JOSEPH STEPHEN AND OTHERSversusSANTHANASAMY AND OTHERS

182                      [2022]REPORTS
               SUPREME COURT    8 S.C.R. 182                [2022] 8 S.C.R.


A                     JOSEPH STEPHEN AND OTHERS
                                        v.
                      SANTHANASAMY AND OTHERS
                      (Criminal Appeal Nos. 90-93 of 2022)
B
                               JANUARY 25, 2022
                [M. R. SHAH AND SANJIV KHANNA, JJ.]
             Code of Criminal Procedure, 1973: s.401 – Whether in
      exercise of revisional jurisdiction under s.401, High Court can
C     convert a finding of acquittal into one of conviction and what is the
      procedure to be followed by the High Court – Held: sub-section (3)
      of s.401 prohibits/bars the High Court to convert 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 etc., however, after giving its own findings, on the
D
      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.
             Code of Criminal Procedure, 1973: s.401 – In a case where
E
      no appeal is brought though appeal lies under the Code, whether
      revision application still is to be entertained at the instance of the
      party who could have appealed – Held: In a case where the victim
      and/or the complainant, as the case may be, has not preferred and/
      or availed the remedy of appeal against the order of acquittal as
F     provided under s.372 or s.378(4), as the case may be, the revision
      application against the order of acquittal at the instance of the
      victim or the complainant, as the case may be, shall not be entertained
      and the victim or the complainant, as the case may be, shall be
      relegated to prefer the appeal as provided under s.372 or s.378(4),
      as the case may be.
G
             Code of Criminal Procedure, 1973: s.401(5) – Power of High
      Court under sub-section (5) of s.401 to treat the application for
      revision as petition of appeal – Held: Where under the Cr.P.C. an
      appeal lies, but an application for revision has been made to High
      Court by any person, High Court has jurisdiction to treat the
H
                                       182
 JOSEPH STEPHEN AND OTHERS v. SANTHANASAMY AND                           183
                     OTHERS

application for revision as a petition of appeal and deal with the       A
same accordingly as per sub-section (5) of s.401, 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 interest of justice so to do and for that purpose the
High Court has to pass a judicial order, may be a formal order, to
                                                                         B
treat the application for revision as a petition of appeal and deal
with the same accordingly.
     Allowing the appeals and remitting the matter to High Court,
the Court
      HELD: 1. On a plain reading of sub-section (3) of Section          C
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. Though the High Court has
revisional power to examine whether there is manifest error of
law or procedure etc., however, after giving its own findings on
the findings recorded by the court acquitting the accused and            D
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        E
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 as mentioned in paragraph 11 of the
decision in K. Chinnaswamy Reddy can be followed. Therefore,             F
in the present case, the High Court has erred in quashing and
setting aside the order of acquittal and reversing and/or
converting a finding of acquittal into one of conviction and
consequently convicted the accused, while exercising the powers
under Section 401 Cr.P.C. The order of conviction by the High            G
Court, while exercising the revisional jurisdiction under Section
401 Cr.P.C., is therefore unsustainable, beyond the scope and
ambit of Section 401 Cr.P.C., more particularly sub-section (3) of
Section 401 Cr.P.C. [Para 9][194-F-H; 195-A-C]

                                                                         H
184            SUPREME COURT REPORTS                       [2022] 8 S.C.R.


A            2.1 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
B
      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,
C     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. [Para 10.1][195-E-
      G]
D
            2.2 In a case where the victim and/or the complainant, as
      the case may be, has not preferred and/or availed the remedy of
      appeal against the order of acquittal as provided under Section
      372 Cr.P.C. or Section 378(4), as the case may be, the revision
      application against the order of acquittal at the instance of the
E     victim or the complainant, as the case may be, shall not be
      entertained and the victim or the complainant, as the case may
      be, shall be relegated to prefer the appeal as provided under
      Section 372 or Section 378(4), as the case may be. [Para
      10.2][196-B-C]
F            3.1 Now so far as the power to be exercised by the High
      Court under sub-section (5) of Section 401, Cr.P.C., namely, the
      High Court may treat the application for revision as petition of
      appeal and deal with the same accordingly is concerned, firstly
      the High Court has to pass a judicial order to treat the application
G     for revision as petition of appeal. The High Court has to pass a
      judicial order because sub-section (5) of Section 401 Cr.P.C.
      provides that if the High Court is satisfied that such revision
      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. While treating with the application for revision as petition
H
 JOSEPH STEPHEN AND OTHERS v. SANTHANASAMY AND                         185
                     OTHERS

