A two-judge Bench of Justice M.R. Shah and Justice Sanjiv Khanna has held that High Court while exercising its revisional jurisdiction under Section 401 CrPC cannot convert an order of acquittal into conviction.

The Court in this context, observed -

"...on a plain reading of sub-section (3) of Section 401 Cr.P.C., it has to be held that sub-section (3) of Section 401 Cr.P.C. prohibits/bars the High Court to convert a finding of acquittal into one of conviction."

In this case, The CJM, Thiruchapalli had convicted the accused of offences under Sections 147, 148, 324, 326, 307, 506(ii) r/w section 149 IPC and acquitted him of charges under Section 307 and 506(ii) IPC.

Against this conviction, the accused preferred an appeal in the court of Additional Sessions Judge against his conviction and the victims filed appeals against the acquittal of the accused in the abovementioned sections. The first Appellate Court acquitted the accused and dismissed the victims' appeals. Aggrieved by this, the victims filed Criminal Revision applications under Section 397 r/w 401 of the CrPC.

The High Court, in the exercise of its power under Section 401, set aside the judgment of the First Appellate Court and convicted the accused of offences other than the offences U/s. 307 & 506(ii) IPC and restored the judgment and order of conviction passed by the Trial Court.

S. Nagamuthu, learned Senior Advocate appearing on behalf of the accused contended that under its revisional jurisdiction u/s 401, CrPC, the High Court has no jurisdiction at all to convert a finding of acquittal into one of conviction. He argued that the only course open to the High Court would be to give its own finding and thereafter remit the matter either to the Trial Court or to the First Appellate Court, as the case may be. He further argued that once the victim has a statutory right of appeal against the order of acquittal under Section 372, Cr.P.C., the revision application before the High Court shall not be entertained against the judgment and order of acquittal.

Dr. Joseph Aristotle, Advocate appearing on behalf of the Respondent-State contended that the High Court could have treated the application for revision as a petition of appeal and dealt with the same accordingly as provided under sub-section (5) of Section 401 Cr.P.C.

The issues dealt with by the Court were -

i) Whether the High Court in the exercise of the revisional jurisdiction under Section 401 Cr.P.C. is justified in setting aside the order of acquittal and convicting the accused by converting the finding of acquittal into one of conviction?

The Court held that as per Section 401(3), there is a bar on the High Court to convert a finding of acquittal into one of conviction. It held that after giving its own findings on the findings recorded by the Court acquitting the accused and after setting aside the order of acquittal, the High Court has to remit the matter to the trial Court and/or the first appellate Court, as the case may be.

It was held -

"However, if the order of acquittal is passed by the first appellate court, in that case, the High Court has two options available, (i) to remit the matter to the first appellate Court to rehear the appeal; or (ii) in an appropriate case remit the matter to the trial Court for retrial and in such a situation the procedure."

ii) In a case where the victim has a right of appeal against the order of acquittal, now as provided under Section 372 Cr.P.C 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?

The Court held-

"It cannot be disputed that now after the amendment in Section 372 Cr.P.C. after 2009 and insertion of proviso to Section 372 Cr.P.C., 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 378 Cr.P.C., subject to the grant of special leave to appeal by the High Court."

iii) While exercising the powers under sub-section (5) of Section 401 Cr.P.C. treating the revision application as petition of appeal and deal with the same accordingly, the High Court is required to pass a judicial order?

The Apex Court held-

"Where under the Cr.P.C. an appeal lies, but an application for revision has been made to the High Court by any person, the High Court has jurisdiction to treat the application for revision as a petition of appeal and deal with the same accordingly as per sub-section (5) of Section 401 Cr.P.C., however, subject to the High Court being satisfied that such an application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do and for that purpose the High Court has to pass a judicial order, may be a formal order, to treat the application for revision as a petition of appeal and deal with the same accordingly."

In the light of these observations, the Court remitted the matter back to the High Court to treat the revision applications as petition of appeals under Section 372 Cr.P.C. and to decide the same in accordance with law and on their own merits and allowed the appeals.


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Supreme CourtJustice MR ShahJustice Sanjiv KhannaSection 401 CrPCRevisional JurisdictionMadras High Court

Nitya Bakshi