1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL REVISION APPLICATION NO.43 OF 2010 State through Police Inspector, (CID Crime Branch), Donapaula. …. Petitioner V/s Aires Rodrigues S/o. Luis Rodrigues, R/o T-1, B-30, Ribander Retreat, Ribander, Ilhas Goa. …. Respondent Mr. Mahesh Amonkar, Special Public Prosecutor for the Petitioner. Respondent in person. CORAM : N.A. BRITTO, J. DATE : 13th DECEMBER, 2010 JUDGMENT : Heard Shri M. Amonkar, the learned Special Public Prosecutor and the respondent/accused in person. 2. The respondent is being prosecuted as accused no.1 in C.C. No.85/2007/A. He had taken two objections regarding the maintainability of the said case against him. Now, he has taken two objections regarding the maintainability of this revision. Some bare facts are required to be stated to dispose of this petition. 2 3. On 16/08/2004, two complaints/first information reports came to be lodged against the respondent. One was lodged by Sr. Celia Fernandes. It was registered as Crime No.3/06 at the Women's Police station which resulted in filing a charge sheet registered as Criminal Case No.IPC 83/2006/C and which ended in the acquittal of the accused under Section 509 and 504 IPC by judgment dated 9/04/2009 of the learned JMFC, Panaji. As can be seen from para 2 of the judgment, the case of the prosecution was that on 5/08/2004 at around 17.30 hrs. Sr. Celia Fernandes, a nun attached to Our Lady of Ajuda Convent, Ribandar was at the convent along with other nuns, when the accused called up over the convent telephone number 2444336 and gave threats of raping her and further abused her in filthy words effecting (sic.) her modesty. 4. The other was lodged by Fr. Newton Fernandes and was registered as crime no.94/2004 which resulted in filing of the charge sheet registered as Criminal Case No.85/2007/A against the respondent as accused no.1 and 14 others. 5. The respondent/accused no.1 took the plea of double jeopardy or in other words of “autrefois acquit” and eventually this Court by judgment dated 25/11/2009 in Writ Petition No.77/2009 3 directed the learned Chief Judicial Magistrate to decide the objections of the respondent/accused no.1 as regards double jeopardy as well as lack of ingredients of the offences alleged against him i.e. under Sections 143,448,504,506 r/w 149 IPC. Pursuant to the said directions, the learned Chief Judicial Magistrate by order dated 22/08/2009 discharged the respondent/accused no.1 upholding both the objections in his favour. The learned Chief Judicial Magistrate discharged the respondent/accused no.1 under Sections 143,448,504,506 r/w 149 IPC holding that the respondent was entitled to the protection of Section 300 of the Code, (Code of Criminal Procedure, 1973) and also because essential ingredients of the said offences were not disclosed. 6. Against the said order dated 22/12/2009, the State preferred a revision petition, being Criminal Revision Application No.55/2010 which came to be disposed off by the learned Additional Sessions Judge, FTC, Panaji, by judgment dated 4/06/2010, by which the learned Additional Sessions Judge upheld the first objection, but as far as the second objection is concerned, the learned Additional Sessions Judge held that there was prima facie evidence against respondent/accused no.1 under Sections 4 143,448,506 r/w 149 IPC to frame charge against him. This part of the order has not been assailed by respondent/accused no.1. 7. The first objection now taken by the respondent/accused no.1 is regarding the maintainability of this petition which has been styled as a revision application. 8. According to the respondent, a second revision is not maintainable in view of sub-section 3 of Section 397 of the Code. Sub-section (3) of Section 397 of the Code provides as follows: If an application under this Section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. 9. On the other hand, Shri Amonkar, the learned Special Public Prosecutor has submitted that the bar of sub-section (3) of Section 397 of the Code would not apply to the State when it seeks revision under Section 401 of the Code and in this context particular reference has been made by Shri Amonkar to para 9 of a three Judges judgment of the Apex Court in Krishnan and Anr. V/s. Krishnaveni & Anr. (1997 (4) SC 241) wherein it is held that the prohibition under Section 397 (3) on revisional power given to the High Court would not apply when the State seeks revision under 5 Section 401 of the Code. The State is not prohibited to avail the revisional power of the High Court under Section 397 (1) r/w Section 401 of the Code. 10. The respondent in person has relied upon several judgments reported in 1979 (1) SCC 560, 1990 (SUPP) SCC 132, 1993 (1) SCC 434 and 1995(5) SCC 755 but according to Shri Amonkar, the learned Special Public Prosecutor all these judgments have been considered by the three Judges judgment of the Hon'ble Supreme Court in the case of Krishnan and Anr. (supra). That apart, there is no disagreement between Shri Amonkar, the learned Special Public Prosecutor and the respondent in person that this Court can otherwise exercise inherent powers under Section 482 of the Code also, to examine the correctness of the impugned order in the light of the said judgment in the case of Krishnan and Anr. (supra). 