Calcutta High Court (Appellete Side)
Smt. Pushparani Dutta vs Ranajit Dutta And Others on 4 April, 2025
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Appellate Side
Present:
The Hon'ble Justice Ajay Kumar Gupta
C.R.R. 3595 of 2018
Smt. Pushparani Dutta
Versus
Ranajit Dutta and Others
For the Petitioner : Mr. Biswapriya Samanta, Adv.
For the O.P. Nos. 1 to 3 : Mr. Uday Shankar Chattopadhyay, Adv.
Mr. Suman Banerjee, Adv.
Ms. Rajashree Tah, Adv.
Ms. Shreejita Sen, Adv.
For the State : Mr. Joydeep Roy, Adv.
Mr. Aritra Bhattacharya, Adv.
Heard on : 25.02.2025
Judgment on : 04.04.2025
2
Ajay Kumar Gupta, J:
1. This is an application under Article 227 of the Constitution
of India filed by the petitioner challenging the legality, propriety and
correctness of the Impugned Judgment and Order dated 11.12.2017
passed by the Learned Judicial Magistrate, 2nd Court, Burdwan in
Complaint Case No. 212 of 1999/Trial No. 99 of 1999.
2. By the said Judgment and Order, the Learned Magistrate
acquitted the opposite party nos. 1 to 3/accused persons from the
Charge under Section 498A of the Indian Penal Code, 1860.
3. The brief facts of the case are relevant for the purpose of
disposal of this case as under: -
3a. The petitioner/complainant was married to Ranajit Dutta,
opposite party no. 1/accused no. 1 on 14.07.1991 according to
Hindu Rites and Customs. The marriage was subsequently registered
on 30.12.1991 at Burdwan Sub-Registry Office before a Marriage
Registrar. The accused no. 3/opposite party no. 2 herein (wife of Late
Bishnunarayan Dutta-accused no. 2) was sister-in-law and accused
no. 4/opposite party no. 3 herein was the daughter of sister-in-law of
complainant/petitioner.
3b. It alleged by the complainant that due to the early death of
her parents, her elder sisters gifted her 15 vories gold ornaments,
3
furniture and other valuable articles at the time of her marriage.
However, the accused persons demanded a further sum of Rs.
50,000/- in cash and a scooter. But, the elder sister of the
complainant/petitioner failed to provide the scooter and the entire
amount. They could only pay Rs. 10,000/-. The accused persons
continued to pressure upon the complainant to bring the remaining
amount and the scooter from her elder sisters, resulting in increased
torture.
3c. However, the elder sister of the complainant provided the
accused persons Rs. 10,000/- more, but, that amount did not fulfil
their greed and ultimately during the midyear of 1994, the accused
persons ousted her from the matrimonial home. The elder sister of
the complainant took her again to her matrimonial home, but, the
accused persons continued the torture upon her. As a result, the
complainant became seriously ill. She was not allowed to talk any
person, moreover, the accused persons instigated her to commit
suicide by swallowing poison, so that after her death, the accused no.
1 may marry again with another lady.
3d. As a result of cruelty, the complainant became so seriously
ill that she was about to die and her elder sister, getting the
information from other person admitted her at Care & Cure Nursing
Home, Burdwan. However, the accused persons never took any
4
information of her. The complainant also tried to settle the matter
amicably with the accused persons on so many times, so that she can
live a happy conjugal life, but all her efforts were in vain. When the
elder sister of the complainant approached the accused person to
take the complainant to her home, they simply denied and told them
that without getting the scooter and remaining balance amount, the
complainant will not be permitted to enter into their house. Even the
accused persons refused to return the Stridhan articles of the
complainant.
3e. In such circumstances, the complainant had to file a petition
under Section 156(3) of the CrPC before the Learned Chief Judicial
Magistrate, Burdwan. The Learned Magistrate rejected the prayer for
registering an FIR, however, registered it as a complaint case on
26.04.1999 and transferred it to the Court of the Learned Judicial
Magistrate, 2nd Court, Burdwan on the same date for inquiry and
trial.
3f. After examining the complainant and her witness under
Section 200 of CrPC on SA on 04.05.1999, a prima facie case u/s
498A of IPC was prima facie established against the accused persons.
Therefore, summons were issued against all the accused persons. The
accused persons surrendered before the Learned Court below and
were enlarged on bail on 09.08.1999. In course of the trial, accused
5
no. 2, Bishnunarayan Dutta died and the case was filed forever
against him vide order dated 03.04.2002.
3g. The charge under Section 498A of IPC was framed against
the accused persons. The charge was read over and explained to the
accused who pleaded not guilty and claimed to be tried. The
complainant and witnesses were also examined fully and accused
persons were examined under Section 313 of the CrPC where they
denied the charges and refused to present any defence witnesses.
3h. After considering the evidence and hearing the parties, the
Learned Judicial Magistrate, 2nd Court, Burdwan passed a judgment
on 11.12.2017 thereby acquitted the opposite party nos. 1 to
3/accused persons from the Charge under Section 498A of the Indian
Penal Code, 1860. Be that as it may, the contention of the petitioner
is that the Learned Trial Court mechanically and without applying
judicious mind committed gross error in the findings.
3i. The ingredients of section 498A of the Indian Penal code have
been proved beyond all reasonable doubt. Yet, the Learned Trial
Court surreptitiously acquitted the accused persons.
3j. Therefore, it is liable to be set aside in the interest of justice.
As a result, the petitioner has filed an application under Article 227
of the Constitution of India to avail immediate relief against such
6
gross erroneous findings apparent on the face of the record in spite of
availability of the statutory remedy by preferring an appeal against
the aforesaid Magisterial order of acquittal under the Code of
Criminal Procedure, 1973. Hence, this Criminal Revisional
application.
4. Learned counsel appearing on behalf of the
petitioner/complainant vehemently argued and submitted that
though the petitioner had statutory remedy by preferring an appeal
against the order of acquittal as provided under Section 372 of the
Code of Criminal Procedure, 1973 but the petitioner intentionally
filed revisional application under Article 227 of the Constitution of
India, when she found gross error on the face of record and also
found fault with the impugned judgment and order of the Learned
Trial Court. Social justice may prevail over the legal justice, when
gross error apparent on the face of record as such there is no bar to
filed an application under Article 227 of the Constitution of India.
5. Learned counsel appearing on behalf of the opposite party
nos. 1 to 3, on the other hand, raised a preliminary objection
regarding maintainability of the revisional application. He further
submitted that the impugned Judgment and order of acquittal dated
11.12.2017 has been passed by the Learned Trial Court arising out of
a Complaint Case and as such the only remedy that was available to
7
the petitioner against such order of acquittal is invoking Section
378(4) of the Code of Criminal Procedure and not under Section 372
of the said Code or under Article 227 of the Constitution of India as
submitted on behalf of the petitioner/ complainant.
