J.lO v. RAMDEO RAM

DUA, J : This is an appeal by special leave. The three appel- lants and one Ramchander Kann were tried in the court of the 2nd Assistant Sessions Judge, Chapra for offences under ss. 307 and 307_/ 109, I.P.C. Akalu Ahir and Chandrika Singh were charged under s. 307 I.P.C. for. firing pistol shots and i:un shots at Ramdeo Ram at 11.00 p.m. on June 13, 1966, whereas Jagarnath and Ramchander Kanu were charged under ss. 307/109, I.P.C. for·having abetted commission of the aforesaid offence. . G H The occurrence is stated to~ be an off-shoot of election rivalry arising out of the election for the office of Mukhia _of village Arakpur. Indeed the enmity between the two rival gronps was of lon.z standing and is not denied. But enmity as usual is a double-edged weapon, providing motive both for the offence as well as for false implication. The evidence in such a case, has, therefore, to be scrutinised with care so that neither the guilty party wrongly escapes on the plea of enmity, nor an innoce. Jlt ·person gets wrongly convicted on that basis. In this case there were three eye witnesses. Ramdeo Ram, the victim of the fire shots, appeared as P. W .1. Puljharia as P. W. 9 and 132 SUPREME COURT REPORTS [ 1974 j 1 S.C.R. . / Ploughman Bhuidhar Chamar as P. W. 10. The ·trial Judge after consTderincr the evidence· oi:t the record. felt no doubt about the fact that Ramdeo Ram had been injured by gun shots, but he did not feel impressed by the prosecution evidence w~th respect to the ~ann~r in which the occurrence had taken place, with the result ·that m _his opinion, the prosecution had not been able to prove the charges agamst the eccused persons beyond reasonable· doubt. The State did not file any ~ppcaJ against the order of acquittal. Ramdeo Ram, the victim of the gun shots, however, presented in the Hiuh Court in January, 1969 a revision petition under ss. 435 the four accused per and 439, Cr.P.C. from the order acquitting sons. From a note on the printed application for revision, it appears that the name of Jagamath Kanu was expunged from the array of respondents in the revision: vide, court's order dated Ju~y 3, 1969. The High Court at the ·outset noticed that the scope of mterference · in revision at the .instance of private parties in cases of acquittal is In this connection, it referred to the followin;;: four very limited. decisions of this Court : - · A n ·c D (i) D. Stenbens v. Nosibol/a( 1) (ii) logendranath Iha v .. Polai/al Biswas(2 ) (iii)· K. C. Reddy v. State of Andhra Pradesh(•) and (iv) Mohendra Pratap Singh v. Sarju Singh & another(<) After quoting from K. C. Reddy (supra), the categories of cases· attracting interference by a High Court on a private ·party's revision and the observation that the said list was not exhaustive of all the circumstances in which a High Court may interfere and that other E defect in the jndgment under .revision mnst be analogous to those actually indicated, the . High Court proceeded to consider the case, professedly keeping those limits in view. It then criticised the ap praisal of the evidence by the trial court and found fault with several observations made by that court in such appraisal. The reasons re corded by the trial court for rejecting the evidence of P. W .1, Ramdeo Ram and of his wife Pnljharia, P. W. 9, were considered by the High Court to be "much too infirm". The High Court also felt that the evi dence of Ramdeo Ram had been misread by the trial court when it observed that his statement to the police was not in conformity \vith ·his evidence in court.·. The result of this unfortunate misreading of the ·evidence, in the opinion of the High Court, was that the evidence of an important witness like Ramdeo Ram had not received proper consideration ·at the hands of the trial Judge: 111e contradictions G found ·by the trial Court in the evidence of Puljharia, P.W. 9 was also not considered by the High Court to be material as in its view the occurrence such contradictions h"ad no bearing on the manner of identity bnt could only have some relevance to the question of the of the culprits. Feeling dissatisfied with the manner in which the trial court ·had sought to explain away the evidence of two out of three eye witnesses, the High Court felt that the acquittal of the accused H F (l} [1951] S.C.R. 284. (3) [1963] 3 S.C.R. 412. (2) [1951] S.C.R. 676. (4) (1968]2 S.C.R. 237 •. • ,, AKALU AHIR v. RAMDEO tDua, !.) 