# Mahabir & Ors v. State of Haryana

- **Citation:** 2025 INSC 120
- **Court:** Supreme Court of India
- **Decided:** 2025-01-29
- **Case number:** Criminal Revision Application No. 194 of 2006
- **Bench:** J.B. Pardiwala, R. Mahadevan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mahabir-ors-v-state-of-haryana-38110
- **Pages:** 42

## Headnote

Whether the High Court committed any error in passing the
impugned judgment and order of conviction in exercise of its
revisional jurisdiction u/s.401 r/w. s.397 of the CrPC; Whether
Proviso to s.372 of CrPC creates a right in favour of victim; Is
Proviso to s.372 of CrPC an exception; Is Proviso to s.372 is
retrospective in operation.
Headnotes†
Code of Criminal Procedure, 1973 - s.401 r/w. s.397 - In the
Criminal Revision Application No. 194 of 2006 filed by the
original de facto complainant before the High Court against the
judgment and order of acquittal passed by the trial Court came
to be allowed and the appellants herein were held guilty of the
offence of murder punishable u/s.302 of IPC - Correctness:
Held: s.401 reads the High Court's powers of revision - s.401(3) lays
down that nothing in this section shall be deemed to authorize a High
Court to convert a finding of acquittal into one of conviction - The
bar u/s.401(3) CrPC is categorical and express - For High Court to
treat the revision as an appeal, the condition laid down u/s.401(5)
CrPC are required to be fulfilled i.e. when the High Court is satisfied
that application for revision was made under the erroneous belief
that no appeal lies and in the interest of justice, the High Court
may treat the application for revision as a petition of appeal - A
reasoned, speaking order was required to be passed recording
that conditions u/s.401(5) were fulfilled - However, in the instant
case no such procedure was adopted - The general provision on
appeals is s.372 CrPC which says that no appeal was permissible
other than provided for, in law - The Proviso to s.372 CrPC had not
* Author
1106
[2025] 1 S.C.R.
Supreme Court Reports
yet come into effect as on 19.01.2006 when the revision petition
was filed, for it was added only w.e.f. 31.12.2009 - The statutory
right of appeal by a victim against such acquittal arose only from
the date of the amendment w.e.f. 31.12.2009 - As the said revision
was filed by the father of the deceased on 19.01.2006 well before
the above amendment, such right was not available at the relevant
point of time - Therefore, the very first condition u/s.401(5) itself
would not have been possible to be fulfilled, i.e. the right of the
victim to appeal did not lie under the Code at the time of filing
the revision petition - As regards appeals against acquittals, the
relevant provision for appeals, and specifically for appeal to the
High Court are detailed out u/s.378 CrPC - Thus, only the State
had the statutory right to appeal against the order of acquittal in
2006, and indisputably, the State did not file appeal challenging
the said order of acquittal - Thus, the High Court committed an
egregious error in reversing the acquittal and passing an order
of conviction in exercise of its revisional jurisdiction and that too
without affording any opportunity of hearing to the appellants herein.
[Paras 33, 35, 36, 37, 38, 46]
Code of Criminal Procedure, 1973 - Proviso to s.372 - A right
created in favour of victim:
Held: The significant development that has taken place in this
provision is that a 'proviso' was added by the Amending Act No.5 of
2009 - The plain reading of the statement of objects and reasons for
introducing the proviso to s.372 CrPC makes it clear that it wanted
to confer certain rights on the victims - It has been noted therein
that the victims are the worst sufferers in a crime, and they don't
have much role in the court proceedings - They need to be given
certain "rights" and compensation, so that there is no distortion of
the criminal justice system - This, by itself, is clear that the object
of adding this proviso is to create a right in favour of the victim
to prefer an appeal as a matter of right - It not only extends to
challenge the order of acquittal, but such appeal can also be filed
by the victim if the accused is convicted for a lessor offence or
if the inadequate compensation has been imposed - Thus, it is
clear as per the golden r

## Text

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[2025] 1 S.C.R. 1105 : 2025 INSC 120
Mahabir & Ors.
v.
State of Haryana
(Criminal Appeal No(s). 5560-5561 of 2024)
29 January 2025
[J.B. Pardiwala* and R. Mahadevan, JJ.]
Issue for Consideration
Whether the High Court committed any error in passing the
impugned judgment and order of conviction in exercise of its
revisional jurisdiction u/s.401 r/w. s.397 of the CrPC; Whether
Proviso to s.372 of CrPC creates a right in favour of victim; Is
Proviso to s.372 of CrPC an exception; Is Proviso to s.372 is
retrospective in operation.
