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PETITIONER: KHETRABASI SAMAL ETC.

       Vs.

RESPONDENT: STATE OF ORISSA ETC.

DATE OF JUDGMENT: 14/08/1969

BENCH: MITTER, G.K. BENCH: MITTER, G.K. SIKRI, S.M. REDDY, P. JAGANMOHAN

CITATION:  1970 AIR  272            1970 SCR  (1) 880  1969 SCC  (2) 571  CITATOR INFO :  R          1973 SC1274  (17)  R          1975 SC 580  (4)

ACT:       Code of Criminal Procedure (5 of 1898), s. 417(1)  and (3)--Case  of assault--Case against some accused started  on police   report   and  against  others   on   complaint   to Magistrate--Two  cases  clubbed and  tried  together-Accused acquitted--Appeal against acquittal against accused  against whom  case initiated on police  report--Whether  complainant could file or only State competent to life.

HEADNOTE:       A  first information report to the police  was  lodged against the appellants and some others--ten persons in  all, for having taken part in an assault and causing hurt to  the victim of the assault.  On the police report, the Magistrate took cognizance  of the case.  More than six were after  the incident, the victim filed a complaint before the Magistrate naming thirty-one persons (including the ten persons against whom  the first in formation was given) as: his  assailants, and  the Magistrate took cognizance of the case against  the other  twenty-one  accused  as  a  separate  case.   On  the application of the complainant (victim), the two. cases, one on the police report and the other on the private complaint, were  clubbed  and tried together.  The  Magistrate,  on  an examination  of the evidence, held that there was  no  proof beyond reasonable  doubt  that the accused persons committed the assault and  acquitted  all  of  them.  The  complainant then  filed  an appeal under s. 417(3),  Criminal  Procedure Code,  to  the  High Court.  The  appellants,  against  whom cognizance  of  the  case was taken on  the  police  report, challenged  the maintainability of the appeal on the  ground that  the  appeal against their acquittal  was  maintainable only  if preferred by the State Government under s.  417(1). The  High  Court overruled the  objection,  reappraised  the evidence  of  the  witnesses,  upset  the  finding  of   the Magistrate and convicted the appellants.        In appeal to this Court, on the questions: (1 ) As to the  maintainability of the appeal by the  complainant;  and

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(2) Whether the matter should be sent back to the High Court for disposal under s. 439 of the Code,        HELD:  (1  ) Though the two. cases could  be  clubbed together  for convenience of trial under s. 239 of the  Code the  nature and identity of the cases in relation  to  their appealability  under s. 417 were not altered.  In  the  case started  against  the appellants on the  police  report  the appeal  against acquittal could have been filed only by  the State  Government,  and if no. such appeal  was  filed,  the complainant  could only invoke the revisional powers of  the High Court under s. 439 if proper grounds were present. [883 A-C]        (2) The High Court can exercise its revisional powers under  s. 439 when invoked by a private complainant  against an  order  of  acquittal against which the State has a right of  appeal  under ’s. 417, only in  exceptional  cases  when there is some glaring defect in the procedure and there is a manifest error on a point of law and consequently there  has been  a flagrant miscarriage of justice.  The  present  case however is one of mere appraisal of evidence. In such a case the  High  Court  under s. 439,  could  not  re-examine  the evidence or order a retrial.  Therefore, the case was no.t a fit one for sending back to the High Court. [883 E-F; 884 E- G; 885 A. F-H] D.  Stephens v. Nosibolla, [1951] S.C.R. 284,   Logendranath jha  v. Polailal Biswas [1951] S.C.R. 676 and K. Chinnaswamy Reddy v. State A..p. [1963] 3 S.C.R. 412, 418, followed. 881

