offence, which is invalid under the law. These and other
cases of similar nature can properly be held to be cases of exceptional
nature, where the High Court can justifiably interfere with an order of
acquittal; an in such a case it is obvious that it cannot be said that the High
Court was doing indirectly what it could not do directly in view of the
provisions of S. 439 (4). We have, therefore, to see whether the order of the
High Court setting aside the order of acquittal in this case can be upheld on
these principles.”
3
AIR 1962 SC 1788
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Dr.YLR, J
Crl.R.C.No.1571 of 2008
Dated 21.02.2025
12. It is apposite to refer the Hon’ble Apex Court in Bindeshwari Prasad Singh v
State of Bihar4 wherein at Paragraph Nos.12 & 13 it is held as under:
“12. … We have carefully considered the material on record and we are
satisfied that the High Court was not justified in re-appreciating the evidence
on record and coming to a different conclusion in a revision preferred by the
information under Section 401 of the Code of Criminal Procedure, Sub-
section (3) of Section 401 in terms provides that nothing in Section 401 shall
be deemed to authorize a High Court to convert a finding of acquittal into one
of conviction. The aforesaid sub-section, which places a limitation on the
powers of the revisional Court, prohibiting it from convert a finding of
acquittal into one of conviction, is itself indicative of the nature and extent of
the revisional power conferred by Section 401 of the Code of Criminal
Procedure. If the High Court could not convert a finding of acquittal into one
of the conviction directly, it could not do so indirectly by the method of
ordering a re-trial. It is well settled by a catena of decisions of this Court that
the High Court will ordinarily not interfere in revision with an order of acquittal
except in exceptional cases where the interest of public justice requires
interference for the correction of a manifest illegality or the prevention of
gross miscarriage of justice. The High Court will not be justified in interfering
with an order of acquittal merely because the trial Court has taken a wrong
view of the law or has erred in appreciation of evidence. It is neither possible
nor advisable to make an exhaustive list of circumstances in which exercise
of revisional jurisdiction may be justified, but decisions of this Court have laid
down the parameters of exercise of revisional jurisdiction by the High Court
under Section 401 of the Code of Criminal Procedure in an appeal against
acquittal by a private party.
13. … In the absence of any legal infirmity either in the procedure or in
the conduct of the trial, there was no justification for the High Court to
interfere in exercise of its revisional jurisdiction. It has repeatedly been held
that the High Court should not re-appreciate the evidence to reach a finding
different from the trial Court. In the absence of manifest illegality resulting in
grave miscarriage of justice, exercise of revisional jurisdiction in such cases
is not warranted.”
4
(2002) 6 SCC 650
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Crl.R.C.No.1571 of 2008
Dated 21.02.2025
13. Therefore, as per the above three judgments, re-appreciation of
evidence is not permissible as second Appellate Court in deciding this
revision. In Reema Aggarwal Vs. Anupam5 it is held at para No.16 as under:
“As is apparent from the reasoning propounded by the Hon’ble Supreme
Court, it was held that once an appeal against acquittal stood dismissed by the
Hon’ble Division Bench, revision against acquittal cannot be entertained. It is
pertinent to mention herein that this law has been laid down by the Hon’ble
Supreme Court in the year 2009 much after the remand having been made.
Seriousness with which the Hon’ble Supreme Court treated this matter against
the State Government is evident from the following observations:–
Again, as we have already pointed out the finality confirmed by
the Division Bench should not be upset by the judgment of the
Single Bench of the same Court. Such incongruous results
would follow if we allow the revision to be entertained and
decided. In this case, undoubtedly, the revision was not only
entertained but also admitted by the High Court. We have only
to express that the attitude on the part of the State Government
counsel as also the appellant-accused was extremely casual.
We also do not understand as to why, when appeal was filed
along with the application for condonation of delay against the
judgment of acquittal, the revision pending against the same
judgment of acquittal was not joined with the appeal. Ordinarily,
that should have been done. It is all the result of colossal
casual-ness even on the part of the Registry of the High Court
which has resulted in such incongruous situation. We, however,
cannot blame the learned Single Judge for proceeding with the
revision as he was never apprised of the dismissal of the
appeal.”
14. The facts in K. Ramachandran were that appeal was dismissed on the
ground of limitation for not establishing sufficient cause, whereas, in the
instant case appeal preferred by the state in Crl.A.No.416 of 2010 was
dismissed on merits on 17.03.2010 by the Division Bench of this Court.
Therefore, when an appeal against acquittal had been dismissed by the
Division Bench either on the ground of delay or on merits and pendency of the
5
MANU/PH/4362/2013
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Crl.R.C.No.1571 of 2008
Dated 21.02.2025
revision was not brought to the notice of the Division Bench, there cannot be
any subsequent order by this Court while dealing with this revision case.
15. The judgment of the Division Bench in appeal has become final. This
Court sitting in revision against the order of acquittal of the respondents No.1
and 2 cannot go beyond the judgment of the Division Bench. Ergo, nothing
survives in the revision. For the above reasons, the revision is liable to be
dismissed. Accordingly, it is dismissed. There shall be no order as to costs.
As a sequel, interlocutory applications, if any pending, shall stand
closed.
_________________________
Dr. Y. LAKSHMANA RAO, J
Dt: 21.02.2025
KMS
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Crl.R.C.No.1571 of 2008
Dated 21.02.2025
164
THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO
CRIMINAL REVISION CASE NO: 1571/2008
21.02.2025
W
KMS
