http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

         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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

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