of appeal and deal with the same accordingly, the High Court has       A
to record the satisfaction as provided under sub-section (5) of
Section 401 Cr.P.C. Therefore, 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
                                                                       B
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    C
as a petition of appeal and deal with the same accordingly. [Para
11][196-D-G]
       3.2 This Court may either set aside the impugned judgment
and order passed by the High Court setting aside the acquittal
and convicting the accused so as to enable the High Court to           D
remit the matter to the first appellate Court to rehear the appeal
after considering the findings recorded by it or to remit the matter
to the High Court to treat the revision application as a petition of
appeal against the order of acquittal, which otherwise is
permissible under sub-section (5) to Section 401 Cr.P.C. As such,
while exercising the powers under sub-section (5) to Section 401       E
Cr.P.C. to treat the revision application as a petition of appeal,
the High Court is required to pass a judicial order. However,
considering the fact that even otherwise being victims they are
having the statutory right of appeal as per proviso to Section 372
Cr.P.C., it is deemed fit and proper to remit the matter to the        F
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. The same would be in the
interests of all, namely, the victims as well as the accused, as the
appellate Court would have a wider scope and jurisdiction as an
appellate Court, rather than the revisional court. [Para 12][196-      G
H]
      K. Chinnaswamy Reddy v. State of Andhra Pradesh AIR
      1962 SC 1788 : [1963] SCR 412; Sheetala Prasad v.
      Sri Kant (2010) 2 SCC 190 : [2009] 16 SCR 686;
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186              SUPREME COURT REPORTS                        [2022] 8 S.C.R.


A              Ganesha v. Sharanappa (2014) 1 SCC 87 : [2013] 12
               SCR 400; Ram Briksh Singh v. Ambika Yadav (2004) 7
               SCC 665; Mallikarjun Kodagali v. State of Karnataka
               (2019) 2 SCC 752 : [2018] 13 SCR 1; D. Stephens v.
               Nosibolla AIR 1951 SC 196 : [1951] 0 SCR 284 –
               relied on.
B
                                Case Law Reference
      [1963] SCR 412                       relied on                 Para 3.1
      [2009] 16 SCR 686                    relied on                 Para 3.1

C     [2013] 12 SCR 400                    relied on                 Para 3.1
      (2004) 7 SCC 665                     relied on                 Para 3.1
      [2018] 13 SCR 1                      relied on                 Para 3.3
      [1951] SCR 284                       relied on                 Para 8 (b)
D           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
      Nos. 90-93 of 2022.
           From the Judgment and Order dated 14.05.2020 of the High Court
      of Madras at Madurai Bench in Crl. RC (MD) Nos. 323 to 326 of 2013.
            S. Nagamuthu, Sr. Adv., M. P. Parthiban, A. S. Vairawan, R.
E     Sudhakaran, Mrs. Shalini Mishra, T. Hari Hara Sudhan, Vikash G. R.,
      Advs. for the Appellants.
            Dr. Joseph Aristotle S., Ms. Preeti Singh, Ms. Nupur Sharma,
      Sanjeev Kumar Mahara, Advs. for the Respondents.

F              The Judgment of the Court was delivered by
               M. R. SHAH, J.
             1. Feeling aggrieved and dissatisfied with the impugned common
      judgment and order dated 14.05.2020 passed by the High Court of
      Judicature at Madras, Madurai Bench in Criminal Revision Application
G     Nos. 323 to 326 of 2013, by which the High Court, in exercise of its
      revisional jurisdiction under Section 401 Cr.P.C., has set aside the order
      of acquittal passed by the first appellate Court and has convicted the
      accused, original accused nos. 6 to 8 have preferred the present appeals.
               2. The facts leading to the present appeals in a nutshell are as
H     under:
 JOSEPH STEPHEN AND OTHERS v. SANTHANASAMY AND                               187
              OTHERS [M. R. SHAH, J.]

