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PETITIONER: BISWANATH GHOSH

       Vs.

RESPONDENT: STATE OF WEST BENGAL & ORS.

DATE OF JUDGMENT16/02/1987

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) ERADI, V. BALAKRISHNA (J)

CITATION:  1987 AIR 1155            1987 SCR  (2) 305  1987 SCC  (2)  55        JT 1987 (1)   555  1987 SCALE  (1)435

ACT:     Constitution  of India, 1950, Article  136--Interference by Supreme Court with an order of acquittal recorded by  the High Court at the instance of a private complaint, permissi- bility.     Code   of   Criminal  Procedure,  1973,   section   385, scope--Appeal disposed of in the absence of the records from the  Sessions Judge and when even notices for the  grant  of bail were not issued. solely relying on the concession  made by the Public Prosecutor as to the discrepancy in the number of injuries found on the deceased and the witnesses’ deposi- tion is vitiated and bad in law.

HEADNOTE:     Respondents  2 to 9 preferred an appeal to the  Calcutta High Court against their conviction and sentence dated 19.3. 1984.  On  22.3.  1984 a Division Bench of  the  High  Court admitted  the  appeal but did not grant bail on  that  date. Within  a  fortnight  thereafter, i.e. on  12.4.  1984,  the application for bail moved by the Respondents came up before the  Bench  for consideration. The appeal was  not  set  for hearing  on  that day. The records which had  been  requisi- tioned  from the Court of the Additional Sessions Judge  had not  been  received  and notices of the bail  had  not  been issued.  Acting on an alleged concession made by the  Public Prosecutor, the Bench allowed the appeal itself and  acquit- ted  the  respondents. The  appellant-complainant’s  Special Leave  Petition  No. 2025/84 dated 15.10. 1984  against  the said orders of acquittal was allowed to be withdrawn to move the  High Court for review. The appellants’ review  petition dated  5.12. 1984 having been dismissed on the  ground  that the High Court had no power to review its judgment under the Code of Criminal Procedure, 1973, the appellant has now come in appeal by special leave. Allowing the appeal, the Court,     HELD:  1.  Normally, the Supreme Court, as a  matter  of practice, is reluctant to interfere with an order of acquit- tal recorded by the High Court at the instance of a  private complainant, but the circumstances of the case are such that there is no other alternative but to interfere in this 306

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case.  The  procedure adopted by the High Court was  not  in consonance  with  the procedure established by law  and  has resulted in flagrant miscarriage of justice. [306H; 307A]     Under  Section  385 of the Code of  Criminal  Procedure, 1973  it was obligatory for the High Court to have  fixed  a date for the hearing of the appeal and sent for the  records of the Court of Sessions and thereafter hear the parties  on merits. It does no credit to any branch of administration of justice  that  an  appeal against  conviction  or  acquittal should  be  allowed without the Appellate Court  having  the records before it and without pursuing the evidence  adduced by the prosecution. Assuming that the learned Public  Prose- cutor  conceded that there was no evidence, the  High  Court had  time to satisfy itself upon perusal of the record  that there  was no reliable and credible evidence to warrant  the conviction  of the accused under s. 148 and s.302 read  with s. 149 of the Indian Penal Code. [308B-E]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.  94 Of 1987.     From  the Judgment and Order dated 8.2.1985 of the  Cal- cutta High Court in Crl. A.No. 112 of 1984. Parijat Sinha and B.D. Ahmed for the Appellant. K.C. Aggarwala and P.K. Chakravarthy for the Respondents. The Order of the Court was delivered: ORDER Special’ leave granted. Arguments heard.     The  short question involved in this appeal  is  whether the  High  Court was justified in allowing the  appeal  pre- ferred by the accused persons against their conviction under s. 148 and s.302 reads with s. 149 of the Indian Penal Code, 1860  without  having the records of the Court  of  Sessions before it and without perusal of the evidence adduced by the prosecution.     Normally, this Court, as a matter of practice, is reluc- tant to interfere with an order of acquittal recorded by the High Court at the instance of a private complainant, but the circumstances of the case 307 are  such that there is no other alternative for us  but  to interfere. We wish to mention that earlier the Court had  in Special  Leave Petition (Crl.) No. 2025/84 dated  15.10.1984 allowed the petitioner-complainant to withdraw the  petition to  move the High Court for review. The petitioner on  5.12. 1984  filed  an application for review but  the  High  Court dismissed the same by its order dated 8.2.1985 on the ground that  it had no power to review its judgment under the  Code of Criminal Procedure, 1973. The complainant has accordingly applied  for special leave. The application is much  belated but we have no other alternative but to interfere.     The  facts. Aggrieved by their conviction  and  sentence under s. 148 and s.302 read with s. 149 of the Indian  Penal Code by the Additional Sessions Judge, 1st Court, Burdwan by his  judgment and sentence dated 19.3.1984, the  respondents preferred an appeal to the Calcutta High Court. On 22.3.1984 a  Division  Bench of the High Court (P.C.  Barooah  and  S. Chakravarty, JJ) admitted the appeal but did not grant  bail to the respondents on that date and reserved them liberty to apply for bail later. It directed that the records be requi- sitioned  from  the Court of Sessions.  Within  a  fortnight thereafter i.e. on 12.4.1984, the application for bail moved by  the respondents came up for consideration. On  that  day

