R.Madesh v. The State, rep.by Inspector of Police, Kolatur Police Station, Kolathur, Salem District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:29.7.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.No.504 of 2007andM.P.No.1 of 2007R.Madesh... Petitioner vs.1.The State, rep.by Inspector of Police, Kolatur Police Station, Kolathur, Salem District.2.Balappan3.Govindan4.Kunjan5.Allimuthu6.Balu7.Karnan8.Pulendran9.Mathu10.Ranganathan11.Jayapaul12.Pakkiyaraj13.Govindan14.Madesh... Respondents Petition filed under Section 397 r/w 401 of Cr.P.C. againstthe judgment dated 24.3.2006 passed by the Judicial MagistrateNo.1, Mettur, in C.C.No.179 of 2003.For Petitioner : Mr.P.ManiFor Respondents : Mr.R.Muniyapparaj,G.A. for R1 Mr.M.R.Jothimanian for R2 to R4 ORDER Challenging and impugning the judgment dated 24.3.2006passed by the Judicial Magistrate No.1, Mettur, in C.C.No.179 of2003, this criminal revision case is focussed. https://hcservices.ecourts.gov.in/hcservices/

2. Avoiding digressive discussion, pithily and precisely, Iwould like to portray the facts as under:(a) The police laid the police report in terms of Section 173of Cr.P.C. as against respondents 2 to 14 herein for the offenceunder Sections 447, 427, 379 IPC on the ground that on 27.2.2003,at about 9.45 p.m.(night), near Kaveripuramvinayagapuram, theaccused persons constituted an unlawful assembly, armed with deadlyweapons, such as crowbar, axe etc., and trespassed into the P.W.1'sprivate pathway and cut and removed his gates worth Rs.1000/- andtook them away. Inasmuch as the accused pleaded not guilty, thetrial was conducted.(b) During trial, on the prosecution side P.Ws.1to 6 wereexamined and Exs.P1 to P5 were marked. On the accuseds' side nooral evidence was adduced, however, Exs.R1 to R3 were marked.(c) Ultimately, the trial Court acquitted the accused of theoffence with which they were charged.3. Animadverting upon the said acquittal, this revision hasbeen filed on various grounds, the pith and marrow of them wouldrun thus:-The Court below failed to take into consideration the evidenceof the witnesses in the proper perspective. P.Ws.1 to 6 and Exs.P1to P5 are more than enough to drive home the guilt of the accused,but the Magistrate, without applying the law properly, simplypicked holes in the case of the prosecution and acquitted theaccused. 4. Heard both sides. The learned Government Advocate wouldsubmit that the State has not preferred any appeal as against thejudgment of acquittal. 5. The point for consideration is as to whether there is anyperversity or non-application of law on the part of the Magistratein acquitting the accused.6. The learned counsel for the respondents/accused by invitingthe attention of this Court to the fact that the very path way,which the de-facto complainant claims to be his own, is onebelonging to the villagers as such and except the said passage,there is no passage/road for the villagers to go to the othervillage and also to the respective houses and as such, thecomplainant was not right in contending that it was his own pathway and that he had put up the gates. P.W.6-the photographer, whohad taken photographs of the alleged scene of crime, clearly andcategorically, in his deposition stated that there is no trace ofany gates having been in existence there. The learned counsel forthe respondents/accused by inviting the attention of this Court tothe negatives and the corresponding photos of the alleged scene ofoccurrence would develop his argument that there is nothing in the https://hcservices.ecourts.gov.in/hcservices/ photo that there were any gates, which were allegedly thieved awayby the respondents/accused.7. A plain reading of the judgment of the trial Court wouldindicate and exemplify that P.Ws.2 and 3 are the brothers of P.W.1and except their interested testimony, there is no other evidence,even though there were other houses situated nearby the allegedscene of crime. The alleged stolen gates were not recovered by thepolice and for that matter, even the weapons of offence were alsonot recovered. 8. Indubitably and uncontrovertibly, unassailably andunarguably even before the emergence of this criminal case, therewas a civil case instituted at the instance of the de-factocomplainant himself, claiming exclusive right over the pathwayconcerned and that there was no interim injunction granted in thatcase. Accordingly, the learned counsel for the respondents/accusedargued that the revision petitioner, purely for the purpose ofharassing and compelling the accused to agree for his unjustifiableclaim, has chosen to dish out the false plea and foist the case. 9. At this juncture, my mind is reminiscent and redolent ofthe following decisions of the Honourable Apex Court(I) AIR 1962 SC 1788 [K.Chinnaswamy Reddy v. State of AndhraPradesh], an excerpt from it would run thus:7. It is true that it is open to a High Court inrevision to set aside an order of acquittal even at theinstance of private parties, though the State may nothave thought fit to appeal; but this jurisdiction shouldin our opinion be exercised by the High Court only inexceptional cases, when there is some glaring defect inthe procedure or there is a manifest error on a point oflaw and consequently there has been a flagrantmiscarriage of justice. Sub-section (4) of Section 439forbids a High Court from converting a finding ofacquittal into one of conviction and that makes