6. It was further submitted that the period of limitation for
preferring an Appeal under Section 378(4) of the CrPC as prescribed
under Section 378(5) of the CrPC is 60 days, when the complainant is
not a public servant. Since the petitioner has not preferred any
appeal within the period of limitation, the judgment has attained
finality and the same cannot be questioned in any manner.
7. It was further submitted that the right of appeal against the
order of acquittal as provided under Section 378(4) of the CrPC is not
an absolute right but a qualified one requiring the appellant to obtain
"Special Leave" to appeal against such order. In the instant case, no
leave has been obtained by the petitioner for assailing such order of
acquittal. There is no scope for treating the same as an Appeal under
Section 378(4) of the CrPC in absence of such special leave.
8. It was further submitted that the instant Revisional
application has been filed by the petitioner after 366 days from the
date of order of acquittal even though the certified copy of the
judgment was made available on 22.12.2017. There is no iota of
8
explanation as to reasons for such delayed. Such conduct suggests
the mala fide intention on the part of the petitioner.
9. It was further submitted that as the petitioner has not
preferred any appeal against the impugned order of acquittal, she is
precluded from challenging the same by filing a Revisional application
under Article 227 of the Constitution of India. Reliance has placed on
judgments passed in the case of Joseph Stephen and Others Vs.
Santhanasamy and Others1, particularly paragraphs 8.2, 13, 13.1
and 13.2 thereof and Subhash Chand Vs. State (Delhi
Administration)2, particularly paragraphs 13, 18 and 19 thereof.
10. In the first judgment, the Hon'ble Supreme Court held in
paragraph nos. 8.2, 13, 13.1 and 13.2 as under:-
"8.2. (ii) In a case where the victim has a right of
appeal against the order of acquittal, now as provided
under Section 372CrPC and the victim has not availed
such a remedy and has not preferred the appeal,
whether the revision application is required to be
entertained at the instance of a party/victim instead
of preferring an appeal?
13. Now so far as Issue (ii), namely, in a case where
no appeal is brought though appeal lies under the
Code, whether revision application still to be
1
(2022) 13 SCC 115;
2
(2013) 2 SCC 17.
9
entertained at the instance of the party who could
have appealed, the answer lies in sub-section (4) of
Section 401CrPC itself. Sub-section (4) of Section
401CrPC reads as under:
"401. (4) Where under this Code an appeal
lies and no appeal is brought, no proceeding
by way of revision shall be entertained at the
instance of the party who could have
appealed."
13.1. It cannot be disputed that now after the
amendment in Section 372CrPC after 2009 and
insertion of the proviso to Section 372CrPC, a victim
has a statutory right of appeal against the order of
acquittal. Therefore, no revision shall be entertained
at the instance of the victim against the order of
acquittal in a case where no appeal is preferred and
the victim is to be relegated to file an appeal. Even the
same would be in the interest of the victim
himself/herself as while exercising the revisional
jurisdiction, the scope would be very limited, however,
while exercising the appellate jurisdiction, the
appellate court would have a wider jurisdiction than
the revisional jurisdiction. Similarly, in a case where
an order of acquittal is passed in any case instituted
upon complaint, the complainant (other than victim)
can prefer an appeal against the order of acquittal as
provided under sub-section (4) of Section 378CrPC,
subject to the grant of special leave to appeal by the
High Court.
10
13.2. As observed by this Court in Mallikarjun
Kodagali [Mallikarjun Kodagali v. State of Karnataka,
(2019) 2 SCC 752 : (2019) 1 SCC (Cri) 801] , so far as
the victim is concerned, the victim has not to pray for
grant of special leave to appeal, as the victim has a
statutory right of appeal under Section 372 proviso
and the proviso to Section 372 does not stipulate any
condition of obtaining special leave to appeal like sub-
section (4) of Section 378CrPC in the case of a
complainant and in a case where an order of acquittal
is passed in any case instituted upon complaint. The
right provided to the victim to prefer an appeal
against the order of acquittal is an absolute right.
Therefore, so far as Issue (ii) is concerned, namely, 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 Section 372CrPC or Section 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 Section 372 or Section 378(4), as
the case may be. Issue (ii) is therefore answered
accordingly."
11. In the 2nd judgment, the Hon'ble Supreme Court held in
paragraph nos. 13, 18 and 19 as under: -
11
"13. Section 378 of the Code prior to its amendment
by Act 25 of 2005 read as under:
"378.Appeal in case of acquittal.--(1) Save
as otherwise provided in sub-section (2), and
subject to the provisions of sub-sections (3)
and (5), the State Government may, in any
case, direct the Public Prosecutor to present an
appeal to the High Court from an original or
appellate order of acquittal passed by any
court other than a High Court or an order of
acquittal passed by the Court of Session in
revision.
(2) If such an order of acquittal is passed in
any case in which the offence has been
investigated by the Delhi Special Police
Establishment constituted under the Delhi
Special Police Establishment Act, 1946 (25 of
1946) or by any other agency empowered to
make investigation into an offence under any
Central Act other than this Code, the Central
Government may also direct the Public
Prosecutor to present an appeal, subject to the
provisions of sub-section (3), to the High Court
from the order of acquittal.
(3) No appeal under sub-section (1) or sub-
section (2) shall be entertained except with the
leave of the High Court.
(4) If such an order of acquittal is passed in
any case instituted upon complaint and the
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High Court, on an application made to it by the
complainant in this behalf, grants special
leave to appeal from the order of acquittal, the
complainant may present such an appeal to
the High Court.
(5) No application under sub-section (4) for the
grant of special leave to appeal from an order
of acquittal shall be entertained by the High
Court after the expiry of six months, where the
complainant is a public servant, and sixty
days in every other case, computed from the
date of that order of acquittal.
(6) If in any case, the application under sub-
section (4) for the grant of special leave to
appeal from an order of acquittal is refused,
no appeal from that order of acquittal shall lie
under sub-section (1) or under sub-section (2)."
Thus, under the earlier Section 378(1) of the Code, the
State Government could, in any case, direct the Public
Prosecutor to present an appeal to the High Court
from an original or appellate order of acquittal passed
by any court other than a High Court or an order of
acquittal passed by the Court of Session in revision.
Section 378(2) covered cases where order of acquittal
was passed in any case in which the offence had
been investigated by the Delhi Special Police
Establishment constituted under the Delhi Special
Police Establishment Act, 1946 or by any other
agency empowered to make investigation into an
13
offence under any Central Act other than the Code. In
such cases, the Central Government could also direct
the Public Prosecutor to present an appeal to the High
Court from an order of acquittal. Section 378(3) stated
that appeals under sub-sections (1) and (2) of Section
378 of the Code could not be entertained except with
the leave of the High Court. Sub-section (4) of Section
378 of the Code provided for orders of acquittal
passed in any case instituted upon complaint.