      That all the original accused were charged and tried for the           A
offences punishable under Sections 147, 148, 324, 326, 307, 506(ii) r/w
section 149 IPC. That the Chief Judicial Magistrate, Tiruchirapalli, by
judgment dated 28.09.2012, convicted the accused under the aforesaid
offences except Sections 307 and 506(ii) IPC and thereby acquitted the
accused under Sections 307 and 506(ii) IPC.
                                                                             B
        2.1 Feeling aggrieved and dissatisfied with the judgment and order
of conviction passed by the Chief Judicial Magistrate, Tiruchirapalli, the
accused preferred Criminal Appeal No. 92/2012 in the Court of III
Additional Sessions Judge, Tiruchirapalli (hereinafter referred to as the
‘first appellate Court’). Challenging the acquittal of the accused under
Sections 307 and 506(ii) IPC, the victims (private respondents herein)       C
filed Criminal Appeal Nos. 108 to 110 of 2012.
      2.2 The first appellate Court, vide judgment dated 18.01.2013,
allowed the appeal preferred by the accused and acquitted the accused.
The criminal appeals filed by the victims against acquittal of the accused
under Sections 307 and 506(ii) IPC came to be dismissed.                     D

      2.3 Feeling aggrieved and dissatisfied with the common judgment
and order passed by the first appellate Court allowing criminal appeal
No. 92/2012 preferred by the accused, the victims – private respondents
herein preferred criminal revision application nos. 323 to 326 of 2013
before the High Court under Section 397 r/w 401 Cr.P.C. By the impugned      E
judgment and order, while exercising the revisional jurisdiction under
Section 401 Cr.P.C., the High Court has set aside the judgment and
order passed by the first appellate Court allowing Criminal Appeal No.
92/2012 and acquitting the accused, and consequently has convicted the
accused for the offences other than the offences under Sections 307 &        F
506(ii) IPC and has restored the judgment and order of conviction and
sentence passed by the trial Court. The High Court has however modified
the sentences imposed by the trial Court.
       2.4 Feeling aggrieved and dissatisfied with the impugned common
judgment and order passed by the High Court reversing the acquittal          G
and thereupon convicting the accused, while exercising the revisional
jurisdiction under Section 401 Cr.P.C., original accused nos. 6 to 8 have
preferred the present appeals.
      3. Shri S. Nagamuthu, learned Senior Advocate appearing on
behalf of the accused has vehemently submitted that the High Court has
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188             SUPREME COURT REPORTS                            [2022] 8 S.C.R.


A     erred in reversing the acquittal and convicting the accused, while
      exercising the revisional jurisdiction under Section 401 Cr.P.C.
             3.1 Shri S. Nagamuthu, learned Senior Advocate appearing on
      behalf of the accused has heavily relied upon Section 401(3) Cr.P.C.
      Relying upon sub-section (3) of Section 401 Cr.P.C., it is vehemently
B     submitted that while exercising the revisional jurisdiction under Section
      401 Cr.P.C., the High Court has no jurisdiction at all to convert a finding
      of acquittal into one of conviction. It is submitted 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. Reliance is placed upon the decisions of this Court in
C
      the cases of K. Chinnaswamy Reddy v. State of Andhra Pradesh,
      AIR 1962 SC 1788; Sheetal Prasad v. Sri Kant, (2010) 2 SCC 190;
      Ganesha v. Sharanappa, (2014) 1 SCC 87; and Ram Briksh Singh
      v. Ambika Yadav, (2004) 7 SCC 665.
             3.2 Shri S. Nagamuthu, learned Senior Advocate appearing on
D
      behalf of the accused has further submitted that after the amendment in
      Section 372 Cr.P.C., by which proviso to Section 372 Cr.P.C. came to be
      inserted by Act 5 of 2009, w.e.f. 31.12.2009, the victim shall have a right
      to prefer an appeal against any order passed by the Court acquitting the
      accused or convicting for a lesser offence or imposing inadequate
E     compensation and as per the said proviso, such appeal shall lie to the
      Court to which an appeal ordinarily lies against the order of conviction
      of such Court. It is submitted that therefore 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. Reliance is placed
F
      on sub-section 4 of Section 401 Cr.P.C.
             3.3 Shri S. Nagamuthu, learned Senior Advocate appearing on
      behalf of the accused has also relied upon the decision of this Court in
      the case of Mallikarjun Kodagali v. State of Karnataka, (2019) 2
      SCC 752, by which the right of the victim to prefer an appeal against
G
      the order of acquittal has been recognised. It is submitted that as held by
      this Court, even in a case where the victim prefers an appeal against
      acquittal, he has an absolute right of appeal and therefore he is not required
      to even seek leave to appeal as required in case of “complainant” while
      preferring the appeal under Section 378(4) Cr.P.C.
H
 JOSEPH STEPHEN AND OTHERS v. SANTHANASAMY AND                                189
              OTHERS [M. R. SHAH, J.]