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the appeal was not listed for heating. The records which had been requisitioned from the Court of the Additional Sessions Judge had not been received and notices of the bail had  not been  issued.  Instead of dealing with the  application  for bail,  the learned Judges appeared to have acted on  an  al- leged  concession made by the learned Public Prosecutor  and acquitted the respondents.     The  learned  Judges during the course  of  their  order observed that the contention on behalf of the respondents in support of their bail application was that the alleged dying declaration made by the deceased Jagannath Ghose having been disbelieved  by  the learned Additional Sessions  Judge,  no reliance  could be placed on the testimony of  the  eye-wit- nesses  as the place of incident was not visible from  where they  are alleged to have seen the occurrence and also  that about  100 persons had surrounded the victim and as such  it was not possible to definitely state that only the 8 accused i.e. the respondents were involved. After stating this,  the learned Judge observed: "The  learned  Public Prosecutor in his usual  fairness  has pointed  out  that although the witnesses spoke of  4/5  in- juries, the deceased had actually 27." 308 and  added that this was a fit case where benefit  of  doubt should be given to the accused and accordingly said that  no useful  purpose would be served in having a paper-book  pre- pared  and  keeping the accused in further  agony.  In  that view,  the learned Judges allowed the appeal, set aside  the conviction  and sentence passed on the respondents on  their conviction under s. 148 and s.302 read s. 149 of the  Indian Penal Code.     We are constrained to observe that the procedure adopted by  the High Court was no in consonance with  the  procedure established  by  law. Under s.385 of the  Code  of  Criminal Procedure,  it  was obligatory for the High Court to  fix  a date  for  the hearing of the appeal and then send  for  the records  of  the Court of Sessions and hear the  parties  on merits.  There was no warrant for the procedure  adopted  by the  learned Judges in disposing of the appeal in this  cha- valler  manner. It does no credit to any branch of  adminis- tration of justice that an appeal against conviction  should be  allowed without the Appellate Court having  the  records before  it and without perusing the evidence adduced by  the prosecution.  To  say the least, there has been  a  flagrant carriage of justice. It may be, as the High Court records in order,  that  the learned Public  Prosecutor  conceded  that there was no evidence but then the High Court had to satisfy itself  upon perusal of the records that there was no  reli- able and credible evidence to warrant the conviction of  the accused  under  s.  148 and s.302 read with s.  149  of  the Indian Penal Code.     The result therefore is that the appeal succeeds and  is allowed.  The order of acquittal recorded by the High  Court is  set  aside  and we direct the High Court  to  admit  the appeal  to its file and dispose of it afresh notice  to  the parties and after the records requisitioned are received  by it.  After the respondents nos.-2-9 are taken into  custody, they may apply to the High Court for being enlarged on bail. The High Court will deal with the application on its merits. S.R.                                                  Appeal allowed. 309