Abdul Kadir vs Md. Mainuddin Ahmed and Others

Revision petitioner herein is the father of a person who was killed on 9-9-82. On the information given by the petitioner a case was registered and ultimately charge-sheet was laid against respondents 1 to 4 herein as accused for an offence u/s 302, IPC. In due course the case was committed to the Sessions Court and after trial Sessions Court acquitted the accused. The acquittal is sought to be challenged by the father of the deceased by way of this revision filed u/s 401 of the Code of Criminal Procedure, for short the Code. On 1-12-86 when the case came up for admission, the learned single Judge passed an order:-

"Let this matter be placed before a Division Bench as this is an appeal against acquittal of the respondents in an offence u/s 302/34, IPC."

On 2-1-89 the Division Bench before which the case came up for admission passed an order -

"The revision petition is admitted."

The case came up for hearing before one of us and there was a doubt expressed whether the revision petition is to be heard by a single Judge or a Division Bench. It is to decide this controversy, this matter has come up before us.

Rule 7 of the Gauhati High Court Rules reads thus -

"7. A division Court for the hearing of cases of appeal, reference or revision in respect of the sentence or order of any Criminal Court shall consist of two or more Judges:-

Provided that a single Judge may hear any appeal, reference, revision and applications in all criminal matters except those in which sentence of death, or the imprisonment for life is passed;

Provided further that such Judge may refer any particular case he thins fit to a Division Court:

Provided also that it shall be competent for a single Judge to pass any interlocutory order in any appeal or revision or any other matter preferable before a Division Bench, unless otherwise ordered by a Division Bench."

Rule 7 lays down that a single Judge may hear any appeal, reference, revision and application in all criminal matters except those in which sentence of death, or the imprisonment for life is passed. Obviously the reference is to case of conviction where the sentence of death or the imprisonment for life is passed. Reference cannot be to a case of acquittal since in such cases no sentence is passed. It is, therefore, clear that revision against acquittal is to be heard by a single Judge and not by a Division Bench, except where a single Judge refers it to a Division Bench.

The question which next arises for consideration is whether the case is to be treated as an appeal against an acquittal. It cannot be treated as appeal against acquittal for two reasons. The first reason is that the petitioner himself has filed this petition as a revision petitioner u/s 401 of the Code and not as an appeal u/s 378 of the Code. While undoubtedly it is open to a de facto complainant to file a revision against a judgment of acquittal, it is not open to him to file an appeal against acquittal. Appeal against acquittal can be filed by the State under Sub-sections (1) and (2) of Section 378 of the Code or by the complainant in a case instituted upon a complaint under Sub-section (4) of Section 378 of the Code the present is not a case instituted on a complaint, it is a case instituted on a final report u/s 173 of the Code. Hence Sub-section (4) of Section 378 of the Code is not attracted. The de facto complainant cannot seek to file an appeal u/s 378 of the Code and there is no other provision in Code permitting an appeal against acquittal. For these reasons also the present petition cannot be regarded as an appeal against acquittal.

For the above reasons we hold that the present one is only a revision petition u/s 401 of the Code and is, therefore, to be heard by a single Judge. Order accordingly.