       3.4 Shri S. Nagamuthu, learned Senior Advocate appearing on            A
behalf of the accused has further submitted that assuming that the High
Court in exercise of powers under sub-section (5) of Section 401 Cr.P.C.
may treat the application for revision as a petition of appeal and deal
with the same accordingly, the High Court has to pass a judicial order to
treat the application for revision as a petition of appeal. It is submitted
                                                                              B
that in the present case, no such judicial order has been passed by the
High Court and the High Court has exercised the jurisdiction under Section
401 Cr.P.C. and has reversed the acquittal and has convicted the accused
which, as such, is not permissible and it is beyond the scope and ambit of
exercise of revisional jurisdiction under Section 401 Cr.P.C.
       3.5 Shri S. Nagamuthu, learned Senior Advocate appearing on            C
behalf of the accused has also tried to make submissions on merits and
has submitted that the first appellate Court gave cogent reasons while
acquitting the accused and recorded the findings in favour of the accused
which were not required to be interfered with by the High Court in
exercise of the revisional jurisdiction. However, for the reasons stated      D
hereinbelow, we propose to remand the matter to the High Court, we do
not propose to consider any of the submissions on merits of the case and
to go into whether the High Court on merits is justified in reversing the
order of acquittal and convicting the accused.
       4. Shri (Dr.) Joseph Aristotle, learned Advocate appearing on behalf   E
of the respondent-State has, as such, fairly conceded that in exercise of
powers under Section 401 Cr.P.C., the High Court could not have reversed
the acquittal and/or convert a finding of acquittal into one of conviction.
However, he has submitted 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.          F

       4.1 It is further submitted that even otherwise the victims in the
present case were having a right of appeal to the High Court against the
order of acquittal as provided under Section 372 Cr.P.C. It is therefore
submitted that even otherwise the victims could have preferred the appeal
before the High Court against the order of acquittal. It is submitted that    G
merely because mistakenly and/or inadvertently the victims preferred
revision applications, their right to appeal conferred under Section 372
Cr.P.C. could not have been taken away. Therefore, it is submitted that
either the revision applications preferred by the victims may be treated
as petitions of appeals in exercise of powers under sub-section (5) of        H
190                SUPREME COURT REPORTS                         [2022] 8 S.C.R.


A     Section 401 Cr.P.C. or the matter may be remanded to the High Court to
      convert the revision applications into appeals and to treat them as appeals
      under Section 372 Cr.P.C.
            5. Though served, no body appears on behalf of the private
      respondents – victims.
B            6. In rejoinder, Shri S. Nagamuthu, learned Senior Advocate
      appearing on behalf of the accused has opposed the prayer made on
      behalf of the respondent-State to treat the revision applications as appeals
      as per sub-section (5) of Section 401 Cr.P.C. It is submitted that firstly
      the High Court has to pass a judicial order to treat the revisional
C     applications as petitions of appeals and thereafter the High Court is
      required to give an opportunity to the accused as if the High Court is
      deciding the appeal against the order of acquittal. It is submitted that the
      scope and ambit of revisional jurisdiction and appellate jurisdiction is
      distinct and separate. It is submitted that while considering the revision
      application, the revisional court would have a limited scope, however,
D     while deciding the appeal, the appellate Court has a wide jurisdiction
      than that of the revisional jurisdiction.
            7. We have heard the learned counsel appearing on behalf of the
      respective parties at length.

E           Having heard the learned counsel for the respective parties, the
      following questions arise for the consideration of this Court:
            i)       Whether the High Court in 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
F                    converting the finding of acquittal into one of conviction?;
            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
G
                     instead of preferring an appeal?; and
            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?
H
 JOSEPH STEPHEN AND OTHERS v. SANTHANASAMY AND                                  191
              OTHERS [M. R. SHAH, J.]