According to this provision, if on an application made
to it by the complainant, the High Court grants special
leave to appeal from the order of acquittal, the
complainant could present such an appeal to the High
Court. Sub-section (5) of Section 378 of the Code
provided for a period of limitation. Sub-section (6) of
Section 378 of the Code stated that if in any case, the
application under sub-section (4) for the grant of
special leave to appeal from an order of acquittal is
refused, no appeal from that order of acquittal shall
lie under sub-sections (1) or (2). Thus, if the High
Court refused to grant special leave to appeal to the
complainant, no appeal from that order of acquittal
could be filed by the State or the agency contemplated
in Section 378(2). It is clear from these provisions that
earlier an appeal against an order of acquittal could
only lie to the High Court. Sub-section (4) was aimed
at giving finality to the orders of acquittal.
18. If we analyse Sections 378(1)(a) and (b), it is clear
that the State Government cannot direct the Public
Prosecutor to file an appeal against an order of
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acquittal passed by a Magistrate in respect of a
cognizable and non-bailable offence because of the
categorical bar created by Section 378(1)(b). Such
appeals, that is, appeals against orders of acquittal
passed by a Magistrate in respect of a cognizable and
non-bailable offence can only be filed in the Sessions
Court at the instance of the Public Prosecutor as
directed by the District Magistrate. Section 378(1)(b)
uses the words "in any case" but leaves out orders of
acquittal passed by a Magistrate in respect of a
cognizable and non-bailable offence from the control
of the State Government. Therefore, in all other cases
where orders of acquittal are passed appeals can be
filed by the Public Prosecutor as directed by the State
Government to the High Court.
19. Sub-section (4) of Section 378 makes provision for
appeal against an order of acquittal passed in a case
instituted upon complaint. It states that in such case
if the complainant makes an application to the High
Court and the High Court grants special leave to
appeal, the complainant may present such an appeal
to the High Court. This sub-section speaks of "special
leave" as against sub-section (3) relating to other
appeals which speaks of "leave". Thus, the
complainant's appeal against an order of acquittal is
a category by itself. The complainant could be a
private person or a public servant. This is evident
from sub-section (5) which refers to application filed
for "special leave" by the complainant. It grants six
months' period of limitation to a complainant who is a
15
public servant and sixty days in every other case for
filing application. Sub-section (6) is important. It
states that if in any case the complainant's
application for "special leave" under sub-section (4) is
refused no appeal from the order of acquittal shall lie
under sub-section (1) or under sub-section (2). Thus, if
"special leave" is not granted to the complainant to
appeal against an order of acquittal the matter must
end there. Neither the District Magistrate nor the State
Government can appeal against that order of
acquittal. The idea appears to be to accord quietus to
the case in such a situation."
12. In reply, the learned counsel appearing on behalf of the
Petitioner/complainant denies and disputes the contention of the
learned counsel appearing on behalf of the accused persons and
submitted that the offence punishable under Section 498A of IPC is a
matrimonial offence categorised as a crime against the women, which
highly impact on society at large and for the purpose of seeing and
/or observing that justice should not only be done but the same
manifest to have done. He emphasized that the Constitutional remedy
in the form of Article 227 of the Constitution of India reign Supreme
over the statutory remedy of appeal provided in the Code of Criminal
Procedure.
16
13. It was further submitted by the learned counsel that the
High Court can exercise its power of judicial review in Criminal
matters. The power of superintendence by the High Court is not only
an administrative nature but is also of judicial nature under Article
227 of the constitution of India. This article confers vast powers on
the High Court to prevent the abuse of the process of law by the
inferior courts and it has no limits as such the instant revisional
application is maintainable under Article 227 of the Constitution of
India. The existence of remedy of appeal and revision is not a bar to
invoke the jurisdiction of the High Court under Article 227 of the
Constitution of India.
14. The learned counsel further submitted that the doctrine of
election postulates that when two remedies are available for the same
relief, the aggrieved party has to option to elect either of them.
15. Learned counsel has placed reliance on judgments in
support of his contentions as aforesaid as under: -
i. Sadhuram Bansal Vs. Pulin Behari Sarkar and
Others3 Particularly para 29 and 30 thereof;
ii. National Insurance Co. Ltd. Vs. Mastan & Anr.4;
3
(1984) 3 SCC 410;
4
AIR 2006 SC 577;
17
iii. Pepsi Foods Ltd. and Another vs. Special Judicial
Magistrate and Others5 particularly 22, 26 and 30
thereof;
iv. State of Himachal Pradesh Vs. Dhanwant Singh6
Particularly paragraph 5 thereof;
v. Samjuben Gordhanbhai Koli Vs. State of Gujarat7
particulary paragraph 5 thereof;
vi. Punjab State Warehousing Corporation, Faridkot
Vs. M/s. Sh. Durga Ji Traders & Ors.8 Particularly
paragraph 6 and 9 thereof;
vii. Dhariwal Tobacco Products Limited and Others
Vs. State of Maharashtra and Anr.9 Particularly
paragraphs 1, 6 and 12 thereof;
viii. Achinta Kumar Saha Vs. State & Anr.10
Particularly paragraph 1 thereof;
ix. Kalachand Saha Vs. State11 particularly
paragraph 12 thereof.
16. In the third judgment, the Hon'ble Supreme Court held in
paragraph nos. 22, 26 and 30 as under:-
"22. It is settled that the High Court can exercise its
power of judicial review in criminal matters. In State
of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 :
1992 SCC (Cri) 426 : JT (1990) 4 SC 650] this Court
5
(1998) 5 SCC 749;
6
2004 (1) CLJ (SC);
7
(2010) 13 SCC 466.
8
(2012) 1 C Cr LR (SC) 895;
9
(2009) 2 SCC 370;
10
1992 C Cr LR (Cal) 102;
11
1987 C Cr LR (Cal) 47.
18
examined the extraordinary power under Article 226
of the Constitution and also the inherent powers
under Section 482 of the Code which it said could be
exercised by the High Court either to prevent abuse of
the process of any court or otherwise to secure the
ends of justice. While laying down certain guidelines
where the court will exercise jurisdiction under these
provisions, it was also stated that these guidelines
could not be inflexible or laying rigid formulae to be
followed by the courts. Exercise of such power would
depend upon the facts and circumstances of each
case but with the sole purpose to prevent abuse of the
process of any court or otherwise to secure the ends
of justice. One of such guidelines is where the
allegations made in the first information report or the
complaint, even if they are taken at their face value
and accepted in their entirety do not prima facie
constitute any offence or make out a case against the
accused. Under Article 227 the power of
superintendence by the High Court is not only of
administrative nature but is also of judicial nature.
