Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8
PETITIONER:
KALU AHIR AND OTHERS
Vs.
RESPONDENT:
RAMDEO RAM
DATE OF JUDGMENT01/05/1973
BENCH:
DUA, I.D.
BENCH:
DUA, I.D.
MATHEW, KUTTYIL KURIEN
CITATION:
1973 AIR 2145 1974 SCR (1) 130
1973 SCC (2) 583
CITATOR INFO :
R 1975 SC1854 (3)
R 1979 SC 663 (9)
R 1986 SC1721 (9)
ACT:
Code of Criminal Procedure (Act 5 of 1898), Ss. 417, 435,
439-High Court’s power of revision in cases of acquittal by
trial court-Scope of.
Weight of evidence-Enmity between parties of complaint and
accused-Effect of.
HEADNOTE:
The trial court, on a consideration of the evidence,
acquitted the appellants of the offences under Ss. 307 and
307/109 I.P.C. The State did not file any appeal against the
order of acquittal but the victim invoked the revisional
jurisdiction of the High Court, under Ss. 435 and 439
Cr.P.C. The High Court allowed ,he revision, set aside the
acquittal and remitted the case for retrial.
Allowing the appeal to this Court,
HELD : An unrestricted right of appeal from acquittal is
specifically conferred only on the State and a private
complainant is given the right of appeal ,only when the
criminal. prosecution was instituted on his complaint and
then also subject to special leave by the High Court. A
private complainant can only claim a right, in common with
all aggrieved parties in a criminal proceeding, to invoke
the revisional jurisdiction of the High Court for redress
against miscarriage of justice arising from an erroneous
order of acquittal; but the High Court’s power in such cases
is circumscribed by the provisions of Ss. 417 and 439,
Cr.P.C. and also by the fundamental principles of criminal
jurisprudence. it is only in glaring cases of injustice
resulting from some violation of fundamental principles of
law by the trial court that the High Court is empowered to
set aside the order of acquittal and direct a retrial of the
acquitted accused. From the very nature of this power it
should be exercised only in exceptional cases and with great
care and caution. Trials are not to be lightly set aside
when-such orders expose the accused persons to a fresh trial
with all its consequential harassment. The power of
revision conferred on the High Court by Ss. 435 and 439
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8
Cr.P.C. is an extraordinary discretionary power vested in
the superior court to be exercised in aid of justice. The
High Court has been invested with this power to see that
justice is done in accordance with the recognised rules of
criminal. jurisprudence and that the subordinate courts do
not exceed their jurisdiction or abuse the power conferred
on them by law. As a general rule, this power, in spite of
the wide language of the sections does not contemplate
interference with conclusions of fact in the absence of
serious legal infirmity and failure of justice. This power
is certainly not intended to be exercised as to one portion
of the Criminal Procedure Code conflict with another as
would 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 prohibition. In
revision, the High Court is expressly prohibited from
converting acquittal into a conviction. it makes it
therefore 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 ordering a retrial.
The High Court when approached by a private party for
exercising its power of revision in the case of an order of
acquittal should therefore refrain from interfering except
when there is a glaring legal defect of a serious nature
which has resulted in grave failure of justice. The High
Court is not expected to act as if it is hearing an 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 proceeding, and also in spite of the fact
that under s. 439 it can exercise inter alia the power
conferred on a court of appeal under s. 423, Cr. P. C. The
power being discretionary, it is to be exercised judicially
and not arbitrarily. Judicial discretion means a discretion
which is informed by analogy and disciplined by
system. [ 133F-G,H; 134A-D, E-H-135A-C]
131
In the present case the High Court has reweighed the
evidence from its own point of view and though it noticed
the correct legal position regarding the limits of its
jurisdiction to interfere with an order of acquittal, it
does not seem to have followed those rules. [136E-F]
D. Stenbens v. Nosibolla, [1951] S.C.R. 284, Jogendranath
Jha v. Polailal Biswas, [1951] S. C.R. 676, K. C. Reddy v.
State of Andhra Pradesh, [1963] 3 S.C.R. 412, Mohendra
Pratap Singh v. Sarju Singh & Another [1968] 2 S.C.R. 287,
U. J. S. Chopra v. State of Bombay, [1956] S.C.R. 94 and
Amar- Chand Aggarwal v. Shanti Bose, 1973 A.I.R. S.C. 799,
followed.
(1) The appraisal of the evidence by the trial judge in the
instant case is not perfect or free from flaw and a court of
appeal may well have felt justified in disagreeing with his
conclusions. But it does not follow that on revision by a
private complainant the High Court is entitled to reappraise
the evidence for itself as if it is acting as a court of
appeal- and then order a retrial. [137A-B]
(2) The expression of opinion by the High Court on the
present evidence with respect to the commission of alleged
offence would not binding and would not be relevant in a
retrial. But it may nevertheless leave an unconscious
impression on the mind of the Court holding the fresh trial.