Headnotes†
Code of Criminal Procedure, 1973 - s.401 r/w. s.397 - In the
Criminal Revision Application No. 194 of 2006 filed by the
original de facto complainant before the High Court against the
judgment and order of acquittal passed by the trial Court came
to be allowed and the appellants herein were held guilty of the
offence of murder punishable u/s.302 of IPC - Correctness:
Held: s.401 reads the High Court's powers of revision - s.401(3) lays
down that nothing in this section shall be deemed to authorize a High
Court to convert a finding of acquittal into one of conviction - The
bar u/s.401(3) CrPC is categorical and express - For High Court to
treat the revision as an appeal, the condition laid down u/s.401(5)
CrPC are required to be fulfilled i.e. when the High Court is satisfied
that application for revision was made under the erroneous belief
that no appeal lies and in the interest of justice, the High Court
may treat the application for revision as a petition of appeal - A
reasoned, speaking order was required to be passed recording
that conditions u/s.401(5) were fulfilled - However, in the instant
case no such procedure was adopted - The general provision on
appeals is s.372 CrPC which says that no appeal was permissible
other than provided for, in law - The Proviso to s.372 CrPC had not
* Author
1106
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yet come into effect as on 19.01.2006 when the revision petition
was filed, for it was added only w.e.f. 31.12.2009 - The statutory
right of appeal by a victim against such acquittal arose only from
the date of the amendment w.e.f. 31.12.2009 - As the said revision
was filed by the father of the deceased on 19.01.2006 well before
the above amendment, such right was not available at the relevant
point of time - Therefore, the very first condition u/s.401(5) itself
would not have been possible to be fulfilled, i.e. the right of the
victim to appeal did not lie under the Code at the time of filing
the revision petition - As regards appeals against acquittals, the
relevant provision for appeals, and specifically for appeal to the
High Court are detailed out u/s.378 CrPC - Thus, only the State
had the statutory right to appeal against the order of acquittal in
2006, and indisputably, the State did not file appeal challenging
the said order of acquittal - Thus, the High Court committed an
egregious error in reversing the acquittal and passing an order
of conviction in exercise of its revisional jurisdiction and that too
without affording any opportunity of hearing to the appellants herein.
[Paras 33, 35, 36, 37, 38, 46]
Code of Criminal Procedure, 1973 - Proviso to s.372 - A right
created in favour of victim:
Held: The significant development that has taken place in this
provision is that a 'proviso' was added by the Amending Act No.5 of
2009 - The plain reading of the statement of objects and reasons for
introducing the proviso to s.372 CrPC makes it clear that it wanted
to confer certain rights on the victims - It has been noted therein
that the victims are the worst sufferers in a crime, and they don't
have much role in the court proceedings - They need to be given
certain "rights" and compensation, so that there is no distortion of
the criminal justice system - This, by itself, is clear that the object
of adding this proviso is to create a right in favour of the victim
to prefer an appeal as a matter of right - It not only extends to
challenge the order of acquittal, but such appeal can also be filed
by the victim if the accused is convicted for a lessor offence or
if the inadequate compensation has been imposed - Thus, it is
clear as per the golden rule of interpretation, that the 'proviso' is a
substantive enactment, and is not merely excepting something out
of or qualifying what was excepting or goes before - Therefore,
by adding the 'proviso' in s.372 of CrPC by this amendment, a
right has been created in favour of the victim. [Paras 52, 53, 54]
[2025] 1 S.C.R.
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Mahabir & Ors. v. State of Haryana
Code of Criminal Procedure, 1973 - Proviso to s.372 - Is
Proviso to s.372 an exception:
Held: Given the text of s.372 and the scheme of the Act, it is clear
that the proviso establishes an independent right, and must be
interpreted within that framework - s.372 forbids appeals unless
otherwise authorized by the Code, or by another law - The proviso,
however, states that the victim shall have the right to appeal under
certain circumstances - Given the rule enacted in s.372, it cannot
be said that the proviso to that provision carves out an exception
to the rule - According to the rule in s.372, appeals must be in
accordance with the Code; according to the proviso - which is
itself part of the Code - victims have the right to appeal under
certain circumstances - The proviso to s.372 dispenses with the
requirement of leave in case it is the victim who is appealing -
While s.372 enacts that no appeal shall lie except as provided
for by the Code, it refers to the various provisions of Chapter 29,
including the proviso, each of which prescribe the requirements
and procedures for appeals under different circumstances - The
proviso, therefore, is not an exception to s.372, but a stand-alone
legal provision. [Para 67]
Code of Criminal Procedure, 1973 - Is Proviso to s.372 is
retrospective in operation:
Held: In view of the various Supreme Court decisions, it is clear
that a statute which affects substantive rights is presumed to be
prospective in operation - In view of the aforesaid, the amendment
so made in s.372 CrPC by adding a proviso in the year 2009
creating a substantive right of appeal is not retrospective in
nature - A statute which creates new rights shall be construed
to be prospective in operation unless otherwise provided, either
expressly or by necessary implication - In the instant case, it
is, therefore, clear that in the year 2006 when the judgement of
acquittal was passed, the de facto complainant had no right to
challenge the impugned order passed in 2006 by way of filing the
appeal - In such circumstances sub section (5) of s.401 CrPC has
no application in the present case. [Paras 68-72]
Code of Criminal Procedure, 1973 - s.162 - Evidence Act,
1872 - s.145:
1108
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Supreme Court Reports
Held: The trial courts cannot independently use statements made to
the police that have not been proven, nor can it base its questions
on such statements if they conflict with the witness's testimony in
court - The phrase 'if duly proved' in s.162 of the CrPC indicates
that the statements of witnesses recorded by the police cannot be
immediately admitted as evidence or examined - They must first
be proven through eliciting admissions from the witness during
cross-examination and also during the cross-examination of the
Investigating Officer - While statements made to the Investigating
Officer can be used for contradiction, this can only be done after
strict compliance with s.145 of the Evidence Act - This requires
drawing attention to the specific parts of the statement intended for
contradiction - This is what is required u/s.145 of the Evidence Act
but even where a witness is confronted by his previous statement
and given an opportunity to explain that part of the statement that
is put to him does not constitute substantive evidence - There is a
catena of decisions laying down the principle in law that the material
elicited as contradiction by use of s.145 of the Indian Evidence
Act is not substantive evidence - Even in regard to the statement
recorded u/s.164 of the CrPC by authorised Magistrate, it has been
held accordingly - Therefore, the fact that the contradictions are
proved through the investigating officers though the witnesses
have denied having made such statements, does not translate
the contradictions into substantive evidence - Unless there is
substantive evidence, it cannot be acted upon legally particularly
to base a conviction. [Paras 80, 81]
Unlawful detention - Principle established:
Held: The principle is well established that in cases where there
can be no dispute of facts, the constitutional courts have the power
to award compensation in case a person has been deprived of
his life and liberty without following the procedure established by
law. [Para 84]
Code of Criminal Procedure, 1973 - Public Prosecutors -
Appointment should be on the basis of merit:
Held: The AGPs and APPs in respective High Courts should be
appointed solely on the merit of the person - The State Government
owes a duty to ascertain the ability of the person; how proficient
the person is in law, his overall background, his integrity etc. -
Public Prosecutor holds a "Public Office" - The primacy given to
[2025] 1 S.C.R.
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Mahabir & Ors. v. State of Haryana
him under the Scheme of CrPC has a "special purpose" - Certain
professional, official obligations and privileges are attached to his
office - His office may also be termed as an office of profit as he
remains disqualified to contest the election so long he holds the
office though permanency is attached to the office and not to the
term of his office - His duties are of public nature - He has an
"independent and responsible character" - He holds the public office
within the scope of a "quo warranto proceedings" - Prosecutor is
not a part of investigating agency but is an "independent statutory
authority" - He performs statutory duties and functions - He holds
an office of responsibility as he has been enclothed with the power
to withdraw the prosecution of a case on the directions of the State
Government. [Paras 92, 94]
Code of Criminal Procedure, 1973 - Public Prosecutors -
Importance of the office of the Public Prosecutor - discussed.
Case Law Cited
Bindeshwari Prasad Singh v. State of Bihar (now Jharkhand)
& Anr. [2002] Supp. 1 SCR 495 : (2002) 6 SCC 650; Joseph
Stephen & Ors. v. Santhanasamy & Ors. [2022] 8 SCR 182 :
(2022) 13 SCC 115; Ganesha v. Sharanappa & Anr. [2013] 12
SCR 400 : (2014) 1 SCC 87; Santhakumari & Ors. v. State of
Tamil Nadu & Ors. (2023) 15 SCC 440; A.N. Sehgal & Ors. v. Raje
Ram Sheoran & Ors. [1991] 2 SCR 198 : AIR 1991 SC 1406;
S. Sundaram Pillai & Ors. v. V.R. Pattabiraman & Ors. [1985] 2
SCR 643 : AIR 1985 SC 582; State of Bombay & Anr. v. United
Motors (India) Limited & Ors. [1953] 1 SCR 1069 : (1953) 1 SCC
514; State of Kerala & Anr. v. B. Six Holiday Resorts Private
Ltd. & Ors. [2010] 3 SCR 1 : (2010) 5 SCC 186; Mallikarjun
Kodagali (Dead) represented through Legal Representatives
v. State of Karnataka & Ors. [2018] 13 SCR 1 : (2019) 2 SCC
752; Hitendra Vishnu Thakur & Ors. v. State of Maharashtra &
Ors. [1994] Supp. 1 SCR 360 : (1994) 4 SCC 602; Sudhir G.