133 A B c D E F G could not be allowed to stand. Considering th~ to be an exceptional case, the High Court allowed the revision and, setting aside the acquit tal, sent the case back for re-trial. On appeal in this Court. it was contended that the High Court had over-stepped the limits of its power in dealing with revisions It was against orders of acquittal at the instance of private parties further contended that as a court Of revision, the High Court was not justified in examining the evidence as if it was a court of appeal and was. as such, required to see if the evidence had been correctly appraised by the trial court. Finally it was strenuously pressed order directing a re-trial on the facts and circumstances of this case was not only uncalled for but was calculated to result in grave in justice to the appellant. Turning first to the legal position, it is necessary to bear in mind that an appeal is a creature of statute and there is no inherent right In U.J.S. of appeal. Section 404, Cr.P.C. expressly so provides. Chopra v. State of Bombay(') while discussing the historical back ground of s. 439(6), Cr.P.C., S. R. Das, J., as then he was, pointed out that in England there is no provision for an appeal by the Crown against an order of acquittal and in our country s. 407 of the Code of Criminal Procedure 1861 prohibited an appeal from acquittal. The Code of Criminal Procedure 1872 by s. 272 permitted the Government to an. appeal from acquittal and this was repeated in s. 41 7 of the Code of Criminal Procedure 1882 and again in 1898. The object of limiting the right of appeal against the orders of acquittal to the State Govern ment was to ensure that such appeals are filed only when there has been miscarriage of justice and not when inspired by vindictiveness. A pri vate party had, therefore, no right of appeal. The aggrieved party could, however, move the authorities concerned to consider the question -of presenting an appeal against acquittal. This indicates that punish- . ment for offences is normally the responsibility of the State as guardian of law and order. Thus, section 417, . Cr.P.C. before amendment by Act 36 of 1955 empowered only the State Government to direct the Public Prosecutor to present an appeal from an order of . In 1955, however, this section was amended and acquittal. it was provided, inter alia, that where an order of acquittal is passed in a case instituted upon c.omplaint the. complainant may present an appeal pro vided that the High Court on his application grants him special leaYe to do so. Even in case when the complainant has a right to present an appeal against acquittal, his failure in securing special leave would under s. 417 ( 5) bar the State Government also from appealing. This re flects the Parliament's anxiety not to expose the orders of acquittal to plurality of appeals by preserving to the State as guardian of law and order, a distinct right of appeal wholly unaffected by result of the complainant's right to appeal. Now adverting to the power of revision conferred on a High Court by s. 439 read withs. 435, Cr. P .C. it is an extraordinary discre tionary power vested in the superior court to be exercised in aid H (!) [1956] 2 S.C.R. 94. 134 SUPREME COURT REPORTS [ 1974 j I s.C.Jt. of justice : in other words, to ~et right grave injusti~e. . Th_e High Court has been invested with this power to see that JUS!ice ts done in accordance \\ith the recognised rules of criminal jurisprudence and that the subordinate courts do not exceed their jurisdiction or abuse the power conferred on them by Jaw. As a general rule, this power, in spite of the wide Iangua~e of ss. 435 ~d 439, Cr. ~. C: does not contemplate interference with the conclus1ons of fact m the absence justice. This po~r is cer of serious legal infirmity and failu.re of tainly not intended to be so exerc1Sed as to make one portion of the Code of Criminal Procedure conflict with another, as would seem to be the case when in the garb of exercising revisional power, the High Court in effect exercises the power of appeal in face of statutory pro hibition. The unrestricted right of appeal from acquittal is specifically con ferred only on the State and a private complainant is given this right only when the criminal pros~cution was institu~ed on his co~plaint and then also subject to special leave by the High Court. It 1s fur ther provided in s. 439(5), Cr. P. C. that where no appeal brought in a case i11 which an appeal is provided, l)O proceeamgs by way of revision would be entertained at the instance of the party who could have appealed. The State Government, therefore, having failed to appeal, cannot apply for revision of an order of acquittal. Again 0n revision, the High Court is expressly prohibited from converting an acquittal into a conviction. Considering the problem facing the Court in this case in the background of this scheme, the High Court when approached by a private party for exercising its power of re· vision from an order of acquittal, should appropriately refrain from interfering except when there is a glaring legal defect of a serious It is not ex nature which has resulted in grave failure of justice. pected to act under ss. 435 /439, Cr. P .C. as if it is a hearing on appeal in spite of the wide language under s. 435 which empowers it to satisfy itself as to the correctness, legality or propriety of a finding, sentence or order and as to the regularity of any proce<ding and also in spite of the fact that under s. 439 it can exer,·ise inter alia the power conferred on a court of appeal under s. 4'.L, Cr.P.C. The power being discretionary, it has to be exercised judiciousiy, and not arbitrarily.