This article confers vast powers on the High Court to
prevent the abuse of the process of law by the inferior
courts and to see that the stream of administration of
justice remains clean and pure. The power conferred
on the High Court under Articles 226 and 227 of the
Constitution and under Section 482 of the Code have
no limits but more the power more due care and
caution is to be exercised while invoking these
powers. When the exercise of powers could be under
19
Article 227 or Section 482 of the Code it may not
always be necessary to invoke the provisions of
Article 226. Some of the decisions of this Court laying
down principles for the exercise of powers by the High
Court under Articles 226 and 227 may be referred to.
26. Nomenclature under which petition is filed is not
quite relevant and that does not debar the court from
exercising its jurisdiction which otherwise it
possesses unless there is special procedure
prescribed which procedure is mandatory. If in a case
like the present one the court finds that the appellants
could not invoke its jurisdiction under Article 226, the
court can certainly treat the petition as one under
Article 227 or Section 482 of the Code. It may not
however, be lost sight of that provisions exist in the
Code of revision and appeal but some time for
immediate relief Section 482 of the Code or Article
227 may have to be resorted to for correcting some
grave errors that might be committed by the
subordinate courts. The present petition though filed
in the High Court as one under Articles 226 and 227
could well be treated under Article 227 of the
Constitution.
30. It is no comfortable thought for the appellants to
be told that they could appear before the court which
is at a far-off place in Ghazipur in the State of Uttar
Pradesh, seek their release on bail and then to either
move an application under Section 245(2) of the Code
or to face trial when the complaint and the
20
preliminary evidence recorded makes out no case
against them. It is certainly one of those cases where
there is an abuse of the process of the law and the
courts and the High Court should not have shied
away in exercising their jurisdiction. Provisions of
Articles 226 and 227 of the Constitution and Section
482 of the Code are devised to advance justice and
not to frustrate it. In our view the High Court should
not have adopted such a rigid approach which
certainly has led to miscarriage of justice in the case.
Power of judicial review is discretionary but this was
a case where the High Court should have exercised
it."
17. In the fourth judgment, the Hon'ble Supreme Court held in
paragraph no. 5 as under: -
"5. Insofar as the statutes providing for finality of the
order or decision passed or rendered in accordance
with the provisions of the statutes are concerned, it
may be stated that it is well settled that such a
statutory provision cannot take away the
constitutional right given by Articles 32, 226 and 227
of the Constitution. In this connection, reference may
be made to what was observed in para 10 of Lila Vati
Bai v. State of Bombay [AIR 1957 SC 521]. After
referring to the provision in Sections 5 and 6 of the
Act concerned stating that the determination in
question by the State Government shall be conclusive
21
evidence of the declaration so made, it was stated
that it did not mean that the jurisdiction of the High
Court under Article 226 or of the Supreme Court
under Article 32 or on appeal had been impaired. It
was also pointed out that in a proper case these
Courts in the exercise of their special jurisdiction
under the Constitution have the power to determine
how far the provisions of the statutes have or have
not been complied with in arriving at the
determination in question."
18. In the fifth judgment, the Hon'ble Supreme Court held in
paragraph no. 5 as under: -
"5. We make it clear that the power of the President of
India under Article 72 or of the Governor under Article
161, being a constitutional power cannot be under the
restriction imposed by Section 433-A CrPC. Section
433-A CrPC can restrict the power under Section 432
CrPC or Section 433 CrPC but it cannot restrict the
constitutional powers under Article 72 or Article 161
of the Constitution, just as no limitation statute can
restrict the constitutional power of the High Court
under Article 226 of the Constitution. This is because
the Constitution is a higher law and the statute is
subordinate to it."
22
19. In the sixth judgment, the Hon'ble Supreme Court held in
paragraph nos. 6 and 9 as under:-
"6. Learned counsel appearing for the appellant has
assailed the impugned judgment mainly on the
ground that the discretion vested in the High Court
under Section 482 of the Code being very wide, in the
instant case the High Court grossly erred in declining
to exercise its jurisdiction on the ground that an
alternative remedy was available to the appellant
against an order of acquittal of the accused. Relying
on the decision of this Court in Aseem Shabanli
Merchant v. Brij Mehra [(2005) 11 SCC 412 : (2006) 1
SCC (Cri) 776] , the learned counsel has urged that
having regard to the serious nature of the charges
against the respondents, the complaint should not
have been dismissed in default on account of non-
appearance of the complainant, who had been
otherwise exempted from personal appearance, and
the case ought to have been tried on merits. In
support of his contention that dismissal of the
complaint because of a singular default in
appearance on the part of the complainant, was
improper, the learned counsel relied upon the decision
of this Court in Mohd. Azeem v. A. Venkatesh [(2002)
7 SCC 726]. It is also argued that having regard to the
nature of the case, the High Court committed a patent
error in dismissing the petition under Section 482 of
the Code on the ground of availability of an
23
alternative remedy. In support of the proposition that
availability of an alternative remedy per se is no
ground for dismissal of an application under Section
482 of the Code, the learned counsel commends us to
the decision of this Court in Dhariwal Tobacco
Products Ltd. v. State of Maharashtra [(2009) 2 SCC
370 : (2009) 1 SCC (Cri) 806] .
9. Bearing in mind the aforestated legal position in
regard to the scope and width of the power of the
High Court under Section 482 of the Code, we are of
the opinion that the impugned decision is clearly
indefensible. As noted above, the High Court has
rejected the petition under Section 482 of the Code on
the ground of availability of an alternative remedy
without considering the seriousness of the nature of
the offences and the fact that the trial court had
dismissed the complaint on a hypertechnical ground
viz. since the complainant had been appearing in
person, despite the order dated 16-4-1999, exempting
him from personal appearance, the said exemption
order became redundant and the complainant should
have sought a fresh exemption from personal
appearance. We feel that such a view defies any
logic. An order of exemption from personal
appearance continues to be in force till it is revoked or
recalled. We are convinced that in the instant case,
rejection of the appellant’s petition under Section 482
of the Code has resulted in miscarriage of justice.
Availability of an alternative remedy of filing an
appeal is not an absolute bar in entertaining a
24
petition under Section 482 of the Code. As aforesaid,
one of the circumstances envisaged in the said
section, for exercise of jurisdiction by the High Court
is to secure the ends of justice. Undoubtedly, the trial
court had dismissed the complaint on a technical
ground and therefore, interests of justice required the
High Court to exercise its jurisdiction to set aside such
an order so that the trial court could proceed with the
trial on merits.”
20. In the seventh judgment, the Hon’ble Supreme Court held in
paragraph nos. 1, 6 and 12 as under: –
“1. Leave granted. Whether an application under
Section 482 of the Code of Criminal Procedure, 1973
(for short “the Code”) can be dismissed only on the
premise that an alternative remedy of filing a revision
application under Section 397 of the Code is
available, is the question involved herein.
