The High Court · 2011

am also firmly of the opinion that what has been laid down by the Supreme Court of India in relation to appeal against the acquittal applies mutatis mutandis to revisions against the acquittals and therefore, unless the order of acquittal is palpably wrong, the findings of not guilty are perverse, and also the reasoning for reaching that conclusion are unsustainable in law, no interference by this Court against the acquittal is possible in revision against acquittal. Hence, this revision fails and is dismissed.”

2. िव(cid:467)नण(cid:91)य अकालू अह(cid:547)र एवं अ(cid:219)य बनाम रामदेव राम ए. आई. आर. 1973 एस.सी. 2145 के पैरा सं(cid:201)या-8 म(cid:581) वे क(cid:467)तपय ि(cid:232)थ(cid:467)तयां उि(cid:227)ल(cid:872)खत क(cid:551) गयी ह(cid:583) िजनके िवधमान होने पर दोषमु(cid:875)(cid:416) के (cid:467)नण(cid:91)य के िव(cid:510)(cid:424) (cid:292)(cid:232)तुत (cid:467)नगरानी म(cid:581) उ(cid:205)च (cid:219)यायालय (cid:430)ारा ह(cid:232)त(cid:162)ेप (cid:873)कया जाना (cid:219)यायो(cid:876)चत हो सकता है। (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 evidence which was admitted by the trial court to be inadmissible; (iv) Where the material evidence has been over- looked only (either) by the trial court or by the appellate court; and (v) Where the acquittal is based on the compounding of the offence which is invalid -16- under the law.

3.िव(cid:467)नण(cid:91)य जोहर एवं अ(cid:219)य बनाम मंगल(cid:292)साद एवं अ(cid:219)य ए. आई. आर. 2008 एस.सी. 1165 म(cid:581) अपने (cid:467)नण(cid:91)य के पैरा सं(cid:201)या- 11,12 एवं 19 म(cid:581) (cid:467)न(cid:224)न (cid:292)कार (cid:292)(cid:467)तपा(cid:465)दत (cid:873)कया गया है

11.In D. Stephens vs. Nosibolla : [1951] 1 SCR 284, this Court opined : “10. The revisional jurisdiction conferred on the High Court under section 439 of the Code of Criminal Procedure is not to be lightly exercised when it is invoked by a private complainant against an order of acquittal, against which the Government has a right of appeal under section

417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely because the lower court has taken a wrong view of the law or misappreciated the evidence on record.”

12.The same principle was reiterated in Logendra Nath Jha and others vs. Polailal Biswas [1951 SCR 676] stating: “............Though sub-section (1) of section 439 authorises the High Court to exercise, in its discretion, any of the powers conferred on a court of appeal by section 423, sub-section (4) specifically excludes the power to “convert a finding of acquittal into one of conviction.” This does not mean that in dealing with a revision petition by a private party against an order of -17- acquittal the High Court could in the absence of any error on a point of law re-appraise the evidence and reverse the findings of facts on which the acquittal was based, provided only it stopped short of finding the accused guilty and passing sentence on him. By merely characterizing the judgment of the trial court as “perverse” and “lacking in perspective”, the High Court cannot reverse pure findings of fact based on the trial Court's appreciation of the evidence in the case. That is what the learned Judge in the court below has done, but could not, in our opinion, properly do on an application in revision filed by a private party against acquittal..........”

