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PETITIONER: MAHENDRA PRATAP SINGH

       Vs.

RESPONDENT: SARJU SINGH & ANR.

DATE OF JUDGMENT: 20/11/1967

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. VAIDYIALINGAM, C.A.

CITATION:  1968 AIR  707            1968 SCR  (2) 287  CITATOR INFO :  R          1973 SC1274  (17)  RF         1973 SC2145  (4,8)  R          1975 SC 580  (4)

ACT: Code of Criminal Procedure (Act 5 of 1898), s. 439--Sessions Court acquits-Revision--Power of High Court.

HEADNOTE:     In  a revision filed by a private party, the High  Court in  its  powers  under s. 439, Code  of  Criminal  Procedure directed  the   retrial   of  the appellant,  who  had  been acquitted  by  the Sessions Judge.  In doing  so.  the  High Court,  went  into the evidence  very  minutely,  questioned every   finding  of  the  Sessions  Judge,  gave   its   own interpretation of the evidence de novo. HELD:  In  setting  aside an acquittal  in  a  revision  and ordering  a retrial, there must exist a manifest  illegality in  the  judgment  of acquittal or a  gross  miscarriage  of justice.   An  interference  in revision with  an  order  of acquittal can only take place, if there is a glaring  defect of  procedure such as that the Court has no jurisdiction  to court  had  shut  out  some  material  evidence  which   was admissible   or attempt to take into account evidence  which was   not  admissible  or  had  overlooked  some   evidence. Although  the  list  given  is not  exhaustive  of  all  the circumstances in which the High Court may interfere with  an an, acuital in revision it is obvious that the defect in the judgment under revision must be analogous to those  actually indicated by this Court. [290 A,D--E] D.  Stephens v. Nosibolla, [1951] S.C.R.  284,  Logendranath ]ha  and others v. Shri Polailal Biswas, [1951]  S.C.R.  676 and K. Chinnaswamy Reddy v. State of Andhra Pradesh,  [1963] 3 S.C.R. 412, followed.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 23  of 1965. Appeal  by special leave from the judgment  and order  dated July 17, 1964- of the Patna High Court in Criminal  Revision

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No. 597 of 1963. Nur-ud-din Ahmed and D. Goburdhan, for the appellant. R.C. Prasad. for respondent No. 1. The Judgment of the Court was delivered by      Hidayatullah,  J.   This  is  an  appeal  against   the judgment.  July 17, 1963. of a learned single Judge  of  the High  Court  at  Patna setting aside the  acquittal  of  the appellant  ordered  by the 1 st Additional  Sessions  Judge. Gaya and directing his retrial.      The  only question in this appeal is whether  the  High Court  in exercising its revisional powers under s.  439  of the Code of Criminal Procedure acted in accordance with  the principles  settled  by  this Court  for  interference  with acquittal by way of revision filed 288 by  a  private party.  To apply  those  principles,  certain facts first be stated.     The  appellant  was  tried  on  three  charges  levelled against him First was under s. 302 of the Indian Penal  Code for intentionally causing the death of one Kuldip Singh with a fire-arm on December 18, 1961 in village Gajra Chatar; the second  was  attempt murder Kuldip Shigh’s  companion  Sarju Singh by shooting at him with the same weapon; and the third was the unlawful possession of the weapon (a revolver) which is an offence under the Arms Act. It appears that there  was some  iII-feeling between the appellant and  Kuldip   Singh, not  directly, but because the appellant, who is  a  lawyer, was  conducting cases on behalf of his sister  in  prolonged litigation  started  by  Kuldip  Singh  and  his   party.The litigation  concerned  the  possession of  land  and  it  is admitted  before us that all the cases had in fact ended  in favour of the appellant’s sister.     The  occurrence  is stated to have taken place  when  an inquiry  into  a case under s. 107 of the Code  of  Criminal Procedure  was  taking place.  A notice had been  issued  to Kuldip  Singh’s party to show cause why they should  not  be proceeded  against and asked to furnish interim  bail.   The prosecution   story  is  that  the  deceased  Kuldip   Singh accompanied by Sarju Singh the injured man, and one  Musafir Singh  (P. W. 12)  were proceeding towards  village  Nawadah via  Tilaiya Railway Station.’ They  had  started  early  in the  morning  and  had taken an hour and  a  half  to  reach village  Gajra  Chatar where the incident is  said  to  have taken place. When they reached near a garden. they found two persons  sitting  under  a tree and  approaching  them  they recognised  the appellant but the other was unknown.   These persons began to shadow Kuldip Singh and his companions, and after  they  had  proceeded a  little  further  towards  the garden,  one  of  them  fired at Kuldip  on  his  back.  The prosecution  case is that Sarju immediately   turned   round and  attempted to catch hold of the appellant who had  fired with  a revolver, but ’the appellant shot Sarju on  his  leg behind the knee. Thereafter. the appellant and his companion ran away.     The  report  of the incident was made  by  Kuldip  Singh himself who seems not to have lost his consciousness and  in that  report he named the appellant.   Subsequently,  Kuldip made  two  dying declarations in which he  again  named  the appellant as the assailant. describing the weapon of  attack as a revolver.  Kuldip died and the case was started against the appellant as stated already.     The,  learned  Sessions  Judge on an  appraisal  of  the evidence found it unsatisfactory.  He began by stating  that the   medical  evidence   as  also  the  evidence  of   ’the ballistic  expert  (P.W.  17)  clearly  disclosed  that  the