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION:  Criminal  Appeals Nos. 160) and 171 of 1967.      Appeals  by special leave from the judgment  and  order dated  May  12, 1967 of the Orissa High  Court  in  Criminal Appeal No. ’194 of 1965. S.N. Anand, for the appellants (in Cr.A. No. 160 of 67).    R.K.  Garg, S.C.Agarwal, D.P. Singh, Sumitra  Chakravarty and  Uma  Dutt,  for the appellants (in Cr.A.  No.’  171  of 1967).     V.C.  Mahajan and R.N. Sachthey, for the respondent  (in Cr.A. No. 160 of 1967). The Judgment of the Court was delivered by     Mitter, J.  These two appeals by special leave are  from one  judgment of the High Court of Orissa hearing an  appeal from an order of acquittal of 31 persons accused on  charges under  as.  147, 323 and 325 of the Indian  Penal  Code  for being members of an unlawful assembly and having voluntarily caused  hurt and inter alia a grievous one by dislocating  a tooth  by  means  of a knife-like thing  of  one  Jagabandhu Behera, the appellant before the High Court.     The  incident is alleged to have happened on October  4, 1963  at  about 11 a.m. in village Anantapur  in  course  of which  the  accused  persons are  said  to.  have  assaulted Jagabandhu  Behera with lathis and sharp  instruments.   The motive  for the crime was said to be enmity arising  out  of Gram  panchayat  election and  previous  litigation  between Jagabandhu  Behera and Khetrabasi Samal, one of the said  31 persons.  The first information report was lodged at 5  p.m. by one Maguni Charan Biswal who however was not examined  at the  trial.  In this report ten persons were stated to  have taken part in assaulting and hurting Jagabandhu.  More  than six  weeks thereafter Jagabandhu filed a complaint before  a Magistrate  in  which he named 31  persons  including  those

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against whom the first information report had been lodged as his assailants.  The complainant stated therein that he  had been  assaulted so mercilessly as to render him  unconscious and he recovered consciousness in Anantapur Dispensary where he  was treated by a doctor.  From there he was taken  to  a hospital  in Cuttack and was lodged there till November  18, 1962.     The Magistrate ’examined the complainant on the same day and  directed  another  Magistrate of  the  First  Class  to inquire  and report.  On January 23, 1963 after getting  the report  of such inquiry and hearing the person against  whom the  complaint  was  made on  their  protest  petition,  the Magistrate  held "that there was a prima facie case  against the  accused  persons under ss. 147/ 323 I.P.C.  except  the first  ten  accused persons  as per the  complaint  petition since they had already been  sent for trial in 882 G.R. No. 1943 of 1962".  He took cognizance against  accused persons  from  serial  Nos. 11 to 31 as  per  the  complaint petition under ss. 147/323 I.P.C.    The  G.R. case had  already been started on the basis  of the  first  information  report.   On  July  12,  1963   the complainant  Jagabandhu Behera filed a petition to club  the complaint case along with the analogous G.R. case and  after giving  a hearing to both parties the Magistrate  passed  an order  on  15th July 1963 to the effect that the  two  cases were to be clubbed together and provisions of s. 252 Cr.P.C. were  to  be  followed.   The proceedings  went  on  for  an inordinately long time and ultimately on August 23, 1965 the trying  Magistrate delivered a judgment acquitting  all  the accused.   Jagabandhu  Behera filed an appeal  to  the  High Court under s. 417(3) of the Code of Criminal Procedure  and the   grounds   urged  in  support  of  such   appeal   were substantially   based  on  the.  alleged  failure   of   the Magistrate to take a proper view of the evidence.     Before  the High Court, a point was taken on  behalf  of the  respondents  challenging  the  maintainability  of  the appeal  as against accused 1 to 10 against  whom  cognizance was  taken  on  the police report.  Among these ten  persons are the appellants in the two appeals to this Court.  It was urged  that as these ten persons had figured as  accused  in G.R. Case No. 1943 of 1962 an appeal against their acquittal would  not lie at the instance of the complainant  under  s. 417(3) but would only be maintainable if preferred under  s. 417(1) by the State Government.  It was also contended  that mere  clubbing together of the two cases, the G.R. case  and the complainant’s case, for joint trial would not change the character  thereof  so as to convert the G.R.  case  into  a complaint case.     The  High Court  over-ruled this  objection  mainly   on the ground that s. 239 Cr.P.C. allowed the trial of a number of  persons  whether  accused  of the  same  offence  or  of different offences if these were committed in the course  of the   same  transaction. The High Court then considered  the merits   of  the  appeal,  examined  the  evidence  of   the prosecution witnesses and  took the view that the  testimony of  prosecution  witnesses 1,  2 and 5 who claimed  to  have witnessed the incident themselves had been discarded by  the Magistrate   on  extraneous  considerations.   Sifting   the evidence  for itself the High Court held that seven  of  the accused  i.e.  the appellants to this Court were  guilty  of some of the charges framed against them and passed sentences ranging  from three months to six months in different  cases after setting aside the acquittal.     It  was contended before us on behalf of the  appellants

