Full Judgment Text
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PETITIONER:
BANSI LAL & ORS.
Vs.
RESPONDENT:
LAXMAN SINGH
DATE OF JUDGMENT15/07/1986
BENCH:
ERADI, V. BALAKRISHNA (J)
BENCH:
ERADI, V. BALAKRISHNA (J)
DUTT, M.M. (J)
CITATION:
1986 AIR 1721 1986 SCR (3) 191
1986 SCC (3) 444 JT 1986 49
1986 SCALE (2)2
ACT:
Criminal Procedure Code, 1973-S. 439-High Court-
Revisional Jurisdiction-When entitled to set aside order of
acquittal of Trial Court and order re-trial.
HEADNOTE:
The appellants, after trial by the Court of Additional
Sessions Judge on a charge of murder under s. 302 read with
s. 34 of the Indian Penal Code, were acquitted giving them
the benefit of doubt.
The respondent, a son of the deceased victim, preferred
a criminal revision petition before the High Court under s.
397/401 Cr.P.C. challenging the order of acquittal. A Single
Judge allowed the revision petition, set aside the acquittal
of the appellants and remitted the case to the trial Court
for re-trial.
The appellants appealed to this Court, inter alia,
contending that the Single Judge of the High Court has
transgressed the bounds of his revisional jurisdiction in
reappreciating the evidence and setting aside their
acquittal.
Allowing the appeal,
^
HELD: 1. The High Court has clearly transgressed the
limits of its revisional jurisdiction under s. 439(4) of Cr.
P.C. in setting aside the order of acquittal passed by the
Additional Sessions Judge and directing a re-trial of the
case. [197F]
2. Even in an appeal against an order of acquittal no
interference will be made with the judgment of the trial
Court except in rare and exceptional cases where there has
been some manifest illegality in the approach to the case or
in the appreciation of the evidence or where the conclusion
of fact recorded by the Trial Judge is wholly unreasonable
so as to be liable to be characterised as perverse and there
bas been a
192
resultant miscarriage of justice. The revisional
jurisdiction of the High Court while dealing with an order
of acquittal passed by the trial court is more narrow in its
scope. It is only in glaring cases of injustice resulting
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from some violation of fundamental principles of law by the
trial court, that the High Court is empowered to set aside
the order of the acquittal and direct a re-trial of the
acquitted accused. From the very nature of this power it
should be exercised sparingly and with great care and
caution. [195A-C]
K.C. Reddy v. State of Andhra Pradesh, [1963] 3 SCR
412; D. Stenbens v. Nosibolla, [1951] SCR 284; Jogendranath
Jha v. Polailal Biswas, [1951] SCR 676; Akalu Ahir and Ors.
v. Ramdeo Ram, [1974] I SCR 130; Amar Chand Aggarwal v.
Shanti Bose, AIR 1973 SC 799; and Satyendra Nath Dutta and
Anr. v. Ram Narain, [1975] 2 SCR 743 followed.
3. The mere circumstance that a finding of fact
recorded by the trial court may in the opinion of the High
Court be wrong, will not justify the setting aside of the
order of acquittal and directing a re-trial of the accused.
[197C]
In the instant case, the High Court did not keep in
mind the principles regarding the limits of its revisional
powers while dealing with the order of acquittal passed by
the Additional Sessions Judge, which did not suffer from any
manifest illegality. The dominant justification of the order
of acquittal recorded by the trial court is the view it took
of the evidence of the two eye-witnesses. Having carefully
gone through the records of the case, this Court is
satisfied that it was a possible view and it cannot be
characterised as illegal or perverse. It may well be that
the Single Judge of the High Court was not inclined to agree
with the trial Court’s finding on the basis of his
independent scrutiny and appreciation of the evidence
adduced in the case but that would not furnish any
justification for interference in revision with the order of
acquittal passed by the Additional Sessions Judge. Even in
an appeal the Appellate Court would not have been justified
in interfering with an acquittal merely because it was
inclined to differ from the findings of fact reached by the
trial court on the appreciation of the evidence. The
revisional power of the High Court is much more restricted
in its scope. [ 197B-F]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
320 of 1986
193
From the Judgment and order dated 12 11.1984 of the
Delhi High Court in Crl Revision No 228 of 1982
S. Rangarajan, Miss Asha Rani Jain and Sanjay Parikh,
for the Appellant.
