The other side placed reliance on the case reported as 2012 (4)
Mh.L.J. 760 (Babu Uligappa Batteli vs. State of Maharashtra &
Ors). This Court, Division Bench has squarely dealt with the point
involved in the present case and it is observed by this Court that
amendment to Section 372 of Cr.P.C. came into force on 31.12.2009
and as it has created substantive right in favour of victim, the said
provision cannot apply retrospectively, as there is no provision made
to make the application retrospective.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 280 OF 2000
Nandabai w/o Popatrao Warat,
Versus
Maruti Gopala Mehetre, (Ori. Accused)
CORAM : T. V. NALAWADE, J.
DATE OF PRONOUNCING
THE JUDGMENT
: 25.10.2012
The revision is filed against the judgment and order of appeal
No.9 of 1991 which was pending in the Court of Additional Sessions
Judge,
Ahmednagar.
The
judgment
and
order
of
J.M.F.C.
Ahmednagar delivered in R.C.C. No. 158 of 1988 is modified by the
appellate court and the conviction and sentence given to the
respondent-accused is converted from the offence punishable under
Section 325 of I.P.C. to one punishable under Section 323 of I.P.C.
Further the accused is sentenced to pay fine only. This decision is
challenged by the original complainant in the present proceeding. Both
sides are heard. This Court has perused the original record.
2.
Learned advocate for the petitioner made a prayer for converting
the present proceeding to criminal appeal. He submitted that in view
of the provisions of section 401(5) of Cr.P.C. such conversion is
possible. He submitted that by the amendment made to Section 372
of Cr.P.C. the right is given to the victim to file such appeal, and so,
such conversion is possible. This submission is opposed by the other
side.
3.
For the petitioner, reliance was placed on Articles 20 and 21 of
the Constitution of India. It was submitted that the procedural law can
be given retrospective effect and accused has no right in respect of
procedure which can be followed in criminal case filed against him.
On this port, both sides have cited some reported judgments.
4.
In the case reported as AIR 1927 Privy Council 242 (Delhi
Cloth and General Mills Vs. Income Tax Commissioner and
another), the Privy Council has laid down that the provisions touching
existing right are not ordinarily retrospective.
The term “existing
rights” is explained by Privy Council and it is laid down that if due to
application of amended provisions, the law would deprive all the
existing finality of orders which, when the statute came into force, were
final, are provisions which touch existing rights. In the case reported as
2010 (12) SCC 599 (National Commission for Woman vs. State of
Delhi and another) the Apex Court, in para 8, has made following
observations:-
“8.
Chapter XXIX of the Code of Criminal Procedure deals with
“Appeal(s)”. Section 372 specifically provides that no appeal shall
lie from a judgment or order of a criminal court except as provided
by the Code or by any other law which authorizes an appeal. The
proviso inserted by Section 372 (Act 5 of 2009) with effect from
31.12.2009, gives a limited right to the victim to file an appeal in the
High Court against any order of a criminal court acquitting the
accused or convicting him for a lesser offence or the imposition of
inadequate compensation. The proviso may not thus be applicable
as it came in the year 2009 (long after the present incident) and, in
any case, would confer a right only on a victim and also does not
envisage an appeal against an inadequate sentence. An appeal
would thus be maintainable only under section 377 to the High court
as it is effectively challenging the quantum of sentence.”
The other side placed reliance on the case reported as 2012 (4)
Mh.L.J. 760 (Babu Uligappa Batteli vs. State of Maharashtra &
Ors). This Court, Division Bench has squarely dealt with the point
involved in the present case and it is observed by this Court that
amendment to Section 372 of Cr.P.C. came into force on 31.12.2009
and as it has created substantive right in favour of victim, the said
provision cannot apply retrospectively, as there is no provision made
to make the application retrospective.
5.
It was submitted for the petitioner that question involved was the
right of third party in the case of National Commission for Woman
(cited supra) and the Apex Court has not squarely dealt with the point
involved in the present case. This Court holds that there is no force in
this submission. The observations made by the Apex Court which are
quoted already, show that they are on two points. The point of
retrospective application of this provision, proviso to Section 372 of
Cr.P.C. is also discussed by the Apex Court. These observations are
binding on this Court.
6.
By citing the case reported as 2005 Cr.L.J. 3071 SC (Pratap
Vs. State of Jharkhand), submissions were made for the petitioner
that in criminal law in many cases, retrospective operation is given
even when the right is created. In this reported case, the provisions of
Juvenile Justice Act 2000 are discussed by the Apex Court. The Apex
Court has laid down that this provisions need to be used for the benefit
of Juveniles, the persons who had not completed 18 years of age, on
the date of enforcement of the Act viz. 1.4.2001, and so even in some
pending cases to which this condition applies, the amended provision
can be used. In view of this observation of the Apex Court, it can be
said that when the amendment is intended to mollify the rigorous of
criminal law and particularly when such provisions are in favour of the
juveniles, it needs to be presumed that this provision is in the interest
of society. It does not affect the right of the person, against whom
allegations are made, as the provision is in his favour. This court
holds that such interpretation is not possible in the present case. The
original complainant is requesting for retrospective application and
retrospective application is bound to affect the rights of the accused for
the discussion already made and also for the discussion which is being
made later on.
7.
The case reported as 2010 Cri. L.J. 3751, Andhra Pradesh
High Court (Mohit Yadam & Anr. vs. State of Andhra Pradesh &
Ors) was also cited for the petitioner. In this case, the provisions of
Domestic Violence Act 2005 are discussed by the High Court. It is
observed that in view of definition of “Domestic Violence” given in
Section 2(q), previous incidents of domestic violence are covered
under the Act. It needs to be kept in mind that the provisions of
Domestic Violence Act have no direct penal consequence of conviction
and sentence as provided in Article 20 of the Constitution of India and
so such interpretation is possible.