Angur & Ors. v. M. Sanjeev & Ors. [2005] Supp. 4 SCR 851 :
(2006) 1 SCC 141; Anees v. State Government of NCT [2024]
6 SCR 164 : 2024 SCC OnLine SC 757; D.K. Basu v. State of
West Bengal (1996) Supp. 10 SCR 284 : (1997) 1 SCC 416;
Nilabati Behera v. State of Orisa & Ors. [1993] 2 SCR 581 :
(1993) 2 SCC 746 - relied on.
1110
[2025] 1 S.C.R.
Supreme Court Reports
Jang Sing v. Brij Lal and Others [1964] 2 SCR 145 : AIR 1966
SC 1631; Manharibhai Muljibhai Kakadia & Anr v. Shaileshbhai
Mohanbhai Patel & Ors. [2012] 8 SCR 1015 : (2012) 10 SCC 517;
Bal Manohar Jalan v. Sunil Paswan & Anr. [2014] 7 SCR 900 :
(2014) 9 SCC 640; Nandini Satpathy v. P.L. Dani & Anr. [1978] 3
SCR 608 : (1978) 2 SCC 424; Government of Andhra Pradesh &
Ors. v. P. Laxmi Devi [2008] 3 SCR 330 : (2008) 4 SCC 720; Super
Cassettes Industries Ltd. v. State of Uttar Pradesh & Anr. [2009] 14
SCR 627 : (2009) 10 SCC 531; Ramesh Kumar Soni v. State of
Madhya Pradesh [2013] 1 SCR 1129 : (2013) 14 SCC 696; Kiran
Bedi v. Committee of Inquiry & Anr. [1989] 1 SCR 20 : (1989) 1
SCC 494; Vishwanath Agrawal v. Sarla Vishwanath Agrawal [2012]
7 SCR 607 : (2012) 7 SCC 288 - referred to.
Shiv Bhagwan Moti Ram Saraoji v. Onkarmal Ishar Dass AIR 1952
Bom 365 - referred to.
Books and Periodicals Cited
Law Commission of India's 154th Report, 1996.
List of Acts
Code of Criminal Procedure, 1973; Evidence Act, 1872.
List of Keywords
High Court's powers of revision; Revision as an appeal; Golden Rule
of Interpretation; Substantive Enactment; Compensation; Proviso's
retrospective Operation; Proviso's prospective in operation;
Revisional Jurisdiction; Cross-Examination; Contradiction;
Substantive Evidence; Investigating Officer; Public Prosecutor;
Criminal Law enforcement system; Statutory duties; Section
401 of Code of Criminal Procedure, 1973; Section 372 of Code
of Criminal Procedure, 1973; Proviso to section 372 of Code of
Criminal Procedure, 1973; Unlawful detention.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No(s).
5560-5561 of 2024
From the Judgment and Order dated 27.08.2024 and 02.09.2024
of the High Court of Punjab & Haryana at Chandigarh in CRR
No. 194 of 2006
[2025] 1 S.C.R.
1111
Mahabir & Ors. v. State of Haryana
Appearances for Parties
Advs. for the Appellants:
Ms. Indira Unninayar, Mrs. Rukhsana Choudhury.
Advs. for the Respondent:
Samar Vijay Singh, Ms. Sabarni Som, Keshav Mittal, Fateh Singh.
Judgment / Order of the Supreme Court
Judgment
J.B. Pardiwala, J.
1.
Since the issues raised in both the captioned appeals are the same
and the challenge is also to the self-same judgement and order passed
by the High Court, those were taken up for hearing analogously and
are being disposed of by this common judgement and order.
2.
We may clarify that the Criminal Appeal No. 5560 of 2024 arises
from the judgement and order passed by the High Court, reversing
the acquittal and holding the appellants herein guilty of the offence
of murder. Whereas Criminal Appeal No. 5561 of 2024 arises from
the order of sentence, which ultimately came to be passed by the
High Court.
3.
These appeals arise from the judgement and order passed by the
High Court of Punjab and Haryana at Chandigarh dated 27.08.2024
in Criminal Revision Application No. 194 of 2006 by which the criminal
revision filed by the original de facto complainant against the judgment
and order of acquittal passed by the trial court came to be allowed
and the appellants herein were held guilty of the offence of murder
punishable under Section 302 of the Indian Penal Code (for short,
"the IPC") and sentenced to undergo rigorous imprisonment for life
and fine of Rs. 50,000/- each and further, rigorous imprisonment for
3 months in default of payment of fine.
4.
"There is no higher principle for the guidance of the court than the
one that no act of courts should harm a litigant and it is the bounden
duty of the courts to see that if a person is harmed by a mistake
of the court he should be restored to the position he would have
occupied, but for that mistake."
