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Can High Court convert acquittal into conviction in exercise of revisional powers under S. 401 CrPC? What Supreme Court held

The Bench framed the following issues and answered them thus:

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

Sub-section (3) of Section 401 CrPC bars the High Court from converting a finding of acquittal into one of conviction.

Though the High Court has revisional power to examine whether there is manifest error of law or procedure, after giving its own findings on the lower court order 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.

If the order of acquittal has been passed by the trial court, the High Court may remit the matter to the trial court and even direct retrial. However, if the order of acquittal is passed by the first appellate court, 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.

2. In a case where the victim has a right of appeal against the order of acquittal, now as provided under Section 372 CrPC 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?

In a case where the victim/complainant has not availed the remedy of appeal against the order of acquittal as provided under Section 372 or Section 378(4) CrPC, the revision application filed against the order of acquittal at the instance of the victim or the complainant shall not be entertained. The answer lies in sub-section (4) of Section 401 CrPC itself, the Court ruled.

3. While exercising the powers under sub-section (5) of Section 401 CrPC 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 High Court has to pass a judicial order to treat the application for revision as a petition of appeal. This is 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 to do so.

Source: Barandbench

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