it allthe more incumbent on the High Court to see that it doesnot convert the finding of acquittal into one ofconviction by the indirect method of ordering retrial,when it cannot itself directly convert a finding ofacquittal into a finding of conviction. This placeslimitations on the power of the High Court to set asidea finding of acquittal in revision and it is only inexceptional cases that this power should be exercised.It is not possible to lay down the criteria fordetermining such exceptional cases which would cover allcontingencies. We may however indicate some cases ofthis kind, which would in our opinion justify the HighCourt in interfering with a finding of acquittal inrevision. These cases may be: where the trial court hasno jurisdiction to try the case but has still acquitted https://hcservices.ecourts.gov.in/hcservices/ the accused, or where the trial court has wrongly shutout evidence which the prosecution wished to produce, orwhere the appeal court has wrongly held evidence whichwas admitted by the trial court to be inadmissible, orwhere material evidence has been overlooked either bythe trial court or by the appeal court, or where theacquittal is based on a compounding of the offence,which is invalid under the law. These and other cases ofsimilar nature can properly be held to be cases ofexceptional nature, where the High Court can justifiablyinterfere with an order of acquittal; and in such a caseit is obvious that it cannot be said that the High Courtwas doing indirectly what it could not do directly inview of the provisions of Section 439(4). We havetherefore to see whether the order of the High Courtsetting aside the order of acquittal in this case can beupheld on these principles.(II) AIR 1968 SC 707 [Mahendra Pratap Singh vs. Sarju Singhand another], an excerpt from it would run thus:7. In revision, the learned Judge in the High Courtwent into the evidence very minutely. He questioned everysingle finding of the learned Sessions Judge and gave hisown interpretation of the evidence and the inferences tobe drawn from it. He discounted the theory that theweapon of attack was a revolver and suggested that itmight have been a shot gun or country made pistol whichthe villagers in the position of Kuldip and Sarju couldnot distinguish from a revolver. He then took up eachsingle circumstance on which the learned Sessions Judgehad found some doubt and interpreting the evidence denovo held, contrary to the opinion of the Sessions Judgethat they were acceptable. All the time he appeared togive the benefit of the doubt to the prosecution. Theonly error of law which the learned Judge found in theSessions Judge’s judgment was a remark by the SessionsJudge that the defence witnesses who were examined by thepolice before they were brought as defence witnessesought to have been cross examined with reference to theirprevious statements recorded by the police, whichobviously is against the provisions of the Code. Exceptfor this error, no defect of procedure or of law wasdiscovered by the learned Judge of the High Court in hisappraisal of the judgment of the Sessions Judge. Asstated already by us, he seems to have gone into thematter as if an appeal against acquittal was before himmaking no distinction between the appellate and therevisional powers exercisable by the High Court inmatters of acquittal except to the extent that instead ofconvicting the appellant he only ordered his retrial. Inour opinion the learned Judge was clearly in error in https://hcservices.ecourts.gov.in/hcservices/ proceeding as he did in a revision filed by a privateparty against the acquittal reached in the Court ofSession.8. The practice on the subject has been stated bythis Court on more than one occasion. In D. Stephens v.Nosibolla only two grounds are mentioned by this Court asentitling the High Court to set aside an acquittal in arevision and to order a retrial. They are that there mustexist a manifest illegality in the judgment of the Courtof Session ordering the acquittal or there must be agross miscarriage of justice. In explaining these twopropositions, this Court further states that the HighCourt is not entitled to interfere even if a wrong viewof law is taken by the Court of Session or if even thereis misapprehensions of evidence. Again, in LogendranathJha v. Shri Polailal Biswas, this Court points out thatthe High Court is entitled in revision to set aside anacquittal if there is an error on a point of law or noappraisal of the evidence at all. This Court observesthat it is not sufficient to say that the judgment underrevision is “perverse” or “lacking in true correctperspective”. It is pointed out further that by orderinga retrial, the dice is loaded against the accused,because however much the High Court may caution theSubordinate Court, it is always difficult to reweigh theevidence ignoring the opinion of the High Court. Again inK. Chinnaswamy Reddy v. State of Andhra Pradesh, it ispointed out that an interference in revision with anorder of acquittal can only take place if there is aglaring defect of procedure such as that the court had nojurisdiction to try the case or the court had shut outsome material evidence which was admissible or attemptedto take into account evidence which was not admissible orhad overlooked some evidence. Although the list given bythis Court is not exhaustive of all the circumstances inwhich the High Court may