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