1. S.B. CRIMINAL REVISION PETITION NO.1194/2007 (Shaitan Singh Vs. State of Raj. & Ors.) DATE OF ORDER : 12.05.2008 HON'BLE MR. JUSTICE DEO NARAYAN THANVI Mr. P.S. Bhati for the petitioner. Mr. L. R. Upadhayaya, Public Prosecutor. Mr. Doongar Singh for respondents No.2 and 3. 1. Heard learned counsel for the parties. 2. This revision petition has been filed against the order dated 15.3.2004 passed by the learned Addl. Chief Judicial Magistrate, No.7, Jodhpur, whereby, the non petitioners Jabar Singh and Nathu Singh were acquitted for offence under Sections 341, 325/323 and 452 IPC on the basis of the challan filed by the police in criminal case No.170/2000. This case was instituted on the FIR lodged by the petitioner Shaitan Singh at police station Luni on 19.4.98. 3. Against this order of acquittal, previously a revision petition was filed before the learned Addl. Sessions Judge, Jodhpur under Section 397 Cr.P.C. and the same was dismissed on 3.11.2004 by observing that no revision is maintainable under Section 397 Cr.P.C. against the order of acquittal passed by the Magistrate and the remedy available in such cases is only the appeal against the order of acquittal under Section 378 Cr.P.C. Against this order of dismissal of the revision, petitioner invoked two remedies, firstly, he has filed leave to appeal against the order of acquittal, which was dismissed by this Court 2. on 15.12.2004, wherein, it has been held that appeal against acquittal under Section sub-section (4) of 378 Cr.P.C. can be preferred only by the complainant in a case instituted otherwise than on police report. Thereafter,the petitioner also challenged the order of the learned Sessions Judge by way of petition under Section 482 Cr.P.C. before this Court and the learned Single Judge of this Court vide order dated 25.2.2005, found no infirmity in the order of the learned Addl. Sessions Judge with regard to non maintainability of the revision against the order of acquittal. Against this,the petitioner went to the Hon'ble Supreme Court, where, the Special Leave to Appeal was dismissed as withdrawn. The relevant order of the Hon'ble Supreme Court is as under: “Learned counsel for the petitioner seeks leave to withdraw this petition with liberty to file appropriate proceedings before the High Court against the order of acquittal, namely, a petition under Section 401 of the Code of Criminal Procedure. The Special Leave Petition, as prayed, is dismissed as withdrawn.” 4. Now the question for consideration is as to whether this court should interfere in this revision, which is second in nature, in the light of above order. 5. Learned counsel for the petitioner while relying upon the decision of the Hon'ble Supreme Court in Prasanta Kumar Dey Vs. State of West Bengal and another, reported in AIR 2003 SC 4412 has submitted that second revision in this court is maintainable in the peculiar circumstances and the same has 3. been filed by seeking directions from the Hon'ble Supreme Court and all these facts were brought to the Hon'ble Supreme Court, when special leave petition was filed. Whereas, learned counsel for the non-petitioners submits that this second revision is not maintainable, being barred by Section 397(3) Cr.P.C. 6. It is true that in this case, the petitioner has not been heard on merits by any of the court except the trial court and has been denied justice on technical grounds regarding maintainability or non maintainability of the revision petition under Section 397 Cr.P.C. or exercise of inherent powers under Section 482 Cr.P.C. But, whatever facts have been brought to the notice of this court including the order of the Hon'ble Supreme Court, will it proper for this court to interfere in this second revision. 7. The position of law as contained in Criminal Procedure Code as amended from 23.6.06 by Act 25 of 2005 is that when a person is acquitted by a court of Magistrate in a case instituted on a police report, then under sub-section (1) of Section 378 Cr.P.C., the State can prefer an appeal against the order of acquittal to the court of sessions, and to this Court, if the order of acquittal is passed by the Sessions. Whereas prior to this amendment right to hear appeal against acquittal was only to the High Court. Under Section 378(4) Cr.P.C., if the case is instituted otherwise than on police report i.e. complaint case, the complainant has right to file appeal in the High Court directly against the order of acquittal. However, when a case is instituted on a police report and otherwise than on police report i.e. compliant case either State or complainant respectively does not file appeal, there is no right of appeal given to an aggrieved person, who has filed FIR in a case instituted on a police report 4. to file appeal against order of acquittal. His remedy is only either to file revision petition before the Sessions Court under Section 397 Cr.P.C. or in the High Court, because the power of revision under Section 397 Cr.P.C. are similar to that of the Sessions and to that of the High Court, but as a matter of prudence, the party should first approach to the Sessions Court as held by this Court vide order dated 23rd April, 2008, passed in the bunch of cases, led by S.B.Criminal Revision Petition No.753/2006 (Natwar Lal Vs. State & Ors.). 8. Any how, in this case, the informant in a case instituted on a police report approached the Sessions Court by way of revision under Section 397 Cr.P.C., but it was dismissed as not maintainable, though, he ought not to have done so, because under Section 378 no right of appeal has been given to a private party in a police report. Consequently, the petitioner has approached this court in appeal against the order of acquittal, which was rightly dismissed on 15.12.2004. The petitioner has also invoked second remedy by filing petition under Section 482 Cr.P.C. before this Court but that too was dismissed on the ground that the order of the learned Sessions Judge requires no interference vide order dated 25.2.2005. Normally, when the Sessions Judge while exercising powers under Section 397 Cr.P.C. passes any order than the aggrieved party has no other remedy except to file petition under Section 482 Cr.P.C. before this Court, but when the petition under Section 482 Cr.P.C. was not entertained by this Court, then the petitioner without invoking power of review or otherwise approached to the Hon'ble Supreme Court and the Hon'ble Supreme Court has also given liberty to file appropriate proceedings before the High Court namely the petition under Section 401 Cr.P.C. 5. 9. From the bare perusal of the above order of the Hon'ble Supreme Court, it appears that no direction was given by the Hon'ble Supreme Court that the High Court should entertain the petition under Section 401 Cr.P.C. The petitioner has been given liberty to file petition under Section 401 Cr.P.C. Now, the question which is to be seen is as to whether the High Court should in the above circumstances entertain this revision petition in exercise of jurisdiction under Section 397 Cr.P.C. read with Section 401 Cr.P.C. Sub-section (3) of Section 397 Cr.P.C. clearly bars the High Court or the Sessions Court to entertain the second revision. The present petition is undoubtedly a second revision. The Hon'ble Supreme Court in the above order has no where directed that the High Court should interfere under Section 401 Cr.P.C. despite there being statutory bar under Section 397(3) of Cr.P.C. 10. The law cited by the learned counsel for the petitioner is all together different. In this cited case, first the revision was dismissed and thereafter, the petition under Section 482 Cr.P.C. was filed in the High Court for exercising powers under Section 482 Cr.P.C. The Hon'ble Supreme Court held that the High Court should not have denied relief to the petitioner in a maintenance case merely on the ground that it was in the nature of a second revision. Here in the present case, the petitioner after availing all the remedies i.e. filing revision in the Sessions Court and against that order appeal in this court and also petition under section 482 Cr.P.C. and SLP in the Supreme Court has come for the second time by way of revision. Though, he has not been heard on merits by any of the Courts, but, keeping in view the provisions contained in Section 397(3), if this court interfere again in this revision petition despite there being statutory bar, it will be an endless process of law, which can safely be termed as 6. an abuse of the process of court and will not serve the ends of justice in a ten years' old criminal case triable by Magistrate. 11. Consequently, this revision petition is dismissed. (DEO NARAYAN THANVI), J. ms rathore