interfere with an acquittal inrevision it is obvious that the defect in the judgmentunder revision must be analogous to those actuallyindicated by this Court. As stated, not one of thesepoints which have been laid down by this Court wascovered in the present case. In fact on reading thejudgment of the High Court it is apparent to us that thelearned Judge has reweighed the evidence from his ownpoint of view and reached inferences contrary to those ofthe Sessions Judge on almost every point. This we do notconceive to be his duty in dealing in revision with anacquittal when Government has not chosen to file anappeal against it. In other words, the learned Judge inthe High Court has not attended to the rules laid down bythis Court and has acted in breach of them. https://hcservices.ecourts.gov.in/hcservices/ (III) 1973 SCC (cri) 903 [Akalu Ahir and others v. RamdeoRam], an excerpt from it would run thus:This Court then proceeded to observe that the HighCourt is certainly entitled in revision to set aside theorder of acquittal even at the instance of privateparties, though the State may not have thought fit toappeal, but it was emphasised that this jurisdictionshould be exercised only in exceptional cases when“there is some glaring defect in the procedure or thereis a manifest error on a point of law and consequentlythere has been a flagrant miscarriage of justice”. Inface of prohibition in Section 439(4) CrPC for the HighCourt to convert a finding of acquittal into one of’conviction, it makes all the more incumbent on the HighCourt to see that it does not convert the finding ofacquittal into one of conviction by the indirect methodof ordering re-trial. No doubt, in the opinion of thisCourt, as criteria for determining such exceptionalcases which would cover all contingencies for attractingthe High Court’s power of ordering re-trial can be laiddown. This Court, however, by way of illustration,indicated the following categories of cases which wouldjustify the High Court in interfering with a finding ofacquittal in revision:(i) Where the trial court has no jurisdiction to try thecase, but has still acquitted the accused;(ii) Where the trial court has wrongly shut out evidencewhich the prosecution wished to produce;(iii) Where the appellate court has wrongly held theevidence which was admitted by the trial court to beinadmissible;(iv) Where the material evidence has been overlookedonly (either) by the trial court or by the appellatecourt; and(v) Where the acquittal is based on the compounding ofthe offence which is invalid under the law.These categories were, however, merely illustrative andit was clarified that other cases of similar nature canalso be properly held to be of exceptional nature wherethe High Court can justifiably interfere with the orderof acquittal. In Mahendra Pratap Singh (supra), theposition was again reviewed and the rule laid down inthe three earlier cases reaffirmed. In that case thereading of the judgment of the High Court made it plainthat it had re-weighed the evidence from its own pointof view and reached inferences contrary to those of theSessions Judge on almost every point. This Court pointedout that it was not the duty of the High Court to do sowhile dealing with an acquittal of revision, when the https://hcservices.ecourts.gov.in/hcservices/ Government had not chosen to file an appeal against it.“In other words” said this Court, “the learned Judge inthe High Court has not attended to the rules laid downby this Court and has acted in breach of them”.(IV) 1975 SCC (cri) 543 [Pakalapati Narayana Gajapathi Rajuand others v. Bonapalli Peda Appadu and another], an excerpt fromit would run thus:"3. It is clear from these decisions that therevisional jurisdiction cannot be invoked merelybecause the lower court has not appreciated theevidence properly. The High Court has in itsjudgment referred to the decisions of this Court butin applying those decisions it has transgressed thelimits of its revisional powers."(V) AIR 1997 SC 2485 [Kaptan Singh and others v. State of M.P.and another], an excerpt from it would run thus:"5. ......The trial Court is then required tobase its conclusion solely on the evidence adducedduring the trial; and it cannot rely on theinvestigation or the result thereof, since this is anelementary principle of criminal law, we need notdilate on this point any further."10. In the wake of the above judgments, if the records areanalysed, including the judgment of the lower Court, I could see noperversity or non-application of mind in acquitting the accused.The leaned Magistrate passed the judgment purely on appreciation offactual evidence, warranting no interference by this Court. If atall there is any non-application of law in interpreting theevidence, then the question of interfering with such a decisionwould arise. But on the other hand, the Magistrate thoroughlylooked into the facts and disbelieved the evidence of P.Ws.1 to 3,warranting no interference by this Court. Hence, I could see nomerit in the revision. Accordingly, the criminal revision case isdismissed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarMsk https://hcservices.ecourts.gov.in/hcservices/ To1. The Judicial Magistrate No.1, Mettur.2. The Inspector of Police, Kolathur Police Station, Salem.3. The Public Prosecutor, High Court, Madras.1 cc To Mr.M.R.Jothimanian, Advocate, SR.32733.Crl.R.C.No.504 of 2007 AKR(CO)RVL 11.08.2009