[137C-D]
(3) Enmity between the complainant’s party and the accused
is usually a double-edged weapon providing motive both- for
the offence as well as for false implication. The
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8
evidence, in such cases, has to be scrutinised with care so
that neither the guilty party escapes on the plea of enmity
nor an innocent person gets wrongly convicted on that basis.
[131G-H]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 40 of
1970.
Appeal by special leave from the judgment and order October
14, 1969 of the Patna High Court in Criminal Revision No.
190 of 1969.
B. P. Singh, for the appellant.
D. Goburdhan, for the respondents.
The Judgment of the Court was delivered by
DUA, J : This is an appeal by special leave. The three
appellants and one Ramehander Kanu were tried in the court
of the 2nd Assistant Sessions Judge, Chopra 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 gun 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 the commission
of the aforesaid offence.
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
groups was of long 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 innocent 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
Ploughman Bhuidhar Chamar as P.W. 10. The trial Judge after
considering the evidence on 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 with
respect to the manner in which the occurrence had taken
place, with the result that in his opinion, the prosecution
had not been able to prove the charges against the accused
persons beyond reasonable doubt.
The State did not file any appeal against the order of
acquittal. Ramdeo Ram, the victim of the gun shots,
however, presented in the High Court in January, 1969 a
revision petition under ss. 435 and 439, Cr.P.C. from the
order acquitting the four accused persons. Prom a note on
the printed application for revision, it appears that the
name of Jagarnath Kanu was expunged from the array of
respondents in the revision : vide, court’s order dated July
3, 1969. The High Court at the outset noticed that the
scope, of interference in revision at the instance of
private parties in cases of acquittal is very limited. In
this connection, it referred to the following four decisions
of this Court :-
(i) D. Stenbens v. Nosibolla(1)
(ii) Jogendranath Jha v. Polailal Biswas(2)
(iii) K. C. Reddy v. State of Andhra Pradesh(3) and
(iv) Mohendra Pratap Singh v. Sarju Singh & another(4)
After quoting from K. C. Reddy (supra), the, categories of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8
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 defect in the judgment
under revision must be analogous to those actually
indicated, the High Court proceeded to consider the case,
professedly keeping those limits in view. It then
criticised the appraisal of the evidence by the trial court
and found fault with several observations made by that court
in such appraisal. The reasons recorded by the trial court
for rejecting the evidence of p.W . 1, Ramdeo Ram and of
his wife Puljharia, P. W. 9., were considered by the High
Court to be "much too infirm". The High Court also felt
that the evidence of Ramdeo Ram had been misread by the
trial court when it observed that his statement to the
police was not in conformity with 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. The
contradictions 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 such contradictions had no
bearing on the manner of the occurrence but could only have
some relevance to the question of the identity 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
(1) [1951] S.C.R. 284. (2) [1951] S.C.R. 676.
(3) [1963] 3 S.C.R, 412. (4) [1968] 2 S.C.R. 287.
133
could not be allowed to stand. Considering this to be an
exceptional case, the High Court allowed the revision and,
setting aside the acquittal, 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 against orders of acquittal at the instance
of private parties It was 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 that 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 injustice 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 of appeal. Section 404, Cr.P.C. expressly
so provides. In U.J.S. Chopra v. State of Bombay(1) while
discussing the historical background 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 file an appeal from acquittal and this was
repeated in s. 417 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 private party had, therefore, no right
of appeal. The aggrieved party could, however, move the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8
authorities concerned to consider the question of presenting
an appeal against acquittals This indicates that punishment
for offences is normally the responsibility of the State as
the guardian of law and order. Thus section 417, Cr.P.C.
before its amendment by Act 36 of 1955 empowered only the
State Government to direct the Public Prosecutor to present
an appeal from an order of acquittal. In 1955, however,
this section. was amended and it was provided, inter alia,
that where an order of acquittal is passed in a case
instituted upon complaint the complainant may present an,
appeal provided that the High Court on his application
grants him special leave 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 reflects 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 the result of the
complainant’s right to appeal.
Now adverting to the power of revision conferred on a High
Court by s. 439 read With s. 435, Cr. P.C. it is an
extraordinary discretionary power vested in the superior
court to be exercised in aid
(1) [1956] 2 S.C.R. 94.
134
of justice : in other words, to set right grave injustices
The High Court has been invested with this power to see that
justice is done in accordance with the recognised rules of
criminal jurisprudence and that the subordinate courts do
not exceed their jurisdiction or abuse the power conferred
on them by law. As a general rule, this power, in spite of
the wide language of ss. 435 and 439, Cr. P.C. does not
contemplate interference with the conclusions’ of fact in
the absence of serious legal infirmity and failure of
justice. This power is certainly not intended to be so
exercised 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 prohibition.