11. It is well settled now that the nomenclature under which a petition is filed is not quite relevant and that does not debar the Court from exercising its jurisdiction which otherwise it possesses. It is also well settled that the High Court can exercise its power of judicial review in criminal matters. The Apex Court in Pepsi Foods Ltd. and Anr. (1998 (5) SCC 749) has held that Article 227 6 of the Constitution confers power of superintendence by the High Court and this power is not only administrative but is also of judicial in nature which power is to be exercised 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 has to be exercised while invoking these powers. When the exercise of power is under Article 227 of the Constitution or Section 482 of the Code it may not always be necessary to invoke the provisions of Article 226. Therefore, the correctness of the order passed by the learned Additional Sessions Judge dated 4/06/2010, can be examined by this Court not only under Article 227 of the Constitution but also under Section 482 as well as 397 of the Code, as we shall see, a little later. 12. Section 397 of the Code confers concurrent revisional jurisdiction on the High Court as well as the Court of Sessions and the powers of revision are to be exercised by the Sessions Judge under Section 397/399 and by the High Court under Section 397/401. Sub-section (3) of Section 397 as already seen, provides 7 that if an application under this Section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the either of them. The Apex Court in Krishnan and Anr. (supra) dealt with the said expression “any person” appearing in sub-section (3) of Section 397 and held that the word “person” would include not only natural person but also juridical person in whatever form designated and whether incorporated or not. By implication, the State stands excluded from the purview of the word “person” for the purpose of limiting its right to avail the revisional power of the High Court under Section 397 (1) of the Code for the reason that the State, being the prosecutor of the offender, is enjoined to conduct prosecution on behalf of the society and to take such remedial steps as it deems proper. The object behind criminal law is to maintain law, public order, stability as also peace and progress in the society. Ultimately, the Apex Court held that the prohibition under Section 397 (3) on revisional power given to the High Court would not apply when the State seeks revision under Section 401. So the State is not prohibited to avail the revisional power of the High Court under Section 397 r/w Section 401 of the Code. That being the principle of law laid down by three Judges of the Apex Court, this Court is bound to follow the same. Therefore the 8 present petition can be entertained by this Court not only by way of a revision petition but also under Section 482 of the Code as well as Article 227 of the Constitution. The law laid down in Krishnan and Anr. (supra) will prevail over the Division Bench judgments in Jagir Singh V/s. Ranbir Singh & Anr. (1979 (1) SCC 560) and Dipak Kumar Chatterjee V/s. Commissioner of Payments (Jute) & Anr. (1993 (1) SCC 434). 13. The second objection taken by the respondent is regarding the locus standi of the Police Inspector, CID Crime Branch, to file the present petition. Respondent's submission is that Crime No.54/2004 was initially registered at Old Goa Police Station. Subsequently it was transferred to CID, Crime Branch, which is a designated police station. The respondent submits that this revision petition ought to have been filed by the Public Prosecutor and not by the Police Inspector whose duty ceases after the filing of the charge sheet. Respondent's further submission is that charge sheet was filed by PSI Mahale of the said police station and so, if at all, the said PSI Mahale had to file the revision. In this context the respondent has made reference to certain observations of the Apex Court in R. Sarala V/s. T.S. Velu & Ors. (judgment of the Apex Court dated 13/04/2000) wherein the Division Bench of the Apex 9 Court has held that investigations and prosecution are two different facets in the administration of criminal justice. The role of Public Prosecutor is inside the Court, whereas investigation is outside the Court. Normally the role of Public Prosecutor commences after investigating agency presents the case in the court on culmination of investigation. Therefore, according to the respondent the Police Inspector Ms. Sunita Sawant had no locus standi to file the present revision. The State contends that the case was investigated by PSI Menezes and PSI Mahale has now retired. 14. There is no dispute that the Government has taken a decision to file a revision and it appears that the revision had to be filed by the Police Inspector in charge of CID, crime branch police station, with a view to avoid limitation, because the regular Public Prosecutor had recused from filing the revision. 