19. We may notice a few of the decisions of this Court which are binding on us. In K. Chinnaswamy Reddy vs. State of Andhra Pradesh : [1963] 3 SCR 412, this Court observed :- “It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub-section (4) of s. 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of -18- ordering retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised.” In Mahendra Pratap Singh vs. Sarju Singh and Anr. [1968] 2 SCR 287 this Court stated the law thus :- “8. The practice on the subject has been stated by this Court on more than one occasion. In D. Stephens v. Nosibolla [[1951] S.C.R. 284], only two grounds were mentioned by this Court as entitling the High Court to set aside an acquittal in a revision and to order a retrial. They are that there must exist a manifest illegality in the judgment of the Court of Session ordering the acquittal or there must be a gross miscarriage of justice. In explaining these two propositions, this Court further states that the High Court is not entitled to interfere even if a wrong view of law is taken by the Court of Session or if even there is misappreciation of evidence. Again, Logendranath Jha and others v. Shri Polailal Biswas [[1951] S.C.R. 676], this Court points out that the High Court is entitled in revision to set aside an acquittal if there is an error on a point of law or no appraisal of the evidence at all. This Court observes that it is not sufficient to say that the judgment under revision is "perverse" or "lacking in true correct perspective". It is pointed out further that by ordering a retrial, the dice is loaded against the accused, because however much the High Court may caution the Subordinate Court, it is always difficult to re-weigh the -19- evidence ignoring the opinion of the High Court. Again in K. Chinnaswamy Reddy v. State of Andhra Pradesh, it is pointed out that an interference in revision with an order of acquittal can only take place if there is a glaring defect of procedure such as that the Court had no jurisdiction to try the case or the Court had shut out some material evidence which was admissible or attempted to take into account evidence which was not admissible or had overlooked some evidence. Although the list given by this Court is not exhaustive of all the circumstances in which the High Court may interfere with an acquittal in revision it is obvious that the defect in the judgment under revision must be analogous to those actually indicated by this Court.” In Janata Dal vs. HS Chowdhary : (1992) 4 SCC 305, this Court stated that the object of the revisional jurisdiction was to confer power on superior criminal courts to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment. In State of Maharashtra vs. Jagmohan Singh Kuldip Singh Anand : (2004) 7 SCC 659 this Court observed :- “21. In embarking upon the minutest re- examination of the whole evidence at the revisional stage, the learned Judge of the High Court was totally oblivious of the self-restraint that he was required to exercise in a revision under Section 397 Cr. PC. On behalf of the accused, reliance is placed on the decision of this Court to -20- which one of us (Justice Sabharwal) is a party i.e. Ram Briksh Singh v. Ambika Yadav. That was the case in which the High Court interfered in revision because material evidence was overlooked by the courts below.” The judgment of Ram Briksh mentioned above, has since been reported as Ram Briksh Singh vs. Ambika Yadav : (2004) 7 SCC 665 wherein it has been observed :- “12. For the aforesaid reasons, we are unable to accept the contention that the High Court has reappreciated the evidence. The High Court has only demonstrated as to how the material evidence has been overlooked leading to manifest illegality resulting in gross miscarriage of justice.” It was, therefore, relevant in the fact-situation obtaining therein. Yet again in Satyajit Banerjee vs. State of W.B. : (2005) 1 SCC 115 this Court has, while exercising its jurisdiction under Section 142 of the Constitution of India, expressed a note of caution stating :- “22. The cases cited by the learned counsel show the settled legal position that the revisional jurisdiction, at the instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice. “

14. माननीय उ(cid:205)चतम (cid:219)यायालय (cid:430)ारा (cid:292)(cid:467)तपा(cid:465)दत उ(cid:416) िव(cid:876)ध तथा िव(cid:430)ान ् अ(cid:876)धव(cid:416)ा (cid:292)ाथ(cid:568) क(cid:551) ओर से (cid:292)(cid:232)तुत अ(cid:219)य िव(cid:467)नण(cid:91)य(cid:585) म(cid:581) (cid:467)नधा(cid:91)(cid:464)रत क(cid:551) िव(cid:876)ध के प(cid:464)र(cid:292)े(cid:234)य म(cid:581) य(cid:465)द ह(cid:232)तगत मामले म(cid:581) -21- आ(cid:162)ेिपत (cid:467)नण(cid:91)य का दोन(cid:585) प(cid:162)(cid:585) क(cid:551) ओर से (cid:292)(cid:232)तुत तक(cid:607) के (cid:292)काश म(cid:581) अवलोकन (cid:873)कया जाये तो (cid:232)प(cid:436) (cid:510)प से यह(cid:547) (cid:467)न(cid:231)कष(cid:91) सम(cid:162) आता है (cid:873)क िव(cid:430)ान ् अधीन(cid:232)थ (cid:219)यायालय का आ(cid:162)ेिपत (cid:467)नण(cid:91)य (cid:465)दनांक 5.1.2000 ह(cid:232)त(cid:162)ेप यो(cid:202)य नह(cid:547)ं है। आ(cid:162)ेिपत आदेश म(cid:581) कोई भी ऐसी अवैधता या सारभूत (cid:287)ु(cid:465)ट नह(cid:547)ं है (cid:873)क िजसके आधार पर (cid:467)नगरानी के अ(cid:219)तग(cid:91)त (cid:162)े(cid:287)ा(cid:876)धकार का (cid:292)योग करते हुए इस आदेश को अपा(cid:232)त (cid:873)कया जाये या इसम(cid:581) ह(cid:232)त(cid:162)ेप (cid:873)कया जाये। फल(cid:232)व(cid:510)प (cid:292)ाथ(cid:568) (cid:430)ारा (cid:292)(cid:232)तुत यह (cid:467)नगरानी या(cid:876)चका अ(cid:232)वीकृ त क(cid:551) जाती है। ((cid:219) या0 एस एस कोठार(cid:547) ) “all corrections made in the judgment/order have been incorporated in the judgment/order being e-mailed.” अ(cid:467)नलशमा(cid:91) /PS