The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK CRLLP No.53 of 2010 In the matter of an application under Section 378(1) and (3) of Code of Criminal Procedure, 1973. --------------------- State of Orissa …..… Petitioner Md. Ismile …..… Opp.party -Versus- For Petitioner : Mr. D. Nayak, AGA For Opp.party : Mr. D.K. Mohapatra, Adv. ------------------ P R E S E N T: THE HONOURABLE SHRI JUSTICE M.S. SAHOO ------------------------------------------------------------------------------------------ Date of hearing & judgment: 20.11.2023 ------------------------------------------------------------------------------------------ M.S.SAHOO, J. The CRLLP has been filed under Section 378(1) (3) of the Cr.P.C. seeking leave to file appeal against the order dated 28.07.2008 passed by the learned District Judge- cum-Special Judge, Sundargarh in G.R. Case No.715 of
Legal Reasoning
1999 arising out of Tangarpalli P.S.Case No.53 of 1999. By the said judgment the learned court has acquitted the opposite party under Section 235 (1) of Cr.P.C. after he stood trial being charged for committing offence under Section 20(b) of Narcotic Drugs and Psychotropic Substances Act. // 2 // 2. Learned Additional Government Advocate appearing for the State submits that it is a fit case where leave should be granted as the learned trial court has not taken note of the evidence on record and the judgment suffers from perversity due to non-consideration of the relevant materials on record. 3. Having heard the learned Additional Government Advocate for the State and the learned counsel for the opposite party, this Court has the occasion to go through the judgment as annexed to the petition. It is fairly stated by the learned Additional Government Advocate that at this stage, no further evidence can be considered or material cannot be taken into account while considering the merits of the judgment rendered by the learned trial court. 4. Perusal of the judgment indicates that the learned court has taken note of the depositions of P.W.9, who has stated in both the F.I.R. and in his deposition that after reliable information was received by him he entered the said fact in station diary entry and intimated the matter to the Superintendent of Police, Rourkela. No evidence is forthcoming as to when and under what dispatch number the copy of information so recorded was sent to the immediate official superior of P.W.9. Such intimation is also not shown to have been seized. 5. The learned trial court has given a finding that the duty of the I.O. to forward copy of the information Page 2 of 15 // 3 // recorded regarding the seizure of the contraband/ information regarding contraband, to his immediate superior, i.e., the Superintendent of Police has not been proved by evidence in the trial. Therefore, a finding has been returned that Section 42(2) of the NDPS Act and Section 50 of the NDPS Act regarding recovery, seizure and deposit of the contraband articles have not been followed. 6. A further finding has been given by the learned trial court that Section 50 of the NDPS Act mandating a particular procedure regarding recovery, seizure and deposit of the contraband articles have not been followed as per the evidence tendered by the prosecution. 7. In Anwar Ali v. State of H.P., (2020) 10 SCC 166 : 2020 SCC On Line SC 776 (at page 179 of SCC), the law on the appeal against acquittal and the scope and ambit of Section 378 CrPC and the scope of interference by the High Court in an appeal against acquittal was considered by the Hon’ble Supreme Court and it has been held:- 14.1. In Babu [Babu v. State of Kerala, (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] , this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 CrPC. In paras 12 to 19, it is observed and held as under: (SCC pp. 196-99) “12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case (Underlined to Supply Emphasis) Page 3 of 15 // 4 // to to take court. failed the appellate record contrary , Shambhoo Missir v. State where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the into trial court had consideration admissible evidence and/or had taken into consideration the evidence brought on law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by (Vide Balak Ram v. State of U.P. [Balak Ram v. State of U.P., (1975) 3 SCC 219 : 1974 SCC (Cri) 837] of Bihar [Shambhoo Missir v. State of Bihar, (1990) 4 SCC 17 : 1990 SCC (Cri) 518] , Shailendra of U.P. [Shailendra Pratap v. State of U.P., (2003) 1 SCC 761 : 2003 SCC (Cri) 432] , Narendra of M.P. [Narendra Singh v. State of M.P., (2004) 10 SCC 699 : 2004 SCC (Cri) 1893] of U.P. [Budh , Budh Singh v. State of U.P., (2006) 9 SCC 731 : , State of (2006) 3 SCC of U.P. v. Ram U.P. v. Ram Veer Singh, (2007) 13 SCC 102 : (2009) 2 SCC (Cri) 363] , S. Rama Krishna v. S. Rami Reddy [S. Rama Krishna v. S. Rami Reddy, (2008) 5 SCC 535 (Cri) 645] , Arulveluv. State [Arulvelu v. State, (2009) 10 SCC 206 : (2010) 1 SCC (Cri) 288] , Perla Somasekhara Reddy v. State of A.P. [Perla Somasekhara Reddy v. State of A.P., (2009) 16 SCC 98 : (2010) 2 SCC (Cri) 176] and Ram Singh v. State of H.P. [Ram Singh v. State of H.P., (2010) 2 SCC 445 : (2010) 1 SCC (Cri) 1496]) (2008) 2 SCC Pratap v. State Singh v. State Singh v. State Singh [State (Cri) 377] Veer : (Underlined to Supply Emphasis) Page 4 of 15 // 5 // 13. In Sheo Swarup v. King Emperor [Sheo Swarup v. King Emperor, 1934 SCC OnLine PC 42 : (1933-34) 61 IA 398 : AIR 1934 PC 227 (2)] , the Privy Council observed as under: (SCC Online PC: IA p. 404) to (2) the credibility of presumption ‘… the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial the Judge as of the witnesses; innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the the advantage of seeing witnesses.’ of LJ 481] followed by Singh v. State Agarwal v. State , M.G. Agarwal v. State law has 14. The aforesaid principle of this Court. consistently been (See Tulsiram Kanu v. State [Tulsiram Kanu v. State, 1951 SCC 92 : AIR 1954 SC 1] , Balbir Punjab [Balbir Singh v. State of Punjab, AIR 1957 SC 216 : 1957 Cri of of Maharashtra [M.G. Maharashtra, AIR 1963 SC 200 : (1963) 1 Cri LJ 235] , Khedu Mohton v. State of Bihar [Khedu Mohton v. State of Bihar, (1970) 2 SCC 450 : 1970 SCC (Cri) 479] , Sambasivan v. State of Kerala [Sambasivan v. State of Kerala, (1998) 5 SCC 412 : 1998 SCC (Cri) 1320] , Bhagwan Singh v. State of M.P. [Bhagwan Singh v. State of M.P., (2002) 4 SCC 85 : 2002 SCC (Cri) 736] and State of Goa v. Sanjay Thakran [State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 : (2007) 2 SCC (Cri) 162] .) (Underlined to Supply Emphasis) Page 5 of 15 // 6 // In Chandrappa v. State of Karnataka 15. [Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325] , this Court reiterated the legal position as under: (SCC p. 432, para 42) ‘(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. such expressions, as, (3) Various “substantial and compelling reasons”, “good “very strong and sufficient grounds”, conclusions”, “distorted circumstances”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. in favour of presumption (4) An appellate court, however, must bear in mind that in case of acquittal, there is the double presumption accused. Firstly, of the innocence is available to him under the fundamental criminal principle jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured the presumption of his his acquittal, innocence is further reinforced, reaffirmed and strengthened by the trial court. of (Underlined to Supply Emphasis) Page 6 of 15 // 7 // If (5) two reasonable conclusions are possible on the basis of the evidence on the appellate court should not record, disturb the finding of acquittal recorded by the trial court.’ the 16. In Ghurey Lal v. State of U.P. [Ghurey Lal v. State of U.P., (2008) 10 SCC 450 : (2009) 1 SCC (Cri) 60], this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind the that presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the the distinct advantage demeanour of the witnesses, and was in a better position the witnesses. trial court's acquittal bolsters the credibility of of watching to evaluate 17. In State of Rajasthan v. Naresh [State of Rajasthan v. Naresh, (2009) 9 SCC 368 : (2009) 3 SCC (Cri) 1069], the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20) ‘20. … An order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused.’ In State of U.P. v. Banne [State of 18. U.P. v. Banne, (2009) 4 SCC 271 : (2009) 2 SCC (Cri) 260] , this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include:(SCC p. 286, para 28) ‘(i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position; (Underlined to Supply Emphasis) Page 7 of 15 // 8 // (ii) The High Court's conclusions are contrary to evidence and documents on record; (iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice; (iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case; (v) This Court must always give proper weight and consideration to the findings of the High Court; (vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal.’ A similar view has been reiterated by this Court in Dhanapal v. State [Dhanapal v. State, (2009) 10 SCC 401 : (2010) 1 SCC (Cri) 336] . the 19. Thus, the law on the issue can be summarised to the effect that in exceptional are cases where compelling there circumstances, and judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.” presumption his of 14.2. When can the findings of fact recorded by a court be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid (Babu decision, which case [Babu v. State of Kerala, (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] , SCC p. 199) reads as under: (Underlined to Supply Emphasis) Page 8 of 15 // 9 // taking (Vide Rajinder Admn. [Rajinder “20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding or by relevant material into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is “against the weight of evidence”, or if the finding so outrageously defies logic as to suffer from the vice of Kumar irrationality. Kindra v. Delhi Kumar Kindra v. Delhi Admn., (1984) 4 SCC 635 : 1985 SCC (L&S) 131] , Excise & Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons [Excise & Taxation Officer-cum- Assessing Authority v. Gopi Nath & Sons, 1992 Supp (2) SCC 312] , Triveni Rubber & Plastics v. CCE [Triveni & Plastics v. CCE, 1994 Supp (3) SCC 665] Prasad [Gaya , Gaya Din v. Hanuman Prasad, (2001) 1 SCC 501] , Aruvelu [Arulvelu v. State, (2009) 10 SCC 206 : (2010) 1 SCC (Cri) 288] and Gamini Bala Koteswara Rao v. State of A.P. [Gamini Bala Koteswara Rao v. State of A.P., (2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372] )” (emphasis supplied) Din v. Hanuman Rubber this Court