1112
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Supreme Court Reports
5.
The above is aptly summed up in the maxim "actus curiae neminem
gravabit". It implies that judicial actions should not unfairly harm any
party and that courts should act judiciously to prevent errors that
could lead to injustice. (Jang Sing v. Brij Lal and Others reported
in AIR 1966 SC 1631).
6.
We need not delve much into the facts of the present case as our
order dated 13.12.2024 gives more than a fair idea as to how these
appeals have come up before us. The order reads thus:
"3. The three appellants herein along with three other
co-accused were put to trial for the offence of murder
punishable under Section 302 read with Section 148 and
149 of the Indian Penal Code, 1860. On conclusion of
the trial, the Trial Court held two co-accused guilty of the
alleged crime, whereas the other four, including three
appellants herein, came to be acquitted.
4. The State did not deem fit to challenge the acquittal
of the three appellants herein. One of the convicts went
in appeal before the High Court and the father of the
deceased in turn invoked the revisional jurisdiction of the
High Court under Section 401 read with Section 397 of the
Code of Criminal Procedure, 1973 seeking to challenge
the acquittal of the three appellants herein. It appears that
the appeal filed by one of the convicts against his order
of conviction came to be dismissed despite the fact that
the convict had already passed away.
5. In the revision application, which was filed by the
father of the deceased, the High Court held all the three
appellants herein guilty of the alleged offence of murder
and sentenced them to undergo life imprisonment. We
are informed that they were taken into custody on the
very same day the judgment was pronounced by the High
Court and now they are serving the sentence as imposed
by the High Court.
6. We are not able to understand, on what basis the
High Court in exercise of its revisional jurisdiction under
Section 401 read with Section 397 of the Code of Criminal
Procedure could have converted the finding of acquittal
into one of conviction. Sub-Section (3) of Section 401
[2025] 1 S.C.R.
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Mahabir & Ors. v. State of Haryana
reads thus: "(3) Nothing in this section shall be deemed
to authorize a High Court to convert a finding of acquittal
into one of conviction."
7.There is one another feature which has disturbed us.
According to the learned counsel the High Court proceeded
ex-parte without issuing notice to the three appellants
herein in the revision petition, who had already been
acquitted by the Trial Court.
8. We are also informed that the father of the deceased,
who had filed the revision application before the High
Court had also passed away much before the judgment
of the High Court.
9. Issue notice to the State of Haryana, returnable on 19th
December, 2024.
10. In such circumstances referred to above, all the
three appellants are ordered to be released on bail.
The substantive order of sentence passed by the High
Court is suspended till further orders. Accordingly, IA No.
285726/2024 stands disposed of.
11. Registry to call for the records and proceedings of
the Sessions Case No. 4 of 1988/2005, disposed of by
Additional Sessions Judge, Rewari, from the High Court
of Punjab & Haryana at Chandigarh."
CASE PUT UP BY THE APPELLANTS HEREIN
7.
The case pertains to an incident dated 13.03.1998. It was a day of
Holi festival. The incident was first reported by one Dharampal to
the police at 2:55 p.m. on 13.03.1998 itself within two hours of the
incident, stating that one Om Parkash s/o Shiv Lal (Complainant) and
Om Parkash S/o Chandgi Ram (deceased) had assaulted him, Murti
w/o Ram swarup and Usha, W/o Dayanand respectively. Dharampal
alleged that the two assailants climbed on to the roof of his house
and caught hold of him and in the scuffle, both of them fell down
from the roof and both of them also suffered injuries.
8.
However, the complaint lodged by Dharampal referred to above was
neither investigated nor any FIR was registered, for the reasons best
known to the Police.
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9.
Instead, an FIR came to be registered on the statement of the
above-mentioned Om Parkash S/o Shiv Lal (the Complainant) on
14.03.1998 i.e. one day later, implicating inter alia, the appellants
herein. This was followed by a further statement dated 15.03.1998,
naming Dharampal and Sri Chand, a senior citizen who walked with
the aid of a walking stick (baint) as accused.
10. Upon appreciation of oral as well as documentary evidence adduced
in the trial, the Sessions Court held that the prosecution had failed
to prove its case against the appellants/accused viz. Mahabir, Raj
Kumar, Dayanand and Krishan Kumar beyond reasonable doubt,
and accordingly, acquitted them vide its judgment and order dated
05.10.2005 passed in Sessions Case No. 4 of 1998/2005. The
Sessions Court, however, convicted Dharampal of the offence
under Section 302 read with Section 34 IPC. Since co-accused Sri
Chand passed away during the trial, the proceedings against him
stood abated.
11. No appeal was preferred by the State of Haryana against the said
judgment dated 05.10.2005 acquitting the appellants herein.
