ZAHOOR and anothers vs SAIDULIBRAR and anothers
This revision petition was filed against an order dismissing a private complaint for non-prosecution, which resulted in the acquittal of the accused respondents. The primary legal question addressed by the Court was whether a revision petition is maintainable against an order of acquittal passed under Section 247 of the Code of Criminal Procedure 1898, specifically when a right of appeal is provided under the statute. The Court held that an order of acquittal passed under Section 247, Code of Criminal Procedure 1898, is appealable under Section 417(2) of the Code of Criminal Procedure 1898, subject to the grant of leave to appeal. Consequently, the Court determined that the revision petition was not maintainable because Section 439(5) of the Code of Criminal Procedure 1898 bars a revision petition where a right of appeal is available. The key principle laid down is that the availability of a right of appeal, regardless of whether the acquittal was based on evidence or non-prosecution, precludes the filing of a revision petition under the Code of Criminal Procedure 1898.
- Is an order of acquittal passed under Section 247 of the Code of Criminal Procedure 1898 appealable?
- Can a revision petition be entertained when a right of appeal is provided under the Code of Criminal Procedure 1898?
- Does the distinction between an acquittal based on evidence and an acquittal based on non-prosecution affect the right of appeal under Section 417(2) of the Code of Criminal Procedure 1898?
- Section 247, Code of Criminal Procedure 1898
- Section 417(2), Code of Criminal Procedure 1898
- Section 249-A, Code of Criminal Procedure 1898
- Section 245, Code of Criminal Procedure 1898
- Section 439(5), Code of Criminal Procedure 1898
' The instant revision petition has been filed against the order, dated 2-1-2001 whereby the private complaint filed by the petitioners against the respondents was dismissed for non-prosecution resulting into acquittal of the accused respondents.
2. I heard the learned counsel for the petitioners regarding maintainability of the revision petition in view of the provisions contained in sections 247 and 417(2) of the Cr.P.C. The learned counsel for the petitioners referred to 'a case reported in 1997 PCr.LJ 162o wherein an order under section 249-A of the Cr.P.C. Granting acquittal to the 'accused was held to be not appealable and it was observed that only an order of acquittal passed under section 245, Cr.P.C. Passed on appraisal of evidence could be called in question through appeal under section 417, Cr.P.C. But when acquittal is granted without recording evidence or discussing evidence and mere on the ground of no possibility of conviction appeal was held to be not competent.
3. In rebuttal the learned counsel for accused-respondents relied on 1990 PCr.LJ 1699 where in identical circumstances when private complaint was dismissed in default under section 247, Cr.P.C.
The Appellate Court observed that such order of acquittal is appealable under section 417(2) of the Cr.F.C.
4. The learned State Counsel supported the contention of accused-respondents and submitted that the impugned order was appealable and due to availability of right of appeal revision is not competent.
5. After hearing the learned counsel for parties at length and going through the relevant provisions of the Cr.P.C. And the cited judgments I am of the view that an order passed under section 247, Cr.P.C. Is appealable under section 417(2) of the Cr.P.C. Subject to the grant of leave to appeal. It is immaterial whether the order of acquittal is passed on some evidence or for non-prosecution in a complaint case the aggrieved complainant could approach to this Court under section 417(2), Cr.P.C. For leave to appeal. Under section 439(5), Cr.P.C. No revision petition could be entertained where a right of appeal is provided under the Cr.P.C. In this view of the matter relying on a judgment reported in 1990 PCr.LJ 1699 I hold that the instant revision petition is not maintainable. I, therefore, dismiss this revision petition.
Revision .