· Judicial discretion, as has often been said, means a dis cretion which is informed by tradition, methodised by analogy and In hnar Chand Aggarwal v. Shanti Bose(I), disciplined by system. this Court said that normally the jurisdiction of the High Court under s. 439, Cr.P.C. is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on point of law and there has consequently been flagrant miscarriage In the background of the position just stated a private of justice. complai1_1ant ca~ ?nly claim a right, in common with all aggrieved par!Jes m a cnmmal proceedings, to invoke the revisional jurisdiction of the High Court for redress against miscarriage of justice arising from an err.one~ms ord~r of acquittal. The High Court's power in such cases 1s c1rcumscnbed by the provisions of ss. 417 and 439, Cr.P.C. and also by the fundamental principles of our criminal juris- (J) A.I.R. 1973 S.C. 799. B c D E F G H A B c • 1 j . D F G H '? • AKALU AHIR v. RAMDEO (Dua, !.) 135 Ii is only in glaring cases of injustice resulting from some pru<l.:nce. violation of fundamental principles of law by the trial court in the course of trial, that the High Court is empowered to set nside the order of acquittal and direct the re-trial of the acquitted accused · persons. From the very nature of this power, it should l::c exercised in exceptional cases and With great care and caution. Trials not to be lightly set aside whom such orders expose the accused persons to a fresh trial· with all its consequential harassment. This matter is not res integra and has indeed been dealt with ·by this Court at In K, C. Reddy (supra), the four cases noticed by the High Court. this Court examined two of its earlier decisions in D. Stenbens (supra) and Jogendranath !ha (supra) and after quoting certain passages from those decisions observed as follows : - "These. two· cases clearly lay down the limits of the High Court's jurisdiction to interfere- with an order of acquit tal in revision; in particular, Jogendranath Jha's cas~ stresses that it is not open to a High Court to convert a finding of acquittal into _one of conviction in view_ of the pfovisions of s. 439(4) and that the High Court cannot do this even in directly by ordering re-trial. What had happened in that case was that the High Court reversed pure findings of facts based on the trial court's appreciation of evidence but form ally complied with sub-s. ( 4) by directing only a re-trial of the appellants without convicting them, and warned that the court retrying the case should not be influenced by any expression of opinion contained in !11e judgment of the High In that connection this Court observed that there Court. could be littl? doubt that the dice was loaded against the appellants of that case and it might prove diffi•ult for any subordinate judicial officer dealing with the case to put aside .. altogether the strong views expressed in _the judgment as to the credibility of the prosecution witnesses and the cir- cumstances of the case in- general." . This Court then proceeded to observe that the High Court is certainly entitled in revision to set aside the order of acquittal even at the instance of"private parties, though the State may not have thought fit to appeal, but it was emphasised that this jurisdiction ,;hould be exer cised only in exceptional cases when "there is some glarinJ~ defect in the procedure or there is a manifest error on a pqint of law and consequently there has been a flagrant miscarriage of justice." In face of prohibition in s. 439(4) Cr.P.C. for the High Court to con· vert a finding of acquittal into one of conviction, it makes all the more incumbent on the "High Court to see that it does not convert the find ing of acquittal into one of conviction by the indirect method of ordering re-trial. No doubt, in the opinion of this Court, ·no criteria • for determining such exceptional cases which would cover all contin gencies for· attracting the High Court's power of ord~ring re·trial can be laid down. This Court, however, by way of illustration, indicated 136 SUPREME COURT REPORTS [ 1974 j 1 $.C.R. the following categories of cases which would justify the High Court in