12. On 19.01.2006, Chandgi Ram, father of deceased Om Parkash,
preferred Criminal Revision being CRR-194-2006 (O&M), seeking
to challenge the acquittal of the appellants viz. Mahabir, Raj Kumar,
Dayanand and Krishan Kumar.
13. The convict Dharampal filed Criminal Appeal being CRA-752-DB-2005
(O&M) against the judgment of conviction dated 05.10.2005 and
order on sentence dated 08.10.2005.
14. Accused Raj Kumar s/o Raghbir Singh passed away on 24.02.2015.
The order dated 07.11.2019 indicates that service could not be
effected upon the appellants (respondents in the said Revision
Petition, CRR-194-2006), due to non-payment of process fee. As on
12.07.2022 too, the appellants who were respondents in the revision
petition were not served with the copy of the revision petition. The
counsel for the revisionist also informed the High Court that he had
no instructions in the matter. In December 2023, the revisionist
Chandgi Ram passed away; thus, there was no revisionist before
the High Court from the date of demise onwards, as well as, on
the date of final hearing. In February 2024, the convicted-accused,
Dharam Pal, also passed away. Hence, his conviction appeal also
[2025] 1 S.C.R.
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Mahabir & Ors. v. State of Haryana
stood abated, however, the same was not brought to the notice of
the High Court by the State.
15. On 21.08.2024, the High Court passed an order that since the
revisionist was not being represented by any counsel, the Court
was appointing legal aid counsel to assist the Court on behalf of
the revisionist in the revision petition. The Court further directed that
the legal aid counsel be supplied with the Paper book. On behalf
of the accused (appellants), a counsel was appointed to assist the
Court (without any corresponding order to supply the paper book to
him). Arguments were heard on the same day. The revision petition
and the conviction appeal were decided by the High Court and by
a common judgment and order dated 27.08.2024, the CRA-752DB-2005 filed by Dharampal was dismissed (O&M) and CRR-1942006 (O&M) was allowed.
16. After coming to know about the judgment reversing the acquittal,
the appellants surrendered/were taken into custody.
17. In such circumstances referred to above, the appellants are here
before this Court with the present two appeals.
SUBMISSIONS ON BEHALF OF THE APPELLANTS
18. Ms. Indira Unninayar, the learned counsel submitted that despite
an express statutory bar on reversing a finding of acquittal the High
Court in violation of this statutory bar, reversed the acquittal into a
conviction.
19. She submitted that the High Court in exercise of its revisional
jurisdiction has undoubtedly the power to set aside the acquittal,
but such interference is called for only in exceptional cases and that
too only for the purpose of re-trial. However, it is not permissible to
convert such acquittal to conviction. The only course left to it in such
exceptional cases, is to order retrial, which, was not done.
20. She submitted that no right of appeal was available to the victim
in law at the time the revision was filed and therefore, there was
no scope for the court to even treat the revision as an appeal that
'lay under the Code of Criminal Procedure (for short, "the CrPC" or
"Code")' at the time as provided for under Section 401(5) above.
21. Despite an express statutory bar on any order being passed to the
prejudice of the accused unless he has had an opportunity of being
1116
[2025] 1 S.C.R.
Supreme Court Reports
heard either personally or by pleader in his own defence, the High
Court proceeded to hear and pronounce its judgment without adhering
to the above. The above was also in violation of the principles of
natural justice, the right to access the criminal justice system, and
the constitutional right of the accused to be represented by a counsel
of their choice under Articles 21 & 22(1) read with 20(3) respectively
of the Constitution of India. Yet the matter proceeded without service
upon the accused.
22. The revision petition was filed on 19.01.2006. However, the High
Court's order dated 07.11.2019, indicates that - Service could not
be effected upon the appellants who were respondents in the said
revision petition, CRR-194-2006, due to non-payment of process fee.
23. The order dated 12.07.2022 reflects that the appellants who were
respondents in the revision petition were not served with the copy of
the revision petition, as of 12.07.2022. The counsel for the revisionist
had also informed the High Court that he had no instructions.
24. The order dated 21.08.2024 reflects that - since the revisionist
was not represented by a validly engaged counsel, the High Court
appointed a legal aid counsel to assist the Court on behalf of the
deceased revisionist. The said counsel was supplied with the paper
book. Arguments were heard on the same day and judgment was
reserved.
25. By way of abundant caution, the appellants had approached the
Registry of the High Court to obtain a 'Copy of Service Report in
CRR-194-2006' on 3.10.2024 and the Registry replied on 14.10.2024
that 'Required doc not available on DMS' and 'No Service Report is
available in CRR-194-2006 in this file'.