       8. Now so far as the first issue, whether in exercise of the             A
revisional jurisdiction under Section 401 Cr.P.C., the High Court can
convert a finding of acquittal into one of conviction and what is the
procedure to be followed by the High Court, as such, the said issue is
now not res integra. On the aforesaid, few decisions of this Court, referred
to hereinabove, are required to be considered.
                                                                                B
      a) In the case of K. Chinnaswamy Reddy (supra), while
      considering the similar provision under the old Code, namely, Section
      439(4) Cr.P.C., it is observed and held that “though sub-section
      (1) of Section 439 of the Criminal Procedure Code authorised the
      High Court to exercise in its discretion any of the powers conferred
                                                                                C
      on a Court of Appeal by Section 423, yet sub-section (4) specifically
      excludes the power to convert a finding of acquittal into one of
      conviction”. It is observed that “at that stage the revisional court
      stops short of finding the accused guilty and passing sentence on
      him by ordering a retrial”. What order should be passed by the
      High Court in a revision application against the order of acquittal,      D
      while exercising the revisional jurisdiction, has been dealt with
      and considered in paragraph 11, which reads as under:
          “11. The next question is what order should be passed in a
          case like the present. The High Court also considered this
          aspect of the matter. Two contingencies arise in such a case.         E
          In the first place there may be an acquittal by the trial court. In
          such a case if the High Court is justified, on principles we have
          enunciated above, to interfere with the order of acquittal in
          revision, the only course open to it is to set aside the acquittal
          and send the case back to the trial court for retrial. But there
                                                                                F
          may be another type of case, namely, where the trial court has
          convicted the accused while the appeal court has acquitted
          him. In such a case if the conclusion of the High Court is that
          the order of the appeal court must be set aside, the question is
          whether the appeal court should be ordered to rehear the appeal
          after admitting the statement it had ruled out or whether there       G
          should necessarily be a retrial. So far as this is concerned, we
          are of opinion that it is open to the High Court to take either of
          the two courses. It may order a retrial or it may order the
          appeal court to rehear the appeal. It will depend upon the facts
          of each case whether the High Court would order the appeal
                                                                                H
192      SUPREME COURT REPORTS                            [2022] 8 S.C.R.


A        court to rehear the appeal or would order a retrial by the trial
         court. Where, as in this case, the entire evidence is there and
         it was the appeal court which ruled out the evidence that had
         been admitted by the trial court, the proper course in our opinion
         is to send back the appeal for rehearing to the appeal court. In
         such a case the order of the trial court would stand subject to
B
         the decision of the appeal court on rehearing. In the present
         case it is not disputed that the entire evidence has been led and
         the only defect is that the appeal court wrongly ruled out
         evidence which was admitted by the trial court. In the
         circumstances we are of opinion that the proper course is to
C        direct the appeal court to rehear the appeal and either maintain
         the conviction after taking into consideration the evidence which
         was ruled out by it previously or to acquit the accused if that is
         the just course to take. We should like to add that the appeal
         court when it rehears the appeal should not be influenced by
         any observations of the High Court on the appreciation of the
D
         evidence and should bring to bear its own mind on the evidence
         after taking into consideration that part of the evidence which
         was considered inadmissible previously by it. We therefore
         allow the appeal subject to the modification indicated above.”
      b) In the case of Ram Briksh Singh (supra), after considering
E     the decision in the case of K. Chinnaswamy Reddy (supra) and
      earlier decision in the case of D. Stephens v. Nosibolla, AIR
      1951 SC 196, it is observed and held that the High Court in a
      revision application against the order of acquittal and while
      exercising the powers of the revisional Court can set aside an
F     order of acquittal and remit the case for retrial where material
      evidence is overlooked by the trial Court.
      c) Again, in the case of Sheetala Prasad (supra), it is reiterated
      that Section 401(3) Cr.P.C. prohibits conversion of a finding of
      acquittal into one of conviction and in such cases retrial or rehearing
G     of the appeal might be ordered.
      d) In the case of Ganesha (supra), it is observed in pragraphs 10
      to 12 as under:
         “10. Section 386(a) thus authorises the appellate court to
         reverse an order of acquittal, find the accused guilty and pass
H        sentence on the person found guilty. However, sub-section (3)
JOSEPH STEPHEN AND OTHERS v. SANTHANASAMY AND                             193
             OTHERS [M. R. SHAH, J.]