K.N. Chitkara and R.C. Verma for the Respondent.
The Judgment of the Court was delivered by
BALAKRISHNA ERADI, J. Special leave granted. Heard both
sides.
The five appellants were tried by the court of
Additional Sessions Judge, Delhi on a charge of murder under
Section 302 read with Section 34 of the Indian Penal Code.
After a very detailed consideration of the evidence adduced
in the case, the learned Additional Sessions Judge acquitted
the appellants giving them the benefit of doubt The
respondent herein, who is a son of the deceased victim of
the murder preferred a criminal revision petition before the
High Court of Delhi under Section 397/401 Cr. P.C.
challenging the order of acquittal passed by the learned
Additional Sessions Judge. A learned Single Judge of the
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High Court allowed that revision petition, set aside the
acquittal of the appellants and remitted the case to the
trial court for re-trial
Aggrieved by the said judgment of the High Court the
appellants have come up to this Court with this appeal and
the main contention raised by them is that the learned
Single Judge of the High Court has transgressed the bounds
of his revisional jurisdiction in reappreciating the
evidence and setting aside their acquittal.
After hearing counsel appearing on both sides we have
unhesitatingly come to the conclusion that the aforesaid
contention of the appellants is well founded and has to be
upheld.
Briefly stated, the prosecution case was that on the
mid-night of 3rd and 4th June, 1980 while Laxman Singh (P.W.
1) was sleeping on the terrace of his house in the DESU
Colony, Delhi along with his cousin Moti Lal (P.W. 7), they
heard the noise of a quarrel and loud shouting from the lane
below and on looking down from the terrace they found that
deceased Ram Chander was being beaten by accused
194
Nos. 1 and 4 (Appellant Nos. 1 and 4). Thereupon they rushed
to the place of the incident. One Babu Lal who was residing
in the adjoining quarter also came there and when all the
three tried to intervene and separate deceased Ram Chander
and the two accused, the first accused called out to Bhagwat
(second accused), who was looking down from his adjacent
quarter asking him why he was just watching while Ram
Chander was assaulting them. In response to the said call it
is alleged that Bhagwat along with the remaining accused
came there carrying lathis in their hands. There appears to
have been a free for all fight. It is said that Ram Chander
wielding an iron handle of a hand-pump was giving blows to
the accused and he in turn was being beaten by lathis by the
remaining persons. It is the case of the prosecution that
Ram Chander was administered lathi blows on his head by
accused Nos. 1 and 2, as a result of which he fell down
bleeding and died on the spot. Thereafter all the five
accused are said to have run away from the scene with their
lathis.
In support of the prosecution story, three persons were
examined as eye-witnesses namely, P.W 1, P.W. 2 and P.W. 7.
P W. 2, however, turned hostile and did not support the
prosecution version in his deposition before the trial
court. The learned Additional Sessions Judge discussed at
length the testimony given by P.W 1 and P W. 7 as well as
the medical evidence adduced in the case. He found that
there were serious discrepancies and glaring inconsistencies
between the versions spoken by P.W. 1 and P.W. 7 and that
the medical evidence also did not support their version of
the incident. In the result he found that the testimony of
these eye-witnesses could not be safely relied on and the
prosecution had failed to prove its case beyond reasonable J
doubt.