26. Neither the Counsel appointed by the Court had a chance to peruse
the record and prepare for any arguments to assist the Court, nor
did he had any occasion or opportunity to confer/contact/consult
with the appellants herein to seek instructions for defending their
acquittal and contesting the revision petition, as he was appointed
and asked to represent the accused/respondents there and then, on
the very same day, that the arguments were heard and judgement
reserved.
27. The above was in gross violation of the principles of natural justice
as well as the appellants' constitutional right to be represented by
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Mahabir & Ors. v. State of Haryana
a counsel of their own choice under Articles 21 & 22(1) respectively
of the Constitution of India.
SUBMISSIONS ON BEHALF OF THE STATE OF HARYANA
28. The learned counsel appearing for the State submitted that the High
Court in exercise of its revisional jurisdiction under Section 401 read
with Section 397 of the CrPC could not have reversed the acquittal
and passed an order of conviction. However he submitted that as
sub section (5) to Section 401 provides that if an appeal lies under
the CrPC, but an application for revision had been made to the High
Court by any person and if the High Court is convinced that such
application had been filed under the erroneous belief that no appeal
lies thereto, then in the interest of justice the High Court can treat
the application for revision as an appeal and deal with the same
accordingly.
29. According to the learned counsel appearing for the State, the High
Court in the case on hand, could have invoked sub section (5) of
Section 401 and with the aid of the proviso to Section 372 of the CrPC
could have treated the revision filed by the de facto complainant as
an appeal. However, even for the purpose of invoking sub section
(5) to Section 401 CrPC, the High Court has to pass an appropriate
order in that regard.
30. The learned counsel appearing for the State went to the extent
of submitting that although the proviso to Section 372 CrPC was
introduced sometime in 2009, i.e., after the judgment of acquittal yet
the High Court could have given retrospective effect to the proviso
to Section 372 and should have treated the revision application
filed by the de facto complainant as an appeal under Section 372
of the CrPC.
ANALYSIS
31. Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the only question that
falls for our consideration is whether the High Court committed any
error in passing the impugned judgment and order of conviction in
exercise of its revisional jurisdiction under Section 401 read with
Section 397 of the CrPC.
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RELEVANT PROVISIONS OF LAW
32. Section 397 CrPC reads thus:-
"397. Calling for records to exercise powers of
revision.-(1) The High Court or any Sessions Judge
may call for and examine the record of any proceeding
before any inferior Criminal Court situate within its or
his local jurisdiction for the purpose of satisfying itself or
himself; to the correctness, legality or propriety of any
finding, sentence or order, recorded or passed, and as to
the regularity of any proceedings of such inferior Court,
and may, when calling, for such record, direct that the
execution of any sentence or order be suspended, and if
the accused is in confinement that he be released on bail
or on his own bond pending the examination of the record.
Explanation.-All Magistrates, whether Executive or
Judicial, and whether exercising original or appellate
jurisdiction, shall be deemed to be inferior to the Sessions
Judge for the purposes of this sub-section and of section
398.
(2) The powers of revision conferred by sub-section (1)
shall not be exercised in relation to any interlocutory order
passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by
any person either to the High Court or to the Sessions
Judge, no further application by the same person shall be
entertained by the other of them."
33. Section 401 CrPC reads thus:-
"401. High Court's powers of revision.-(1) In the case
of any proceeding the record of which has been called
for by itself or which otherwise comes to its knowledge,
the High Court may, in its discretion, exercise any of the
powers conferred on a Court of Appeal by sections 386,
389, 390 and 391 or on a Court of Session by section 307,
and, when the Judges composing the Court of Revision
are equally divided in opinion, the case shall be disposed
of in the manner provided by section 392.
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Mahabir & Ors. v. State of Haryana
(2) No order under this section shall be made to the
prejudice of the accused or other person unless he has
had an opportunity of being heard either personally or by
pleader in his own defence.
(3) Nothing in this section shall be deemed to authorise
a High Court to convert a finding of acquittal into one
conviction.
(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.
(5) Where under this Code an appeal lies but an application
for revision has been made to the High Court by any person
and the High Court is satisfied that such 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,
the High Court may treat the application for revision as
a petition of appeal and deal with the same accordingly."
34. Section 401(3) says - "Nothing in this section shall be deemed to
authorize a High Court to convert a finding of acquittal into one of
conviction."
i.
Thus, the bar is categorical and express.
35. Section 401(5) says - "Where under this Code an appeal lies but
an application for revision has been made to the High Court by any
person and the High Court is satisfied that such 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 so, the High
Court may treat the application for revision as a petition of appeal
and deal with the same accordingly."
i.
For the High Court to treat the revision as an appeal, all of the
above conditions were required to be fulfilled.
ii.
And a reasoned, speaking order was required to be passed
recording that they were fulfilled.
iii.
However, no such procedure was adopted.