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that the appeal to the High Court was incompetent and in our view  this  contention  must be accepted.   There  were  two separate cases 883 of which cognizance’ was taken  separately.  One was started on  the basis of a police report while the other was on  the complaint of Jagabandhu Behera.  As the accused in both  the cases  were  said to have committed the  offences.  in  the. course.  of  the same transaction, the  cases  were  clubbed together  for  the purpose of trial and such  a  course  was clearly  permissible  under  s. 239 Cr.P.C.   That  did  not however alter the nature of the cases so as to affect  their appealability  under s. 417.  The two cases  retained  their individuality  except for the convenience of the trial.   If the cases had ended in conviction they would have had to  be separately  recorded.   The  first ten  accused  would  have had to appeal from their conviction and sentence in the G.R. case and similarly the remaining accused from the  complaint case.  If the State. did not think it proper to  direct  the Public  Prosecutor  to present an appeal to the  High  Court from  the order of acquittal in the G.R. case it might  have been  open to the complainant to. invoke the powers  of  the High Court  under s. 439 of the’ Code if proper grounds; for revision were present. Counsel  for  the respondents. argued that this was  a  case where we should not allow the appeal on the ground that  the High Court had gone wrong in exercising its powers under  s. 417(3)  of the Code  but should send the matter back to  the High  Court  for  disposal according to  law  including  the powers  under  s.  439  of  the  Code.   It  was  said  that Jagabandhu Behera had been beaten up. by a number of persons in  a  public place in broad day light  and  although  there might  be infirmities in the evidence adduced on  behalf  of the prosecution and contradictory statements made by some of the  prosecution witnesses, we should not put an end to  the proceedings here but send the matter back to the High  Court for proper disposal. In  our  view, the law does not permit such a course  to  be adopted  on the facts of this case.  The powers of the  High Court  under  s. 439 Cr.P.C. although wide  are  subject  to certain  limitations.   Section 439 (4)  expressly  provides that  the section shall not be deemed to authorise the  High Court  to  convert  a  finding  of  acquittal  into  one  of conviction. This Court has had to. examine the jurisdiction of the High Court  under  this  section on  several  occasions.   In  D. Stephens v. Nosibulla (1) it was pointed out (see at p. 291) that :-                     "The  revisional jurisdiction  conferred               on the High     Court under section 439 of the               Code  of  Criminal  Procedure  is  not  to  be               lightly exercised, when it is invoked     by a               private   complainant  against  an  order   of               acquittal     against which the Government has               a  right of appeal     under section 417.   It               could  be exercised only in exceptional  cases               where the interests of  public  justice                   [1951] S.C.R. 284.               881               require interference. for the correction of  a               manifest  illegality, or the prevention  of  a               gross    miscarriage   of    justice.     This               jurisdiction is not ordinarily invoked or used               merely  because the lower court has  take.n  a               wrong  view of the law or misapprehension  the

