Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.801 of 2012 ====================================================== Debasish Palit, S/O late Praffula Chandra Palit, resident of Gulab Bagh, Bari Path, P.S.- Kadamkuan, and District- Patna .... .... Petitioner/s Versus 1. The State of Bihar 2. Dharmendra Kumar Sinha, S/O Rajendra Prasad, resident of Thakurbari Road, P.S.- Kadamkuan, and District- Patna 3. Jitendra Kumar Sinha, S/O Rajendra Prasad( since deceased) resident of Thakurbari Road, P.S.- Kadamkuan, and District- Patna .... .... Opposite party/s ====================================================== Appearance : For the Petitioner/s : Mr. Ganpati Trivedi, Advocate Mr. Madan Mohan, Advocate For the State of Bihar : Mr. Umanath Mishra, Addl. P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER 2 02-08-2012 Heard. 2. The present revision application has been listed for consideration of the objection raised by the Stamp Reporter about the maintainability of this revision application filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’). 3. The petitioner filed complaint case No. 3137 (C) of 2004 before the learned Chief Judicial Magistrate, Patna, for various offences including the offence under Section 420 of the Patna High Court CR. REV. No.801 of 2012 (2) dt.02-08-2012 2 / 8 2 Indian Penal Code. On the basis of inquiry held under [STATUTE] against accused persons, processes were issued and accused opposite party nos. 2 and 3 were summoned for facing trial. On their appearance, charge under [STATUTE] was framed against them and they were put on trial. 4. During the course of trial, the petitioner could produce three witnesses in support of his case. The accused persons also produced one defence witness and some documentary evidence in support of their defence. On consideration of the materials/evidence available on the record, the learned trial court has come to a finding that there were previous litigations as also property dispute between the parties and, therefore, strict and minute verification of evidence is required for the purpose of recording the judgment of guilt against the accused persons. The learned trial court has finally concluded that the prosecution has failed to prove the charge beyond all reasonable shadow of doubts. The learned Judicial Magistrate, Ist Class, Patna Sadar, Patna, by giving the accused opposite party nos. 2 and 3 benefits of doubts, has acquitted them for charge under Section 420 of the Indian penal Code by his impugned judgment of acquittal dated 23rd April, 2012. 5. The petitioner, the complainant of the aforesaid Complaint case, being aggrieved by the aforesaid judgment of acquittal, has filed the present revision application under Sections 397 and 401 Cr. P.C., as stated above. 6. The objection of the Stamp Reporter is that in the given facts of the case, the petitioner ought to have filed an application under Section 378(4) Cr. P.C. seeking Special Leave Patna High Court CR. REV. No.801 of 2012 (2) dt.02-08-2012 3 / 8 3 from this Court to file an appeal against the impugned judgment of acquittal in the aforesaid complaint case filed by him. The petitioner having not done so, should now convert this revision application into an application under Section 378(4) Cr. P.C. seeking Special leave to Appeal. 7. Learned counsel appearing on behalf of the petitioner has strongly contested the matter. According to him, though there is a legal bar under Section 401(4)Cr. P.C. against maintainability of a revision application against an order, which could have been challenged in an appeal and has not been challenged as such, yet a revision petition at the behest of the complainant against the judgment of acquittal is maintainable. He further contends that a petition under Section 378(4) Cr. P.C. is filed under criminal miscellaneous jurisdiction of the Patna High Court and is registered as ‘Special Leave Application’ and only when this Court grants such leave, an appeal can be preferred against the judgment of acquittal. He has referred to the provisions of Chapter XII, Rules 50, 51 as also Rule 68 of the Patna High Court Rules. In support of this contention that the present revision application is maintainable, he has placed reliance on a judgment of the Hon’ble Apex Court in the Case of K. Chinnaswamy Reddy Vs. State of Andhra Pradesh and Another [AIR 1962 SC 1788] ( Paragraph 7). 8. Learned Additional Public Prosecutor, appearing on behalf of the State, has strongly challenged the maintainability of the present revision application and has submitted that in view of the mandates of section 378(4) read with Section 401( 4) Cr. P.C. this revision application is not at all maintainable. 9. It may be relevant to mention here that when the Patna High Court CR. REV. No.801 of 2012 (2) dt.02-08-2012 4 / 8 4 matter was taken up, at the very out set, this Court gave an option to the learned counsel appearing on behalf of the petitioner to convert this Revision application into a Special Leave Application under Section 378(4)Cr. P.C., but he refused to do and insisted that maintainability matter may be decided on merit. Accordingly, the matter was heard at length. 10. In order to appreciate the objection raised by the Stamp Reporter that this Revision Application is not maintainable as also the points raised on behalf of the parties, it would be relevant to reproduce Sections 378(4) and Section 401(4) Cr. P,C. which read as follows:- “378. Appeal in case of acquittal: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - -- - -- - - - - - - - -- - - - - - - - - (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

Applicable IPC Section: 380

Statute Text:
Section 380 of the Indian Penal Code. Theft in a building, tent or vessel. Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.