6. Indisputably issuance of summons is not an
interlocutory order within the meaning of Section 397
of the Code. This Court in a large number of decisions
beginning from R.P. Kapur v. State of Punjab [AIR
1960 SC 866] to Som Mittal v. Govt. of
Karnataka [(2008) 3 SCC 574: (2008) 2 SCC (Cri) 1:
(2008) 1 SCC (L&S) 910] has laid down the criterion
for entertaining an application under Section 482.
Only because a revision petition is maintainable, the
same by itself, in our considered opinion, would not
25
constitute a bar for entertaining an application under
Section 482 of the Code. Even where a revision
application is barred, as for example the remedy by
way of Section 115 of the Code of Civil Procedure,
1908, this Court has held that the remedies under
Articles 226/227 of the Constitution of India would be
available. (See Surya Dev Rai v. Ram Chander
Rai [(2003) 6 SCC 675].) Even in cases where a
second revision before the High Court after dismissal
of the first one by the Court of Session is barred
under Section 397(2) [Ed. : The intended provision
seems to be Section 397(3). In this
regard See (1) Krishnan v. Krishnaveni, (1997) 4 SCC
241 : 1997 SCC (Cri) 544; (2) Puran v. Rambilas,
(2001) 6 SCC 338 : 2001 SCC (Cri) 1124; (3) Kailash
Verma v. Punjab State Civil Supplies Corpn., (2005) 2
SCC 571 : 2005 SCC (Cri) 538.] of the Code, the
inherent power of the Court has been held to be
available.
12. It is interesting to note that the Bombay High
Court itself has taken a different view. In a decision
rendered by the Aurangabad Bench of the Bombay
High Court, a learned Single Judge in Vishwanath
Ramkrishna Patil [(2006) 5 Mah LJ 671], where a
similar question was raised, opined as under: (Mah
LJ pp. 675-76, paras 10-12)
“10. … It is difficult to curtail this remedy merely
because there is a revisional remedy available. The
alternate remedy is no bar to invoke power under
26
Article 227. What is required is to see the facts and
circumstances of the case while entertaining such
petition under Article 227 of the Constitution and/or
under Section 482 of Criminal Procedure Code. The
view therefore, as taken in both the cases V.K.
Jain [V.K. Jain v. Pratap V. Padode, (2005) 30 Mah LJ
778] and Saket Gore [Saket Gore v. Aba Dhavalu
Bagul, 2005 All MR (Cri) 2514] , no way expressed
total bar. If no case is made out by the petitioner or
the party to invoke the inherent power as
contemplated under Section 482 of the Criminal
Procedure Code and/or the discretionary or the
supervisory power under Article 227 of the
Constitution of India they may approach to the
Revisional Court, against the order of issuance of
process.
11. Taking into consideration the facts and
circumstances of those cases, the learned Judge has
observed in V.K. Jain [V.K. Jain v. Pratap V. Padode,
(2005) 30 Mah LJ 778] and Saket Gore [Saket
Gore v. Aba Dhavalu Bagul, 2005 All MR (Cri) 2514]
that it would be appropriate for the parties to file
revision application against the order of issuance of
process. There is nothing mentioned and/or even
observed that there is total bar to file petition under
Section 482 of the Criminal Procedure Code and/or
petition under Article 227 of the Constitution of India.
12. The Apex Court’s decision already referred to
above, nowhere prohibited or expressly barred to
27
invoke Section 482 of the Criminal Procedure Code or
Article 227 of the Constitution of India against the
order of issuance of process.”
21. In the eighth judgment, the Hon’ble Calcutta High Court
held in paragraph no. 1 as under: –
“1. Our jurisdiction conferred by Article 227 of the
Constitution can be taken away or otherwise affected
only by or under the authority of the Constitution and
not by any legislation whatsoever without such
authority. That is why the provisions of Article
323A and Article 323B constituting Part XIVA of the
Constitution had to be inserted by way of
Constitutional Amendment in 1976 to enable
Parliament and other Legislatures to exclude our
Constitutional Jurisdiction under Articles
226 and 227 in respect of matters to be adjudicated
or tried by Tribunals to be constituted pursuant to the
provisions of those Articles. When the paramount law
of the land has conferred a jurisdiction, no other law
can alter, circumscribe or take its way save under the
express authority of that paramount law.”
22. In the last judgment, the Hon’ble Calcutta High Court held
in paragraph no. 12 as under:-
28
“12. Mr. Chaudhury has submitted that revision
application does not lie before this Court, because
S.60 of the E.C. Act provides for appeal and where
there is provision for appeal, without taking recourse
to that process, a party cannot come up by way of
revisional application. It is missed by him, however,
that the application has been filed under Art.227 of
the Constitution. Needless to say that the provision of
the E.C. Act cannot circumscribe or limit the power of
the court under Art.227. The E.C. Act in anyway
cannot abridge the constitutional right. No decision
perhaps is needed for that, but if any citation is
necessary, the case reported in (1983) 87 Cal WN
358, may be referred to. The order of the Ld. Collector
having been passed without jurisdiction; it must be
set aside under Art.227 of the Constitution.”
DISCUSSION AND FINDINGS BY THIS COURT:
23. Heard the arguments of the rival parties and submissions
made therein, this Court finds the opposite parties/accused persons
raised a preliminary issue of maintainability of the revisional
application filed under Article 227 of the Constitution of India. So,
the questions arise for consideration are as under: –
29
1. Whether the revisional application is maintainable
under Article 227 of the Constitution of India when
statutory remedy is available to the petitioner by
filing appeal against the order of acquittal under the
provision of CrPC?
2. Whether the impugned judgement and order of
acquittal date11.12.2017 is liable to be set aside to
prevent the abuse of process of law?
24. Before dealing/entering into the arguments advanced by the
parties and for proper adjudication of this case, it would be
appropriate and convenience to refer the important
sections/provisions as follows:
Section 372 of the CrPC reads as follows: –
“372. No appeal to lie unless otherwise provided.
–No appeal shall lie from any judgment or order of a
Criminal Court except as provided for by this Code or
by any other law for the time being in force:
Provided that the victim shall have a right to prefer an
appeal against any order passed by the Court
acquitting the accused or convicting for a lesser
offence or imposing inadequate compensation, and
such appeal shall lie to the Court to which an appeal
ordinarily lies against the order of conviction of such
Court.”
30
Section 378 of the CrPC reads as follows: –
“378. Appeal in case of acquittal. — (1) Save as
otherwise provided in sub-section (2), and subject to
the provisions of sub-sections (3) and (5), —
(a) the District Magistrate may, in any case, direct the
Public Prosecutor to present an appeal to the Court of
Session from an order of acquittal passed by a
Magistrate in respect of a cognizable and non-bailable
offence;
(b) the State Government may, in any case, direct the
Public Prosecutor to present an appeal to the High
Court from an original or appellate order of acquittal
passed by any Court other than a High Court [not
being an order under clause (a)] or an order of
acquittal passed by the Court of Session in revision.