15.1 Revisional jurisdiction can be exercised by this Court on its own motion or even at the behest of a stranger. In Children's Right in Goa V/s. Shri Arun Sinha & Anr., (unreported judgment dated 14/15th December, 2006 in Criminal Misc. Application No.324 of 2006) on which reliance is placed by Shri Amonkar, this Court had occasion to refer to the case of Pratap V/s. State of U.P. 10 & Ors. (1973 (3) SCC 690) wherein the Apex Court speaking through three learned Judges has held that the power under Section 439 of the Code (now Section 397) is one which the High Court can exercise suo motu and all that a person filing a revision petition under that Section does is to draw the court's attention to an illegal, improper or incorrect finding, sentence or order of a subordinate Court. The Apex court has further held that the power of revision in criminal cases vesting in the High Court, though wide and also exercisable suo motu is a power which, generally speaking, is narrower and more limited than its appellate power, though in certain respects it has a somewhat wider scope. It is discretionary and cannot be invoked as of right such as is the case of appellate power. Broadly stated, the object of conferring revisional power is to clothe the highest court in a State with a jurisdiction of general supervision and superintendence in order to correct grave failure or miscarriage of justice arising from erroneous or defective orders. The error or defect may arise from misconception of law, irregularity of procedure, misreading of evidence, misapprehension or misconception about law or facts, mere perversity or even undue hardship or leniency. The real core of this power is that its exercise is justified only to set right grave failure of justice and not merely to rectify every error however inconsequential. In para 12 of the 11 said judgment dated 14th/15th December, 2006 it was stated as follows: “12. Section 397 of the Code confers revisional power on this Court to examine the correctness, legality or propriety of any order passed by an inferior Criminal Court and, if it finds that the order is not correct or is illegal or improper, it can exercise any of the powers conferred on a Court of appeal. This Court possesses a general power of Superintendence over the actions of Courts subordinate to it. On its administrative side this power is known as the power of superintendence. On the judicial side it is known as the power of revision. The High Court can at any stage, of its own motion if it so desires, and certainly when illegalities or irregularities resulting in injustice are brought to its notice, call for the records and examine them for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceeding of such Court. In para 9 it was observed as follows: “In the case of Damodar Pednekar V/s. Umakant Naik & Anr. (2006 (2) Goa L.R. 83) this Court held that a private party has no right of appeal and it is the State alone who has been conferred with the right of appeal. This view also finds support in the case of Jagbir & Anr. V/s. State of Punjab (1998 Cri.L.J. 4588). This decision is of no assistance to the case of the accused, as far as the facts of the case is concerned. Reliance is also placed on the case of Shashi Kumar Goyal V/s. State and Others (2002 (1) Crimes 501) wherein the Delhi High Court held that a revision at the instance of the brother of the complainant was not maintainable in a case where the accused was prosecuted after filing a charge-sheet. This decision is also of no help to the case of the accused. That a complainant i.e. first informant could file a revision is a position which has been accepted by the Apex Court in the case of Jagbir and another V/s. State of Punjab (supra).” Shri Amonkar has now placed reliance on K. Pandurangan etc. V/s. S.S.R. Velusamy & Anr. (2003 CRI.L.J. 4964) wherein 12 the Apex Court has reiterated the proposition that a revision is maintainable at the instance of the complainant i.e. the first informant. 15.2. Section 154 of the Code provides that: Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. Sub-section (1) of Section 173 of the Code provides that: Every investigation under this Chapter shall be completed without unnecessary delay. and sub-section (2)(i) provides that: As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government stating the names of the parties, etc. In other words, after the investigations are completed the police report or the charge sheet is required to be filed by the officer in charge of the police station. This is done on behalf of the State in whose name all prosecutions are conducted and in accordance with the provisions of the Code. As already stated, 13 there is no dispute that the investigations of Crime No.54/2004 which started at Old Goa Police Station were transferred to CID, Crime Branch Police Station and the case was investigated by PSI Braz Menezes and charge sheet was filed by PSI Mahale. It may be that PSI Mahale has now retired. It also may be that PSI Braz Menezes is available but the fact remains that this petition has been filed on behalf of the State by the Police Inspector in charge of the Police station to which the investigations were transferred. If a Police Inspector in charge of the police station, after investigations are completed, can file a charge sheet on behalf of the State, I do not see any reason why such a Police Inspector cannot file a revision when the accused are discharged from the case. There is no prohibition in the Code for filing such a revision by the Police Inspector who had filed the charge sheet. All that Section 378(1) (b) of the Code requires is that when the State Government seeks to file an appeal against an order of acquittal it is to be directed to be filed by the Public Prosecutor. This provision cannot come in the way of filing of a revision. Superintendent and Remembrancer of Legal Affairs V/s. Prafulla Majhi (decided by the Division Bench of Calcutta High Court and reported in 1977 Cr.L.J. 853) on which reliance is placed by the respondent, stood on its own facts and is of no assistance to the case of the respondent. There, the 14 appeal was filed by the Superintendent and Remembrancer of Legal Affairs, West Bengal, who was appointed as ex-officio