interfering with a finding of acquittal in revision : - (i) Where the trial court has no jurisdiction to try the case, but has still acquitted the accused; (ii) Where the trial court has wrongly shut out evidence which the prosecution wished to. produce; (iii) Where the appellate court has wrongly held the evi dence which was admitted by the trial court to be inadmissible; (iv) Where the ·material evidence has been ever-looked either by the trial court or by the appellate court; and ( v) Where the acquittal is based on a compounding of the offence which is invalid under the law. In Mohendra Prat~ Singh These categories were however, merely illustrative and it was clari fied that other ca'l!!S of similar nature can also be properly held to be of exceptional nature where the. High Court can justifiably inter fere with the order of acquittal. (supra) the position was again reviewed and the rule laid down in the three In that case the reading of the judgment of earlier cases reaffirmed. the High Court. made it plain that it had re-weighed the evidence from its own point of view and reached inferences contrary to those of the Sessions Jud_ge on almost every point. This Court pointed out that it was not the duty of the High Court to do so while dealing with an acql!ittal on revision, when the Government had not chosen "In other words" said this Court, "the to file an appeal against it. learned Judge· in the High Court has not attended to the rules laid down by this Court and has acted in breach of them" In the present case also we feel that the High Court has reweighed the evidence from its own point of view and though at the outset it noticed the correct legal position arid expressly acknowledged the limits within which it was called upon to decide whether or not to interfere with the order of acquittal, in actual practice, it does not seem to have attended to the rules laid down by this Court in the in D. Stenben's case four decisions noticed by it. As observed (supra), the revisional jurisdiction under s. 439, Cr.P.C. is not to be lightly exercised when invoked by a private party against an order of acquittal against which the Governmeet has a right of appeal under s. 417. This Jurisdiction is not ordinarily invoked or used merely because the lower court has taken a wrong view of the law or mis- appreciated the logendranath lha's case (supra), when s. 439( 4) specifically excludes the power to "convert a finding of acquittal into one of conviction" the High Court cannot, when dealing with a revision petition by ~ private party against an order of acquittal, in the absence of any error on a point of law, i:.e-appraise the evidence and reverse find_ings of fact .on which the ac9uittal was based ~Y resorting device of s!oppmg ~ort of findmg the accused gmlty and passing sen t~nce on him. This would be a suuterfuge impermissible in our judi cial process. evidence on record. Again, as pointed out A B c D E F G H AKALU AHIR v. RAMDEO (Dua,!.) 137 A B c D No doubt, the appraisal of evidence by the trial Judge [r. the case in hand is not perfect or free from flaw and a court of appeal may well have felt jnstified in disagreeing with its conclusion, bnt from this it does not follow that on revision by a private complainant, the High Court is entitled to re-appraise (he evidence for itself as It is if it is acting as a court of appeal and then order a re-trial. unfortunate that a serious offence inspired by jealousy in the matter of election to the office of village Mukhia, ~hould go unpunished. But that can scarcely he a valid ground for ignoring or for not strictly following the law as enunciated by this Conrt. rivalry and There is also another aspect of the mauer. The High Court has evaluated the evidence on the existing record. On re-trial the trial court will have to consider the evidence led at the re-trial and arrive at its conclusion on that record. The expression of opinion on the present evidence with respect to the commission of the alleged offence would not be binding and would, therefore, hardly be relevant. But it may nevertheless leave an unconscious impression on the mind of the court holding the fresh trial. This aspect also seems to lend some support to the view that normally re-trial should not be ordered un less there is some infirmity rendering the trial defective. In view of the foregoing discussions, in our opinion, the High Court had committed, a serious error in directing re-trial on the basis of its re-assessment af the oral evidence on the record, while exer cising its power of revision at the instance of a private complainant. We are, therefore, constrained to ailow this appeal, quash the im• pugned order of the High Court and restore that of the trial conrt. V.P.S. Appeal allowed.