     of Section 401 of the Code contemplates that the power of            A
     revision does not authorise a High Court to convert a finding
     of acquittal into one of conviction. On the face of it, the High
     Court while exercising the powers of revision can exercise all
     those powers which have been conferred on the court of appeal
     under Section 386 of the Code but, in view of sub-section (3)
                                                                          B
     of Section 401 of the Code, while exercising such power, cannot
     convert a finding of acquittal into one of conviction.
     11. However, in a case where the finding of acquittal is
     recorded on account of misreading of evidence or non-
     consideration of evidence or perverse appreciation of evidence,
     nothing prevents the High Court from setting aside the order         C
     of acquittal at the instance of the informant in revision and
     directing fresh disposal on merit by the trial court. In the event
     of such direction, the trial court shall be obliged to reappraise
     the evidence in light of the observation of the Revisional Court
     and take an independent view uninfluenced by any of the              D
     observations of the Revisional Court on the merit of the case.
     By way of abundant caution, we may herein observe that
     interference with the order of acquittal in revision is called for
     only in cases where there is manifest error of law or procedure
     and in those exceptional cases in which it is found that the
     order of acquittal suffers from glaring illegality, resulting into   E
     miscarriage of justice. The High Court may also interfere in
     those cases of acquittal caused by shutting out the evidence
     which otherwise ought to have been considered or where the
     material evidence which clinches the issue has been overlooked.
     In such an exceptional case, the High Court in revision can set      F
     aside an order of acquittal but it cannot convert an order of
     acquittal into that of an order of conviction. The only course
     left to the High Court in such exceptional cases is to order
     retrial.
     12. The view, which we have taken finds support from a               G
     decision of this Court in Bindeshwari Prasad Singh v. State
     of Bihar [(2002) 6 SCC 650 : 2002 SCC (Cri) 1448] , in which
     it has been held as follows: (SCC pp. 654-55, para 12)
        “12. … Sub-section (3) of Section 401 in terms provides
        that nothing in Section 401 shall be deemed to authorise a        H
194             SUPREME COURT REPORTS                              [2022] 8 S.C.R.


A                   High Court to convert a finding of acquittal into one of
                    conviction. The aforesaid sub-section, which places a
                    limitation on the powers of the Revisional Court, prohibiting
                    it from converting a finding of acquittal into one of conviction,
                    is itself indicative of the nature and extent of the revisional
                    power conferred by Section 401 of the Code of Criminal
B
                    Procedure. If the High Court could not convert a finding of
                    acquittal into one of conviction directly, it could not do so
                    indirectly by the method of ordering a retrial. It is well settled
                    by a catena of decisions of this Court that the High Court
                    will ordinarily not interfere in revision with an order of
C                   acquittal except in exceptional cases where the interest of
                    public justice requires interference for the correction of a
                    manifest illegality or the prevention of gross miscarriage of
                    justice. The High Court will not be justified in interfering
                    with an order of acquittal merely because the trial court
                    has taken a wrong view of the law or has erred in
D
                    appreciation of evidence. It is neither possible nor advisable
                    to make an exhaustive list of circumstances in which
                    exercise of revisional jurisdiction may be justified, but
                    decisions of this Court have laid down the parameters of
                    exercise of revisional jurisdiction by the High Court under
E                   Section 401 of the Code of Criminal Procedure in an appeal
                    against acquittal by a private party.”
              9. Applying the law laid down by this Court in the aforesaid
      decisions and 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/
F     bars the High Court to convert a finding of acquittal into one of conviction.
      Though and as observed hereinabove, the High Court has revisional
      power to examine whether there is manifest error of law or procedure
      etc., however, 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
G     the first appellate Court, as the case may be. As observed by this Court
      in the case of K. Chinnaswamy Reddy (supra), 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, in that case, the High Court has
H     two options available, (i) to remit the matter to the first appellate Court
 JOSEPH STEPHEN AND OTHERS v. SANTHANASAMY AND                                  195
              OTHERS [M. R. SHAH, J.]