8.
The powers of this Court of revision under Section 401 of
Cr.P.C. are very limited. The powers are discussed by the Apex Court
in the case reported as AIR 1951 SC 196 (D. Stephens vs.
Nosibolla). In subsequently decided cases, the powers are discussed
in more particulars when the powers are invoked by the private
complainant against the order of acquittal. In the case reported as
AIR 2010 SC 1140 (Sheetala Prasad and others Vs. Sri Kant and
Anr.) the Apex Court has laid down as follows:-
“Without making the categories exhaustive, revisional
jurisdiction can be exercised by the High Court at the instance of
private complainant (1) where the trial Court has wrongly shut out
evidence which the prosecution wished to produce, (2) where the
admissible evidence is wrongly brushed aside as inadmissible, (3)
where the trial Court has no jurisdiction to try the case and has still
acquitted the accused, (4) where the material evidence has been
overlooked either by the trial Court or the appellate Court or the
order is passed by considering irrelevant evidence and (5) where
the acquittal is based on the compounding of the offence which is
invalid under the law. By now, it is well settled that the revisional
jurisdiction, when invoked by a private complainant against an
order of acquittal, cannot be exercised lightly and that it can be
exercised only in exceptional cases where the interest of public
justice require interference for correction of manifest illegality or the
prevention of gross miscarriage of justice. In these cases, or cases
of similar nature, retrial or rehearing of the appeal may be ordered.”
In one more case, reported as 2008 Cri. L. J. 1627 SC (Johar
and others vs. Mangal Prasad and another) the Apex Court has
made following observations:-
“
For interference in the decision of the trial court, the High
Court is required to point out any error of law on the part of the
learned Trial Judge. It is observed that the High court is expected
to point out that any relevant evidence has been left out of its
consideration by the Trial Court or irrelevant material has been
taken into consideration.
It is observed that if such things are
absent, the High Court is not expected to enter into the merits of the
matter.”
In view of this position of law, this court holds that it is not
possible to convert the revision into appeal.
Such conversion will
definitely affect the rights of the accused as at the relevant time the
original complainant had no right to file the appeal.
9.
The facts of the present case show that house of the accused is
situated in front of the house of the complainant. The incident took
place on 15.10.1988 at about 7.00 a.m. The wife of the accused was
pouring water in front of her house and this water was going towards
the front portion of the house of the complainant. The complainant
requested the wife of the accused not to pour water and then quarrel
started. The persons from these two families gathered there. During
quarrel, there was pushing and pulling between the husband of the
complainant and the accused Maruti.
When the complainant
intervened, the accused gave fist blow on the face of the complainant.
Due to this blow, one tooth of the complainant got uprooted and two
teeth became loose. The complainant went to the police station and
gave a report against the accused and his wife. The crime No. 225 of
88 came to be registered in Nagar Tahsil police station for the offence
punishable under Sections 323, 325, 504 r.w. 34 of I.P.C.
The
complainant was referred for medical examination. After completion of
investigation, charge sheet came to be filed for all these offences. The
trial court acquitted the wife of the accused and the accused came to
be convicted for the offence punishable under Section 325 of I.P.C. as
the complainant had lost one tooth. The Sessions Court considered
the circumstance like the scuffle between two male persons of the two
families and has held that there is possibility that injury was not caused
voluntarily.
10.
Nanda (P.W.1), the complainant has given evidence that during
the incident, the accused Maruti gave a fist blow on her face and due
to said blow she lost one tooth and two teeth became loose in the
incident. Exh.20, F.I.R. given by the complainant is consistent on the
material points with the substantive evidence. Her evidence shows
that wife of the accused was carrying of 7 months at the time of
incident. Her evidence and evidence of spot panchnama show that
there is channel of drainage of water by the side of the road and on
either side of the road there are houses of these two families. There is
probability that the wife of the accused was pouring the water there, as
there was drainage channel.
11.
Popat (P.W.2), husband of the complainant has given similar
evidence. His evidence is that there was scuffle between him and the
accused. His banyan was torn in the incident. It can be said that there
is little bit inconsistency in his version and the version of the
complainant. The complainant has tried to show that the accused had
made Popat to fall on the ground and after that the accused assaulted
Popat when she intervened. The evidence of Popat shows that the
accused was probably only pushing him and in that attempt banyan
got torn.
12.
The spot panchnama Exh.23 shows that no blood was found on
the spot.
Both the Popat and his wife have given evidence that
neighbours gathered at the spot at the relevant time, however, no such
neighbour is examined by the prosecution to give independent
evidence. Thus, there are versions of the complainant and Popat
which can be called interested versions against the accused. One
Mohan (P.W.5) is examined to prove that tooth was produced by the
complainant and it was seized under panchnama Exh.34 by the police.
Dr. Pramod (P.W.4) is examined to prove that on 25.10.1988, the date
of incident, he had examined the complainant and he had found two
injuries on the face. One injury was caused to lower gum. There was
ex-poliation of right inciser tooth. The age of injury is given as within
six hours. Thus there is circumstantial evidence to corroborate the
evidence of the complainant.
13.
The aforesaid circumstances and the evidence show that the
quarrel started out of petty incident. There is possibility that there was
scuffle between male members of the two families, there is possibility
that the complainant tried to separate her husband and the accused
and in that attempt she sustained injury to her face. In such case, it
cannot be said that there was intention on the part of the accused to
cause such injury or he had knowledge that by such act, he was likely
to cause such injury. In view of such probabilities, it can be said that
view taken by the appellate court is possible view. In view of the
position of law already discussed, about the restriction on the power of
this Court, this Court holds that interference is not possible in the
decision of the Sessions Court. So Revision stands dismissed.
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