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             evidence, on record".                 Again  in  Logendranath  Jha  &  Others   v.               Polailal  Biswas(1) where the High  Court  had               set  aside  an  order  of  acquittal  of   the               appellants by the Sessions Judge and  directed               their retrial, this Court (see at p. 681) said               :-                     "Though  sub-section (1) of section  439               authorises the High Court to exercise, in its,               discretion,  any of the powers conferred on  a               court  of appeal by section  423,  sub-section               (4)   specifically  excludes  the   power   to               ’convert  a finding of acquittal into one.  of               conviction’.   This  does  not  mean  that  in               dealing with a revision petition by a  private               party against an order of acquittal, the  High               Court  could in the absence of any error on  a               point  of  law  reappraise  the  evidence  and               reverse  the findings of facts on   which  the               acquittal was  based, provided only it stopped               short  of  finding  the  accused  guilty   and               passing   sentence   on   him.    By    merely               characterising the judgment of the trial court               as  ’perverse’ and ’lacking  in  perspective’,               the High Court cannot reverse pure findings of               fact  based on the trial court’s  appreciation               of   the   evidence  in  the  case".   In   K.               Chinnaswamy   Reddy   v.   State   of   Andhra               Pradesh(2). The court proceeded to define  the               limits  of the jurisdiction of the High  Court               under  s. 439 of the Criminal  Procedure  Code               while setting aside an order of acquittal.  It               was said:                     ":   .....  this jurisdiction should  in               our  opinion be exercised by ’the  High  Court               only  m exceptional cases, when there is  some               glaring defect in the procedure and there is a               manifest   error  on  a  point  of   law   and               consequently   there  has  been   a   flagrant               miscarriage of justice. It is not possible to.               lay  down  the criteria for  determining  such               exceptional   cases  which  would  cover   all               contingencies.  We may however  indicate  some               cases of this kind, which would in our opinion               justify the. High Court in interfering with  a               finding of acquittal in revision.  These cases               may   be:  where  the  trial  court   has   no               jurisdiction  to  try the case but  has  still               acquitted  the  accused, or  where  the  trial               court has wrongly shut out evidence which  the                             prosecution  wished to produce, or  wh ere  the               appeal  court has wrongly held evidence  which               was   admitted  by  the  trial  court  to   be               inadmissible,  or where material evidence  has               been overlooked               (1)  [1561] S.C.R. 676.  (2) [1963]  3  S.C.R.               412, 418.                      885                 either  by the trial court or by the  appeal               court, or where   the acquittal is based on  a               compounding of the offence,   which is invalid               under the law".   It  may  be  that  a  case  not  covered  by  any  of  the contingencies mentioned above may still arise.  But,  where,

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as here, the appeal court (the High Court in tiffs case) has set  aside  the order of acquittal almost  entirely  on  the ground  that the Magistrate should not have disbelieved  the three  eye   witnesses,  viz., P.Ws. 1, 2 and  5,  the  case clearly  falls  within the contingencies  mentioned  in  the above decision of this Court.  The High Court judgment  does not  show that the trial court shut out any  evidence  which the  prosecution  wanted  to produce  or  admitted  any   in admissible  evidence  or overlooked any  material  evidence. The  Magistrate  examined  the  evidence  produced  by   the prosecution.  According  to  him, there  was  strong  enmity between the two parties of Jagabandhu Behera and  Khetrabasi Samall and although the incident was supposed to have: taken place in front of a large number of shops and before a large gathering, only one person from those shops, P.W. 5 who  was a  chance  witness occasionally going to the place  for  the purpose of carrying on his business in fish, was examined by the  prosecution  and  there  was  no  explanation  for  not examining  the  other  witnesses  named  in  the   complaint petition.   P.W.  1, one of the witnesses mentioned  in  the judgment  of  the High Court and relied on by  it  was   the complainant’s father-in-law and as such a person  interested in the success of the prosecution.  Relying on the testimony of  the  doctor  who had  examined  Jagabandhu  Behera,  the Magistrate  found himself unable tO accept the  evidence  of the  prosecution witnesses to the effect that the injury  to the tooth was caused by a sharp-cutting instrument in  which case  other external injuries could not have  been  avoided. The  Magistrate  was  doubtful as  to  whether  the  accused persons  had  any hand in the commission of  the  crime  and although  the assault on Jagabandhu was a brutal  one  there was,   according  to  the  Magistrate,  no   proof    beyond reasonable  doubt  that it was the accused persons  who  had committed  it.  The High Court proceeded to  reappraise  the evidence  of  the  witnesses and upset the  finding  of  the Magistrate thereon on the ground that he "had not taken  the trouble of sifting the grain from the chaff".  Clearly  such a  course  is not permissible under s. 439 of  the  Criminal Procedure   Code.   Nor  in  our  opinion  the  facts,   and circumstances  of  this case warrant the ordering of  a  re- trial  by  the High Court if it felt  disposed  to  exercise powers  under  s 423 Cr.P.C. expressly included in  s.  439. Sending the ease back to the High Court can serve no  useful purpose.   As the appeal to the High CoUrt was incompetent, we  allow the appeals and direct the cancellation of their bail bonds. V.P.S.   Appeal allowed. 886