Legal Reasoning
It is further observed, after following the decision in Kuldeep Singh v. Commr. of of Police [Kuldeep Singh v. Commr. of Police, (1999) 2 SCC 10 : 1999 SCC (L&S) 429] , that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Underlined to Supply Emphasis) Page 9 of 15 // 10 // Mohan Singh v. State the recent decision of Vijay Mohan 14.3. In Singh [Vijay of Karnataka, (2019) 5 SCC 436 : (2019) 2 SCC (Cri) 586] , this Court again had an occasion to consider the scope of Section 378 CrPC and the interference by [State of Karnataka v. Vijay Mohan Singh, 2013 SCC OnLine Kar 10732] in an appeal against acquittal. This Court considered a catena of decisions of this Court right from 1952 onwards. In para 31, it is observed and held as under: (SCC pp. 447-49) the High Court the “31. An identical question came to be considered before this Court in Umedbhai Jadavbhai [Umedbhai Jadavbhai v. State of Gujarat, (1978) 1 SCC 228 : 1978 SCC (Cri) 108] . In the case before this Court, the High Court interfered with the order of acquittal trial court on learned passed by reappreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under: (SCC p. 233) rightly ‘10. Once entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will the present case where the made Sessions an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case.’ in the appeal was applicable Judge has not be (Underlined to Supply Emphasis) Page 10 of 15 // 11 // In Sambasivan [Sambasivan v. State of 31.1. Kerala, (1998) 5 SCC 412 : 1998 SCC (Cri) 1320] , the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on reappreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court. While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under: (SCC p. 416) to has conformed ‘8. We have perused the judgment under appeal to ascertain whether the High Court the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Doshi Babulal case [Ramesh Doshi v. State of Gujarat, (1996) 9 SCC 225 : 1996 SCC (Cri) 972] viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well-considered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the (Underlined to Supply Emphasis) Page 11 of 15 // 12 // whether and trial court court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence illegal or conclusions was patently it are demonstrably arrived at by unsustainable he judgment of the appellate court is free from those infirmities; if so to hold that the judgment warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard the above discussion, we shall proceed to examine the judgment of the trial court in this case. to In K. Ramakrishnan Unnithan [K. 31.2. Ramakrishnan Unnithan v. State of Kerala, (1999) 3 SCC 309 : 1999 SCC (Cri) 410] , after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. (Underlined to Supply Emphasis) Page 12 of 15 // 13 // in discarding This Court further observed that as the Sessions Judge was not the justified relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge. 31.3. In Atley [Atley v. State of U.P., AIR 1955 SC 807 : 1955 Cri LJ 1653] , in para 5, this Court observed and held as under: (AIR pp. 809- 10) ‘5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 CrPC came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order. It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well-established rule that the presumption of innocence of the accused is the not weakened but strengthened by judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence. (Underlined to Supply Emphasis) Page 13 of 15 // 14 // to in that the riders It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject the innocence with which the presumption of accused person starts trial court the continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal. If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be in this said to have been vitiated. connection the very cases cited at the Bar, namely, Surajpal Singh v. State [Surajpal Singh v. State, 1951 SCC 1207 : AIR 1952 SC 52] ; Wilayat Khan v. State of U.P. [Wilayat Khan v. State of U.P., 1951 SCC 898 : AIR 1953 SC 122] ) In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.’ (See In K. Gopal Reddy [K. Gopal 31.4. Reddy v. State of A.P., (1979) 1 SCC 355 : 1979 SCC (Cri) 305] , this Court has observed that where the trial court allows itself to be besetwith fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule.” (emphasis supplied) 8. Though the learned Additional Government Advocate has strenuously tried to make out a case for grant of leave to appeal, in considered opinion of this Court in view of the discussions above regarding the evidence adduced by the prosecution and by applying the principles laid down Page 14 of 15 // 15 // in Anwar Ali (supra) the present case is not fit for grant of leave to appeal.
Decision
9. The CRLLP stands disposed of accordingly. …………………… M.S.Sahoo, J. Orissa High Court, Cuttack The 20th November, 2023/Gs Signature Not Verified Digitally Signed Signed by: GAGAN BIHARI SAMAL Reason: Authentication Location: ohc Date: 03-Jan-2024 10:32:24 Page 15 of 15