36. The general provision on appeals is Section 372 Cr PC which says -
No appeal to lie unless otherwise provided. - No appeal shall lie
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from any judgment or order of a Criminal Court except as provided
for by this Code or by any other law for the time being in force.
i.
Thus, no appeal was permissible other than provided for, in law.
37. The Proviso to the above had not yet come into effect as on
19.01.2006 when the revision petition was filed, for it was added
only w.e.f. 31.12.2009. The Proviso says - [Provided that 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 compensation, and such appeal shall lie
to the Court to which an appeal ordinarily lies against the order of
conviction of such Court.]
i.
Thus, the statutory right of appeal by a victim against such
acquittal arose only from the date of the amendment w.e.f.
31.12.2009. As the said revision was filed by the father of the
deceased on 19.01.2006 well before the above amendment,
such right was not available at the relevant point of time.
ii.
Therefore, the very first condition under Section 401(5) itself
would not have been possible to be fulfilled, i.e. the right of
the victim to appeal did not lie under the Code at the time of
filing the revision petition.
38. As regards appeals against acquittals, the relevant provision for
appeals, and specifically for appeal to the High Court, are detailed
out below:
a.
Section 378. Appeal in case of acquittal - Section 378 (1) says -
Save as otherwise provided in sub-section (2), and subject to
the provisions of sub-sections (3) and (5), -
b.
The relevant section pertaining to an appeal to the High Court is
Section 378(1)(b) which says - The State Government may, in
any case, direct the Public Prosecutor to present an appeal to
the High Court from an original or appellate order of an acquittal
passed by any Court other than a High Court [not being an
order under clause (a)] or an order of acquittal passed by the
Court of Session in revision.].
i.
Thus, only the State had the statutory right to appeal
against the order of acquittal in 2006, and
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Mahabir & Ors. v. State of Haryana
ii.
Indisputably, the State did not file appeal challenging the
said order of acquittal.
PRECEDENTS EXPLAINING THE POSITION OF LAW
39. This Court in Bindeshwari Prasad Singh v. State of Bihar (now
Jharkhand) & Anr. reported in (2002) 6 SCC 650, laid down that
there is a limit on the powers of the High Court as a Revisional
Court, prohibiting it from converting a finding of acquittal into one of
conviction. Para 12 reads thus: -
"12. We have carefully considered the material on record
and we are satisfied that the High Court was not justified
in reappreciating the evidence on record and coming to a
different conclusion in a revision preferred by the informant
under Section 401 of the Code of Criminal Procedure. Subsection (3) of Section 401 in terms provides that nothing
in Section 401 shall be deemed to authorize 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
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 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 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 Section 401
of the Code of Criminal Procedure in an appeal against
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acquittal by a private party. (See D. Stephens v. Nosibolla
[1951 SCC 184 : AIR 1951 SC 196 : 1951 Cri LJ 510],
K. Chinnaswamy Reddy v. State of A.P. [AIR 1962 SC
1788 : (1963) 1 Cri LJ 8] , Akalu Ahir v. Ramdeo Ram
[(1973) 2 SCC 583 : 1973 SCC (Cri) 903], Pakalapati
Narayana Gajapathi Raju v. Bonapalli Peda Appadu [(1975)
4 SCC 477 : 1975 SCC (Cri) 543 : AIR 1975 SC 1854]
and Mahendra Pratap Singh v. Sarju Singh [AIR 1968 SC
707 : 1968 Cri LJ 665] .)"
40. This Court in Joseph Stephen & Ors. v. Santhanasamy & Ors.
reported in (2022) 13 SCC 115, laid down that on a plain reading of
sub-section (3) of Section 401 CrPC, it has to be held that sub-section
(3) of Section 401 CrPC prohibits/bars the High Court to convert a
finding of acquittal into one of conviction. Para 10 reads thus:-
"10. Applying the law laid down by this Court in the aforesaid
decisions and on a plain reading of sub-section (3) of
Section 401CrPC, it has to be held that sub-section (3) of
Section 401CrPC prohibits/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 the
first appellate court, as the case may be."
41. This Court in Joseph Stephen (supra), holds that first, the High
Court has to pass a judicial order to treat an application for revision
as petition of appeal. The High Court has to pass a judicial order
because sub-section (5) of Section 401 CrPC 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 the application for
revision and to deal with the same as a petition of appeal, the High
Court has to record the satisfaction as provided under sub-section
(5) of Section 401 CrPC. Para 14 reads thus:-
"14. Now so far as the power to be exercised by the High
Court under sub-section (5) of Section 401 CrPC, namely,
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Mahabir & Ors. v. State of Haryana
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 for revision as petition of appeal.
The High Court has to pass a judicial order because subsection (5) of Section 401 CrPC 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
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 CrPC.