to rehear the appeal; or (ii) in an appropriate case remit the matter to the    A
trial Court for retrial and in such a situation the procedure as mentioned
in paragraph 11 of the decision in K. Chinnaswamy Reddy (supra),
referred to hereinabove, can be followed. Therefore, in the present case,
the High Court has erred in quashing and setting aside the order of
acquittal and reversing and/or converting a finding of acquittal into one
                                                                                B
of conviction and consequently convicted the accused, while exercising
the powers under Section 401 Cr.P.C. The order of conviction by the
High Court, while exercising the revisional jurisdiction under Section
401 Cr.P.C., is therefore unsustainable, beyond the scope and ambit of
Section 401 Cr.P.C., more particularly sub-section (3) of Section 401
Cr.P.C. Issue no.1 is answered accordingly.                                     C
         10. Now so far as issue no.2, namely, in a case where no appeal
is brought though appeal lies under the Code, whether revision application
still to be entertained at the instance of the party who could have appealed,
the answer lies in sub-section (4) of Section 401 Cr.P.C. itself. Sub-
section (4) of Section 401 Cr.P.C. reads as under:                              D
      “(4) Where under this Code an appeal lies and no appeal is brought,
      no proceeding by way of revision shall be entertained at the instance
      of the party who could have appealed.”
       10.1 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       E
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
                                                                                F
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.,          G
subject to the grant of special leave to appeal by the High Court.
       10.2 As observed by this Court in the case of Mallikarjun
Kodagali (supra), so far as the victim is concerned, the victim has not
to pray for grant of special leave to appeal, as the victim has a statutory
right of appeal under Section 372 proviso and the proviso to Section 372        H
196             SUPREME COURT REPORTS                            [2022] 8 S.C.R.


A     does not stipulate any condition of obtaining special leave to appeal like
      sub-section (4) of Section 378 Cr.P.C. in the case of a complainant and
      in a case where an order of acquittal is passed in any case instituted
      upon complaint. The right provided to the victim to prefer an appeal
      against the order of acquittal is an absolute right. Therefore, so far as
      issue no.2 is concerned, namely, in a case where the victim and/or the
B
      complainant, as the case may be, has not preferred and/or availed the
      remedy of appeal against the order of acquittal as provided under Section
      372 Cr.P.C. or Section 378(4), as the case may be, the revision application
      against the order of acquittal at the instance of the victim or the
      complainant, as the case may be, shall not be entertained and the victim
C     or the complainant, as the case may be, shall be relegated to prefer the
      appeal as provided under Section 372 or Section 378(4), as the case
      may be. Issue no.2 is therefore answered accordingly.
             11. Now so far as the power to be exercised by the High Court
      under sub-section (5) of Section 401, Cr.P.C., namely, the High Court
D     may treat the application for revision as petition of appeal and deal with
      the same accordingly is concerned, firstly the High Court has to pass a
      judicial order to treat the application for revision as petition of appeal.
      The High Court has to pass a judicial order because sub-section (5) of
      Section 401 Cr.P.C. provides that if the High Court is satisfied that such
      revision application was made under the erroneous belief that no appeal
E
      lies thereto and that it is necessary in the interests of justice so to do.
      While treating with the application for revision as petition of appeal and
      deal with the same accordingly, the High Court has to record the
      satisfaction as provided under sub-section (5) of Section 401 Cr.P.C.
      Therefore, where under the Cr.P.C. an appeal lies, but an application for
F     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
G     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.
             12. Now the next question is what order should be passed in a
      case like the present. This Court may either set aside the impugned
H
 JOSEPH STEPHEN AND OTHERS v. SANTHANASAMY AND                                 197
              OTHERS [M. R. SHAH, J.]

judgment and order passed by the High Court setting aside the acquittal        A
and convicting the accused so as to enable the High Court to remit the
matter to the first appellate Court to rehear the appeal after considering
the findings recorded by it or to remit the matter to the High Court to
treat the revision application as a petition of appeal against the order of
acquittal, which otherwise is permissible under sub-section (5) to Section
                                                                               B
401 Cr.P.C. As observed hereinabove, as such, while exercising the
powers under sub-section (5) to Section 401 Cr.P.C. to treat the revision
application as a petition of appeal, the High Court is required to pass a
judicial order. However, considering the fact that even otherwise being
victims they are having the statutory right of appeal as per proviso to
Section 372 Cr.P.C., we deem it fit and proper to remit the matter to the      C
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. The same would be in the interests of all, namely,
the victims as well as the accused, as the appellate Court would have a
wider scope and jurisdiction as an appellate Court, rather than the            D
revisional court.
       13. In view of the above and for the reasons stated above, the
impugned common judgment and order passed by the High Court reversing
the acquittal and convicting the accused is hereby quashed and set aside.
The matters are remitted to the High Court. The High Court is directed         E
to treat the revision applications as appeals under Section 372 Cr.P.C.
and thereafter to decide and dispose of the same in accordance with
law on their own merits.
         14. The present appeals are accordingly allowed in the aforesaid
terms.                                                                         F

Devika Gujral                                               Appeals allowed.



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