(2) If such an order of acquittal is passed in any case
in which the offence has been investigated by the
Delhi Special Police Establishment constituted under
the Delhi Special Police Establishment Act, 1946 (25
of 1946), or by any other agency empowered to make
investigation into an offence under any Central Act
other than this Code, 5 [the Central Government may,
subject to the provisions of sub-section (3), also direct
the Public Prosecutor to present an appeal–
(a) to the Court of Session, from an order of acquittal
passed by a Magistrate in respect of a cognizable and
non-bailable offence;
31
(b) to the High Court from an original or appellate
order of an acquittal passed by any Court other than
a High Court [not being an order under clause (a)] or
an order of acquittal passed by the Court of Session
in revision].
(3) No appeal to the High Court] under sub-section (1)
or sub-section (2) shall be entertained except with the
leave of the High Court.
(4) If such an order of acquittal is passed in any case
instituted upon complaint and the High Court, on an
application made to it by the complainant in this
behalf, grants special leave to appeal from the order
of acquittal, the complainant may present such an
appeal to the High Court.
(5) No application under sub-section (4) for the grant
of special leave to appeal from an order of acquittal
shall be entertained by the High Court after the expiry
of six months, where the complainant is a public
servant, and sixty days in every other case, computed
from the date of that order of acquittal.
(6) If, in any case, the application under sub-section
(4) for the grant of special leave to appeal from an
order of acquittal is refused, no appeal from that
order of acquittal shall lie under sub-section (1) or
under sub-section (2).”
32
Article 227 of the Constitution of India reads as
follows:
“227. Power of superintendence over all courts
by the High Court. –
(1) Every High Court shall have superintendence over
all courts and tribunals throughout the territories in
relation to which it exercises jurisdiction.
(2) Without prejudice to the generality of the foregoing
provisions, the High Court may-
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms
for regulating the practice and proceedings of such
courts; and
(c) prescribe forms in which books, entries and
accounts shall be kept by the officers of any such
courts.
(3) The High Court may also settle tables of fees to be
allowed to the sheriff and all clerks and officers of
such courts and to attorneys, advocates and pleaders
practising therein:
Provided that any rules made, forms prescribed or
tables settled under clause (2) or clause (3) shall not
be inconsistent with the provision of any law for the
time being in force, and shall require the previous
approval of the Governor.
33
(4) Nothing in this article shall be deemed to confer on
a High Court power of superintendence over any court
or tribunal constituted by or under any law relating to
the Armed Forces.”
25. From careful perusal of the aforesaid sections, it appears
Section 372 of the CrPC is the provision for filing appeal. The said
proviso confers a statutory right upon the victim, as defined under
Section 2(wa) CrPC to prefer an appeal against an order passed by the
trial court either acquitting the accused or convicting him/her for a
lesser offence or imposing inadequate compensation.
26. The amendment to the provision of Section 372 CrPC was
prompted by the 154th Law Commission Report. The said Law
Commission Report has undertaken a comprehensive review of CrPC
and its recommendations were found to be very appropriate in
amending CrPC particularly in relation to the provisions concerning
arrest, custody and remand, procedure to be followed in summons and
warrant cases, compounding of offences and special protection in
respect of women and inquiry and trial of persons of unsound mind.
Further, the Law Commission in its Report has noted the relevant
aspect of the matter, namely, that the victims are the worst sufferers
in a crime and they do not have much role in the court proceedings.
They need to be given certain rights and compensation so that there is
34
no distortion of the criminal justice system. The said Report of the Law
Commission has also taken note of the views of the criminologist,
penologist and reformers of criminal justice system at length and has
focused on victimology, control of victimisation and protection of the
victims of crimes and the issues of compensation to be awarded in
favour of them. Therefore, Parliament on the basis of the aforesaid
Report of the Law Commission, which is victim-oriented in approach,
has amended certain provisions of CrPC and in that amendment the
proviso to Section 372 CrPC was added to confer the statutory right
upon the victim to prefer an appeal before the High Court against the
acquittal order, or an order convicting the accused for the lesser
offence or against the order imposing inadequate compensation.
Emphasis supplied.
27. Whereas Section 378 provides two streams of appeals
against the acquittal. The first stream of appeals is against the order
of acquittals to be preferred by the State Government/Central
Government and the same would be under Sub-section (1) and (2) of
Section 378 and before such an appeal is entertained, a leave of the
High Court requires to be taken, as provided for under Sub-section
(3) of the Section 378 of the CrPC. The said provision is not applicable
in the present case because in the present case order of acquittal
passed in a complaint case.
35
28. In such a case, another stream of appeals is applicable
against the order acquittals in the complaint case, wherein, by virtue
of section 378 (4), the complainant has to seek special leave to appeal
from the High Court under Sub-section (5). Further, the application
for grant of special leave to appeal must be filed if the complainant is
a public servant within 6 months from the date of order of acquittal
and in all other cases, within 60 days from the date of order of
acquittal. So, limitation for filing appeal is 60 days against the order
of acquittal is applicable.
29. This Court would like to place reliance on judgment passed in
Surya Dev Rai Vs. Ram Chander Rai & Ors.12, wherein the Hon’ble
Supreme Court held particularly in paragraph nos. 22 to 27, 32 and
38 as under:
“Supervisory jurisdiction under Article 227
22. Article 227 of the Constitution confers on every
High Court the power of superintendence over all
courts and tribunals throughout the territories in
relation to which it exercises jurisdiction excepting
any court or tribunal constituted by or under any law
relating to the armed forces. Without prejudice to the
generality of such power the High Court has been
conferred with certain specific powers by clauses (2)
and (3) of Article 227 with which we are not
12
(2003) 6 SCC 675 : 2003 SCC OnLine SC 829
36concerned hereat. It is well settled that the power of
superintendence so conferred on the High Court is
administrative as well as judicial, and is capable of
being invoked at the instance of any person aggrieved
or may even be exercised suo motu. The paramount
consideration behind vesting such wide power of
superintendence in the High Court is paving the path
of justice and removing any obstacles therein. The
power under Article 227 is wider than the one
conferred on the High Court by Article 226 in the
sense that the power of superintendence is not
subject to those technicalities of procedure or
traditional fetters which are to be found in certiorari
jurisdiction. Else the parameters invoking the exercise
of power are almost similar.
23. The history of supervisory jurisdiction exercised
by the High Court, and how the jurisdiction has
culminated into its present shape under Article 227 of
the Constitution, was traced in Waryam Singh v.