The learned Single Judge of the High Court has thought
it fit to re-appreciate the evidence of the two eye-
witnesses as well as the testimony given by the medical
doctor who conducted the postmortem on the body of the
deceased Ram Chander. By such a process of elaborate re-
examination of the evidence the learned Single Judge was
inclined to reach a conclusion different from that recorded
by the learned Additional Sessions Judge regarding the
acceptability of the testimony of P.W 1 and P.W. 7. It is on
this basis that the learned Judge has proceeded to set aside
the acquittal of the appellants and order a retrial of the
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case after virtually recording findings in regard to the
credibility of the evidence given by the witnesses relied on
by the prosecution.
195
Even in an appeal against an order of acquittal no
interference will be made with the judgment of the trial
court except in rare and exceptional cases where there has
been some manifest illegality in the approach to the case or
the appreciation of the evidence or where the conclusion of
fact-recorded by the Trial Judge is wholly unreasonable so
as to be liable to be characterised as perverse and there
has been a resultant miscarriage of justice The revisional
jurisdiction of the High Court while dealing with an order
of acquittal passed by the trial court is more narrow in its
scope. 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 the acquittal and direct a retrial of the
acquitted accused. From the very nature of this power it
should be exercised sparingly and with great care and
caution. In K.C. Reddy v. State of Andhra Pradesh, [1963] 3
S.C.R. 412, this Court had occasion to consider the scope of
the revisional jurisdiction conferred on the High Court in
relation to orders of acquittal passed by the trial court
and after referring to two earlier decisions of this Court
reported in D. Stenbens v. Nosibolla, [1951] S R. 284 and
Jogendranath Jha v. Polailal Biswas, [1951] S.C.R. 676 the
legal position was explained thus:
"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 indirectly 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 witness and the circumstances of the
case in general."
196
This decision was subsequently followed by this Court in
Akalu Ahir and others v. Ramdeo Ram, [1974] 1 S.C.R. 130
where this Court observed:
"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(S), Cr. P.C. that where no appeal is brought
in a case in which an appeal is provided, no
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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 on 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 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 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, A.I.R.1973
S.C. 799, this Court said that normally the
jurisdiction of the High Court under section 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 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
197
invoke the revisional jurisdiction of the High
Court for redress against miscarriage of justice
arising from an erroneous order of acquittal."
The same position has been reiterated by this Court in
Satyendra Nath Dutta and Anr. v. Ram Narain, [1975] 2 S.C.R.
743.
It is unfortunate that the High Court did not keep in
mind the principles laid down in the aforesaid rulings
regarding the limits of its revisional powers while dealings
with an order of acquittal passed by the subordinate court.
The mere circumstance that a finding of fact recorded by the
trial court may in the opinion of the High Court be wrong,
will not justify the setting aside the order of acquittal
and directing a re-trial of the accused. In the present case
the judgment of the learned Additional Sessions Judge did
not suffer from any manifest illegality. The dominant
justification of the order of acquittal recorded by the
trial court is the view it took of the evidence of the two
eye-witnesses. Having carefully gone through the records of
the case we are satisfied that it was a possible view and it
cannot be characterised as illegal or perverse. It may well
be that the learned Single Judge of the High Court was not
inclined to agree with the said view on the basis of his
independent scrutiny and appreciation of the evidence
adduced in the case but that would not furnish any
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justification for interference in revision with the order of
acquittal passed by the learned Additional Sessions Judge.
Even in an appeal the Appellate Court would not have been
justified in interfering with an acquittal merely because it
was inclined to differ from the findings of fact reached by
the trial court on the appreciation of the evidence. The
revisional power of the High Court is much more restricted
in its scope. We accordingly hold that the High Court has
clearly transgressed the limits of its revisional
jurisdiction under Section 439(4) of Cr. P.C. in setting
aside the order of acquittal passed by the Additional
Sessions Judge and directing a re-trial of the case.
The appeal is therefore allowed, the judgment of the
High Court is set aside and the order of the acquittal
passed by the trial court will stand restored.
A.P.J. Appeal allowed.
198