M. KASINATHAN Vs. P. MURUGAIYAN

JUDGEMENT

(1.) The petitioner is the de facto complainant in C.C. No. 381 of 2007 on the file of the learned District Munsif cum Judicial Magistrate, Neyveli. The first respondent herein is the sole accused in the said case. The second respondent had filed a police report alleging that the first respondent herein had committed an offence punishable under Section 406 I.P.C. and Section 6(2) r/w 6(3) of the Dowry Prohibition Act. The learned Magistrate, on completing the trial, by order dated 04.02.2010 acquitted the first respondent. The State did not chose to file any appeal against such acquittal, instead, the petitioner, being aggrieved by the order of acquittal, filed a revision before the learned Principal Sessions Judge, Cuddalore District in Crl.R.P. No.10 of 2011. The learned Sessions Judge, by order dated 01.03.2012, has dismissed the said revision holding that the said revision is not maintainable at the instance of the petitioner. Challenging the same, the petitioner has come up with this petition.

(2.) I have heard the learned counsel for the petitioner and also perused the records carefully. Despite service of private notice, the first respondent has not made appearance. I have also heard the learned Additional Public Prosecutor for the second respondent.

(3.) The learned counsel for the petitioner would submit that the lower Court has dismissed the revision on the erroneous conclusion that under Section 397 Cr.P.C., the said revision is maintainable at the instance of a private party. A perusal of the order of the learned Sessions Judge would go to show that it is not his stand that such revision is not maintainable because there is an alternative remedy of appeal instead the learned Sessions Judge has held that no revision could be maintained at the instance of a private individual in a case instituted on the police report. In my considered opinion, this conclusion arrived at by the learned Sessions Judge on the question of maintainability is directly against the provisions of Sections 397 and 401 of Code of Criminal Procedure. It is too well settled that a revision be made either suo motu or on a petition which includes a petition by a private party who is aggrieved by the impugned order. Thus, the reason stated by the learned Sessions Judge to hold that the revision is not maintainable is not correct. But, in my view, the said revision petition is not maintainable since the petitioner has got right of appeal. Sub section 4 of Section 401 of the Code of Criminal Procedure states that "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". From this, it is very clear that if the party concerned has got right of appeal then he shall not be entitled to file a revision.