Amarnath [AIR 1954 SC 215: 1954 SCR 565]. The
jurisdiction can be traced back to Section 15 of the
High Court’s Act, 1861 which gave a power of judicial
superintendence to the High Court apart from and
independently of the provisions of other laws
conferring revisional jurisdiction on the High Court.
Section 107 of the Government of India Act, 1915 and
then Section 224 of the Government of India Act,
1935, were similarly worded and reproduced the
predecessor provision. However, sub-section (2) was
37
added in Section 224 which confined the jurisdiction
of the High Court to such judgments of the inferior
courts which were not otherwise subject to appeal or
revision. That restriction has not been carried forward
in Article 227 of the Constitution. In that sense Article
227 of the Constitution has width and vigour
unprecedented.
Difference between a writ of certiorari under
Article 226 and supervisory jurisdiction under
Article 227
24. The difference between Articles 226 and 227 of
the Constitution was well brought out in Umaji
Keshao Meshram v. Radhikabai [1986 Supp SCC
401]. Proceedings under Article 226 are in exercise of
the original jurisdiction of the High Court while
proceedings under Article 227 of the Constitution are
not original but only supervisory. Article 227
substantially reproduces the provisions of Section 107
of the Government of India Act, 1915 excepting that
the power of superintendence has been extended by
this article to tribunals as well. Though the power is
akin to that of an ordinary court of appeal, yet the
power under Article 227 is intended to be used
sparingly and only in appropriate cases for the
purpose of keeping the subordinate courts and
tribunals within the bounds of their authority and not
for correcting mere errors. The power may be
exercised in cases occasioning grave injustice or
failure of justice such as when (i) the court or tribunal
38
has assumed a jurisdiction which it does not have, (ii)
has failed to exercise a jurisdiction which it does
have, such failure occasioning a failure of justice, and
(iii) the jurisdiction though available is being exercised
in a manner which tantamounts to overstepping the
limits of jurisdiction.
25. Upon a review of decided cases and a survey of
the occasions, wherein the High Courts have
exercised jurisdiction to command a writ of certiorari
or to exercise supervisory jurisdiction under Article
227 in the given facts and circumstances in a variety
of cases, it seems that the distinction between the two
jurisdictions stands almost obliterated in practice.
Probably, this is the reason why it has become
customary with the lawyers labelling their petitions
as one common under Articles 226 and 227 of the
Constitution, though such practice has been
deprecated in some judicial pronouncement. Without
entering into niceties and technicality of the subject,
we venture to state the broad general difference
between the two jurisdictions. Firstly, the writ of
certiorari is an exercise of its original jurisdiction by
the High Court; exercise of supervisory jurisdiction is
not an original jurisdiction and, in this sense, it is
akin to appellate, revisional or corrective jurisdiction.
Secondly, in a writ of certiorari, the record of the
proceedings having been certified and sent up by the
inferior court or tribunal to the High Court, the High
Court if inclined to exercise its jurisdiction, may
39
simply annul or quash the proceedings and then do
no more. In exercise of supervisory jurisdiction, the
High Court may not only quash or set aside the
impugned proceedings, judgment or order but it may
also make such directions as the facts and
circumstances of the case may warrant, maybe, by
way of guiding the inferior court or tribunal as to the
manner in which it would now proceed further or
afresh as commended to or guided by the High Court.
In appropriate cases the High Court, while exercising
supervisory jurisdiction, may substitute such a
decision of its own in place of the impugned decision,
as the inferior court or tribunal should have made.
Lastly, the jurisdiction under Article 226 of the
Constitution is capable of being exercised on a prayer
made by or on behalf of the party aggrieved; the
supervisory jurisdiction is capable of being exercised
suo motu as well.
26. In order to safeguard against a mere appellate or
revisional jurisdiction being exercised in the garb of
exercise of supervisory jurisdiction under Article 227
of the Constitution, the courts have devised self-
imposed rules of discipline on their power.
Supervisory jurisdiction may be refused to be
exercised when an alternative efficacious remedy by
way of appeal or revision is available to the person
aggrieved. The High Court may have regard to
legislative policy formulated on experience and
expressed by enactments where the legislature in
40
exercise of its wisdom has deliberately chosen certain
orders and proceedings to be kept away from exercise
of appellate and revisional jurisdiction in the hope of
accelerating the conclusion of the proceedings and
avoiding delay and procrastination which is
occasioned by subjecting every order at every stage of
proceedings to judicial review by way of appeal or
revision. So long as an error is capable of being
corrected by a superior court in exercise of appellate
or revisional jurisdiction, though available to be
exercised only at the conclusion of the proceedings, it
would be sound exercise of discretion on the part of
the High Court to refuse to exercise the power of
superintendence during the pendency of the
proceedings. However, there may be cases where but
for invoking the supervisory jurisdiction, the
jurisdictional error committed by the inferior court or
tribunal would be incapable of being remedied once
the proceedings have concluded.
27. In Chandrasekhar Singh v. Siya Ram Singh
[(1979) 3 SCC 118: 1979 SCC (Cri) 666] the scope of
jurisdiction under Article 227 of the Constitution came
up for the consideration of this Court in the context of
Sections 435 and 439 of the Criminal Procedure Code
which prohibits a second revision to the High Court
against decision in first revision rendered by the
Sessions Judge. On a review of earlier decisions, the
three-Judge Bench summed up the position of law as
under: (SCC pp. 121-22, para 11)
41
(i) that the powers conferred on the High Court under
Article 227 of the Constitution cannot, in any way, be
curtailed by the provisions of the Code of Criminal
Procedure;
(ii) the scope of interference by the High Court under
Article 227 is restricted. The power of
superintendence conferred by Article 227 is to be
exercised sparingly and only in appropriate cases, in
order to keep the subordinate courts within the
bounds of their authority and not for correcting mere
errors;
(iii) that the power of judicial interference under
Article 227 of the Constitution is not greater than the
power under Article 226 of the Constitution;
(iv) that the power of superintendence under Article
227 of the Constitution cannot be invoked to correct
an error of fact which only a superior court can do in
exercise of its statutory power as the court of appeal;
the High Court cannot, in exercise of its jurisdiction
under Article 227, convert itself into a court of appeal.
32. The principles deducible, well-settled as they are,
have been well summed up and stated by a two-
Judge Bench of this Court recently in State v. Navjot
Sandhu [(2003) 6 SCC 641: JT (2003) 4 SC 605], SCC
pp. 656-57, para 28. This Court held:
(i) the jurisdiction under Article 227 cannot be limited
or fettered by any Act of the State Legislature;
42
(ii) the supervisory jurisdiction is wide and can be
used to meet the ends of justice, also to interfere even
with an interlocutory order;
(iii) the power must be exercised sparingly, only to
keep subordinate courts and tribunals within the
bounds of their authority to see that they obey the
law. The power is not available to be exercised to
correct mere errors (whether on the facts or laws) and
also cannot be exercised “as the cloak of an appeal in
disguise.