The unrestricted right of appeal from acquittal is
specifically conferred only on the State and a private
complainant is given this right only when the criminal
prosecution was instituted on his complaint and then also
subject to special leave by the High Court. It is further
provided in s. 439(5), Cr. P.C. that where no appeal is
brought in a case in which an appeal is provided, no
proceedings 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 or revision,
the High Court is expressly prohibited from converting an
acquittal into a conviction. Considering the problem facin
g 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 revision from an order of
acquittal, should appropriately refrain from interfering
except when there is a glaring legal defect of a serious
nature which has resulted in grave failure, of justice. it
is not expected 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 proceeding and also.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8
in spite of the fact that under s. 439 it can exercise inter
alia the power conferred on a court of appeal under s. 423,
Cr.P.C. The power being discretionary, it has to be
exercised judiciously, and not arbitrarily. Judicial
discretion, as has often been said, means a discretion which
is informed by tradition, methodised by analogy and
disciplined by system. In Amar Chand Aggarwal v. Shanti
Bose(1), this Court said that normally the jurisdiction of
the High Court under s. 439, Cr.P.C. is to be exercised any
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 of justice.
In the background of the position just stated a private
complainant can only claim a right in common with all
aggrieved parties in a criminal proceedings, to invoke, the
revisional jurisdiction of the High Court for redress
against miscarriage of justice arising from an erroneous
order of acquittal.. The High Court’s power in such cases is
circumscribed by the provisions of ss. 417 and 439, C-r-P.C.
and also by the fundamental principles of our criminal
juris-
(1) A.I.R. 1973 S.C. 799.
135
prudence is only in glaring cases of injustice resulting
some violation of fundamental principles of law by the trial
court in the course of trial, that the High Court is
empowered to set aside the order of acquittal and direct the
re-trial of the acquitted accused persons. From the very
nature of this power, it should be exercised in exceptional
cases and with great care and caution. Trials are 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 least in the four cases
noticed by the High Court. In K. C. Reddy (supra), this
Court examined two of its earlier decisions in D. Stenbens
(supra ) and Jogendranath Jha (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 acquittal in revision; in
particular, jogendranath Jha’s case stresses
that it is not open to a High Court to convert
a finding of acquittal into one of conviction
in view of the provisions 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
formally 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
the judgment of the High Court. In that
connection this Court observed that there
could be little doubt that the dice was loaded
against the appellants of that case and it
might prove difficult 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 circumstances of
the case in general."
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8
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 should be exercised 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." In face of prohibition in s. 439(4) Cr.p.c. for
the High Court to convert 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 finding 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 contingencies for attracting the High
Court’s power of ordering re-trial can be laid down. This
Court, however, by way of illustration, indicated
136
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 evidence which-was admitted by the
trial court to be inadmissible;
(iv) Where the material evidence has been
over-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.
These categories were however, merely illustrative and it
was clarified that other cases of similar nature can also be
properly held to be of exceptional nature where the High
Court can justifiably interfere with the order of acquittal.
In Mohendra Pratap Singh (supra) the position was again
reviewed and the rule laid down in the three earlier cases
reaffirmed. In that case the reading of the judgment of 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 Judge 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 acquittal on revision, when
the Government had not chosen to file an appeal against it.
"In other words" said this Court, "the 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 and
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 four
decisions noticed by it. As observed in D. Stenben’s case
(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,
Government has a right of appeal under S. 417. This
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8
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. Again, as pointed
out in Jogendranath Jha’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 dealings, with a revision petition by a private party
against an order of acquittal, in the absence of any error
on a point of law, reappraise the evidence and reverse the
findings of fact on which the acquittal was based by
resorting to the device of stopping short of finding the
accused guilty and passing sentence on him. This would be a
subterfuge impermissible in our judicial process.
137
No doubt, the appraisal of evidence by the trial Judge the
case in hand is not perfect or free from flaw and a court of
appeal may well have felt justified in disagreeing with its
conclusion, but from this it does not follow that on
revision by a private complainant, the High Court is
entitled to reappraise the evidence for itself as if it is
acting as a court of appeal and then order a re-trial. It
is unfortunate that a serious offence inspired by rivalry
and jealousy in the matter of election to the office of
village Mukhia, should go unpunished. But that can scarcely
be a valid ground for ignoring or for not strictly following
the law as enunciated by this Court.
There is also another aspect of the matter. 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 unless 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 reassessment of the oral evidence
on the record, while exercising its power of revision at the
instance of a private, complainant. We are, therefore,
constrained to allow this appeal, quash the impugned order
of the High Court and restore that of the trial court.
V.P.S. Appeal allowed.
138