Case Note & Summary
The petitioner, Aires Rodrigues, was prosecuted by the State in C.C. No.85/2007/A under Sections 143, 448, 504, 506 read with 149 IPC. The learned Chief Judicial Magistrate (CJM) discharged the petitioner by order dated 22/12/2009. Aggrieved, the State preferred an appeal on 28/2/2010, which was registered as Criminal Appeal No.24/2010 and allotted to the Additional Sessions Judge, Panaji. The petitioner objected to the maintainability of the appeal on the ground that no appeal lies against an order of discharge under the Code of Criminal Procedure, 1973. The State then filed an application on 22/3/2010 seeking permission to convert the appeal into a revision petition. The Additional Sessions Judge, by order dated 26/3/2010, allowed the conversion, relying on the Allahabad High Court judgment in Mahesh Kumar v. State (1978 Cr.L.J. 390), which held that there is no bar in the CrPC to treat a revision as an appeal or vice versa, and procedural rules should advance justice. The petitioner filed a criminal revision before the Bombay High Court at Goa challenging this order. The High Court, per Justice N.A. Britto, heard the matter. The petitioner's counsel argued that the conversion was impermissible, but could not cite any decision of the Bombay High Court or the Supreme Court holding a contrary view. The High Court noted that in Maharashtra Small Scale Industries Development Corporation Ltd. v. Pradeep Wakhariya (2007 (2) Bom. C.R. (Cri.) 620) and Nilesh Raikar v. Ramakant S. Karekar (unreported, 13/12/2006), this Court had declined conversion in different contexts (from Section 482 to special leave appeal, and from revision to leave to appeal against acquittal), but those were distinguishable. The High Court found no error in the impugned order and dismissed the revision petition, upholding the Additional Sessions Judge's decision to allow conversion of the appeal into a revision.
Headnote
A) Criminal Procedure - Conversion of Appeal into Revision - Maintainability - Code of Criminal Procedure, 1973, Sections 397, 401 - The State filed an appeal against an order of discharge, which is not maintainable under CrPC. The Additional Sessions Judge allowed conversion of the appeal into a revision, relying on the principle that procedural rules should advance justice and there is no bar in CrPC to treat an appeal as revision or vice versa. The High Court upheld this order, noting that no contrary decision from the Supreme Court or this Court was cited. (Paras 2-6) B) Criminal Procedure - Procedural Flexibility - Justice-Oriented Approach - Code of Criminal Procedure, 1973 - The court followed the view in Mahesh Kumar v. State (1978 Cr.L.J. 390) that every procedure which advances dispensation of justice should be considered permissible unless prohibited. The High Court distinguished cases where conversion was declined (e.g., from Section 482 to special leave appeal) as different contexts. (Paras 4-6)
Issue of Consideration
Whether an appeal filed against an order of discharge, which is not maintainable, can be converted into a revision petition under the Code of Criminal Procedure, 1973.
Final Decision
The High Court dismissed the revision petition, upholding the order of the Additional Sessions Judge dated 26/03/2010 allowing conversion of the appeal into a revision.
Law Points
- Procedural law
- conversion of appeal into revision
- maintainability
- CrPC
- no bar to treat appeal as revision