38. Such like matters frequently arise before the High
Courts. We sum up our conclusions in a nutshell, even
at the risk of repetition and state the same as
hereunder:
(1) ……………….
(2) ………………
(3) ……………..
(4) Supervisory jurisdiction under Article 227 of the
Constitution is exercised for keeping the subordinate
courts within the bounds of their jurisdiction. When a
subordinate court has assumed a jurisdiction which it
does not have or has failed to exercise a jurisdiction
which it does have or the jurisdiction though available
is being exercised by the court in a manner not
permitted by law and failure of justice or grave
injustice has occasioned thereby, the High Court may
step in to exercise its supervisory jurisdiction.
43
(5) Be it a writ of certiorari or the exercise of
supervisory jurisdiction, none is available to correct
mere errors of fact or of law unless the following
requirements are satisfied: (i) the error is manifest
and apparent on the face of the proceedings such as
when it is based on clear ignorance or utter disregard
of the provisions of law, and (ii) a grave injustice or
gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident i.e.
which can be perceived or demonstrated without
involving into any lengthy or complicated argument or
a long-drawn process of reasoning. Where two
inferences are reasonably possible and the
subordinate court has chosen to take one view, the
error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the
supervisory jurisdiction are to be exercised sparingly
and only in appropriate cases where the judicial
conscience of the High Court dictates it to act lest a
gross failure of justice or grave injustice should
occasion. Care, caution and circumspection need to be
exercised, when any of the abovesaid two
jurisdictions is sought to be invoked during the
pendency of any suit or proceedings in a subordinate
court and the error though calling for correction is yet
capable of being corrected at the conclusion of the
proceedings in an appeal or revision preferred
thereagainst and entertaining a petition invoking
certiorari or supervisory jurisdiction of the High Court
44would obstruct the smooth flow and/or early disposal
of the suit or proceedings. The High Court may feel
inclined to intervene where the error is such, as, if not
corrected at that very moment, may become incapable
of correction at a later stage and refusal to intervene
would result in travesty of justice or where such
refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or
supervisory jurisdiction will not convert itself into a
court of appeal and indulge in reappreciation or
evaluation of evidence or correct errors in drawing
inferences or correct errors of mere formal or technical
character.
(9) In practice, the parameters for exercising
jurisdiction to issue a writ of certiorari and those
calling for exercise of supervisory jurisdiction are
almost similar and the width of jurisdiction exercised
by the High Courts in India unlike English courts has
almost obliterated the distinction between the two
jurisdictions. While exercising jurisdiction to issue a
writ of certiorari, the High Court may annul or set
aside the act, order or proceedings of the subordinate
courts but cannot substitute its own decision in place
thereof. In exercise of supervisory jurisdiction, the
High Court may not only give suitable directions so as
to guide the subordinate court as to the manner in
which it would act or proceed thereafter or afresh, the
High Court may in appropriate cases itself make an
order in supersession or substitution of the order of
45the subordinate court as the court should have made
in the facts and circumstances of the case.”
30. Considering the aforesaid provisions as well as dicta/ratio
pronounced by the Hon’ble Supreme Court in the aforesaid cases, it
reveals the application filed under Article 227 of the Constitution of
the India is maintainable. However, there is some limitation in
applicability.
31. Supervisory jurisdictions may be refused to be exercised
when an alternative efficacious remedy by way of appeal or revision is
available to the person aggrieved. The High Court may have regard to
legislative policy formulated on experience and expressed by
enactments where the legislature in exercise of its wisdom has
deliberately chosen certain orders and proceedings to be kept away
from exercise of appellate and revisional jurisdiction in the hope of
accelerating the conclusion of the proceedings and avoiding delay and
procrastination which is occasioned by subjecting every order at
every stage of proceedings to judicial review by way of appeal or
revision. So long as an error is capable of being corrected by a
superior court in exercise of appellate or revisional jurisdiction,
though available to be exercised only at the conclusion of the
proceedings, it would be sound exercise of discretion on the part of
46
the High Court to refuse to exercise the power of superintendence
during the pendency of the proceedings. However, there may be cases
where but for invoking the supervisory jurisdiction, the jurisdictional
error committed by the inferior court or tribunal would be incapable
of being remedied once the proceedings have concluded.
32. The Criminal revision filed against the judgement and order
of acquittal passed by the Trial court in complaint case is barred by
Section 401 (4) as appeal lies to the High Court in such a matter
either under Section 372 or 378 (4) of CrPC. But here this criminal
revision has been filed under Article 227 of the constitution of India
against the final decision of the Trial Court. The Trial court acquitted
the accused person from the offence punishable under Section 498A
of the Indian Penal Code. However, High Court can entertain
application under Article 227 of the Constitution of India, when it is
found in cases occasioning grave injustice or failure of justice such as
when
(i) The Court or Tribunal has assumed a jurisdiction which it
does not have;
(ii) Has failed to exercise a jurisdiction which it does have,
such failure occasioning a failure of justice; and
47
(iii) The jurisdiction though available is being exercised in a
manner which tantamount to overstepping the limits of jurisdiction.
33. After carefully gone into the judgment and order passed by the
Learned Trial Court, this Court is unable to convince the arguments
that the Learned Trial Court has caused any grave injustice or failure
of justice while deciding the case. The Learned Trial Court had a
jurisdiction and exercised its jurisdiction to try and decide the case
on merits.
34. This Court also does not find any patent defect or an error of
jurisdiction or law. In addition, it appears that the petitioner has filed
this Criminal Revisional application under Article 227 of the
Constitution of India only to avoid delay in filing appeal.
35. After conclusion of criminal trial, Learned Judicial
Magistrate has decided the case on merits, the Learned Trial Court
rightly held that the complainant and witnesses failed to prove the
case against the accused persons beyond reasonable doubt, as such,
there is no need to interfere with the findings of the learned Trial
Court. Hence, there is no scope to allow this Criminal Revisional
application.
36. In the light of above discussions made by this Court and in
view of observations made by the Hon’ble Supreme Court in the
48
above cited judgments, this Court fully satisfies that this Criminal
Revisional application has devoid of merit and liable to be dismissed.
37. Accordingly, CRR 3595 of 2018 is, thus, dismissed.
Connected applications, if any, are also, thus, disposed of.
38. Let a copy of this Judgment be sent to the Learned Court
below for information.
39. Interim order, if any, stands vacated.
40. Case Diary, if any, be returned to the learned counsel for the
State.
41. Parties shall act on the server copies of this Judgment
uploaded on the website of this Court.
42. Urgent photostat certified copy of this Judgment, if applied
for, is to be given as expeditiously to the parties on compliance of all
legal formalities.
(Ajay Kumar Gupta, J)
P. Adak (P.A.)
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