Public Prosecutor by virtue of notification dated 11/10/1974, who otherwise was not qualified to be the Public Prosecutor and it was held by the Division Bench that the L.R. was not validly appointed Public Prosecutor by the notification dated 11/10/1974 and his presenting the petition of appeal under Section 378 of the new Code as Public Prosecutor was not valid act. Nevertheless, the Division Bench observed that since the L.R. was also ex-officio Secretary and is duly authorised under the Rules of Business to take on behalf of the State the executive act of filing the appeal on behalf of the State, the appeal must be held to have been presented by the appellant-State itself and so long a Public Prosecutor is not validly appointed, the State will be at liberty itself to prosecute the appeal or prosecute it through any lawyer duly authorised in that behalf. The Division Bench further held that any lawyer if and so appointed must file an appropriate power since exemption under Section 301(1) of the Code would not be available to him. The State must, at the same time, take immediate steps to appoint a Public Prosecutor in accordance with law and unless such an appointment is made within a reasonable time after this pronouncement it cannot have the protection under the maxim lex 15 non cogit ad impossibilia which the learned Division Bench had extended in its favour in the facts and circumstances of the case. 15.3. Alternatively, if we go by the analogy adopted by the learned Division Bench in Prafulla Majhi (supra), it can be seen that in this case the State Government had taken a decision on 30/07/2010 to file a revision. The revision was filed by the Police Inspector on 6/09/2010 and the State has now appointed a Special Public Prosecutor on 23/09/2010 to prosecute the revision. Therefore, it cannot be said that the present revision filed by the Police Inspector on behalf of the State is not maintainable as it is filed with the tacit approval of the State. 16. The second objection taken by the respondent in any view of the matter therefore needs to be rejected. 17. Coming to the merits of the revision, Shri Amonkar submits that the petitioner has challenged only the first part of the order of the learned Sessions Judge by which both the Courts have upheld the first objection taken that the doctrine of autrefois acquit is applicable to the case of the respondent/accused no.1. Learned Public Prosecutor next submits that the respondent has not 16 challenged the second part of the order by which the learned Additional Sessions Judge has held that there is prima facie evidence against the respondent for commission of offences under Section 143, 448, 506 r/w 149 IPC and therefore the trial against respondent/accused no.1 along with other accused is bound to proceed. As far as this last submission of Shri Amonkar is concerned the respondent has not been able to counter the same and in fact the learned Additional Sessions Judge after considering the material on record has come to the conclusion that there is prima facie evidence for the offence under Section 143, 448, 506 r/ w 149 IPC to frame the charge against respondent/accused no.1. 18. As far as the doctrine of autrefois acquit or double jeopardy is concerned there is no dispute that both the complaints/first information reports were filed on the same day. There is also no dispute as contended by the respondent, that in the case arising from the complaint of Sr. Celia Fernandes, Fr. Newton Rodrigues was cited as a witness and in the case arising from the complaint of Fr. Newton Rodrigues, Sr. Celia Fernandes was cited as a witness. It is also common ground that both the cases included an offence under Section 504 IPC amongst other offence/s. This much is common in both the cases. The points of difference are that the 17 case arising from the complaint of Sr. Celia Fernandes was under Section 504 and 509 IPC while the case arising from the complaint of Fr. Newton Rodrigues was under Sections 143,448,504,506 r/w 149 IPC. Another point of vital difference is that the offences alleged by Sr. Celia Fernandes were allegedly committed by the respondent on 5/08/2004 at 5.30 and 8.30 p.m. through telephone while they were in their convent, while the offences alleged by Fr. Newton Rodrigues took place in the parochial house on 16/08/2004 at 6.50 p.m. In other words, the offences in both the cases were allegedly committed at different times, on different dates and at different places. True the complaint of Sr. Celia Fernandes, inter alia, mentions that: “Today 16/08/2004, at around 6.30 p.m. we had come to attend Parish Pastoral Council sub-committee meeting at the church premises. Mr. Aires Rodrigues came with goondas and threatened us by saying that he is going to thrash us.” 19. The learned Chief Judicial Magistrate in his order dated 22/12/2009 referring to the above statement in the complaint of Sr. Celia Fernandes has proceeded to observe that the perusal of both complaints minutely and carefully discloses the fact that the incident of 16/08/2004 which is the basis for the FIR and charge sheet was also the basis for the FIR filed earlier by the said Sr. 18 Celia Fernandes against accused no.1 pursuant to which case bearing No. IPC 83/2006/C was filed by the Old Goa Police station against accused no.1 under Section 504 and 509 IPC. The learned Chief Judicial Magistrate has further observed that the complaints of Sr. Celia and Fr. Rodrigues clearly show that both the complaints relate to incident of