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assault  was not committed with a revol vet but with a  shot gun.  He also could not believe the evidence. 289 that  Sarju could be shot from behind when he was  grappling with  the appellant.  He felt that this created doubt as  to whether the injured persons and Musafir who all consistently described  the weapon as a revolver had in fact been able to see the weapon or  to identify the assailant.  Having  found this  unworthy  of credit, the learned Sessions  Judge  went into  a number of other circumstances which in  his  opinion tended  to show that the prosecution case was not free  from concoction  and hence not free from doubt. He felt that  the attack was from an ambush and the deceased and 1he witnesses had  named the appellant with whom they had deep enmity  but they  had not seen the real assailant.  He accordingly  gave the  benefit  of  doubt to the  appellant  and  ordered  his acquittal.   In  revision,  the learned Judge in ’the High  Court  went into the evidence very minutely.  He questioned every single finding  of  the  learned Sessions Judge and  gave  his  own interpretation   of  the evidence and the inferences  to  be drawn from it.  He discounted the theory that the weapon  of attack was a revolver and suggested that it might have  been a shot gun or country made pistol which the villagers in the position  of Kuldip and Sarju could not distinguish  from  a revolver.He then took up each single circumstance  on  which the  learned  Sessions  Judge  had  found  some  doubt   and interpreting  the  evidence de novo held,  contrary  to  the opinion  of  the Sessions Judge that they  were  acceptable: All the time he appeared to give the benefit of the doubt to the  prosecution.  The only error of law which  the  learned Judge found in the Sessions Judge’s judgment was a remark by the  Sessions  Judge  that the defence  witnesses  who  were examined  by the police before they were brought as  defence witnesses  ought to have been cross examined with  reference to  their previous statements recorded by the police,  which obviously  is against the provisions  of  the’   Code.Except for  this  error,  no  defect of procedure  or  of  law  was discovered  by  the learned Judge of the High Court  in  his appraisal of the judgment of the Sessions Judge.  As  stated already by us,he seems to have gone into the matter as if an appeal   against   acquittal  was  before  him   making   no distinction between the appellate and the revisional  powers exercisable by the High Court in matters of acquittal except to  the extent that instead of convicting the  appellant  he only   ordered  his  retrial. In  our  opinion  the  learned Judge  was  clearly in error in proceeding as he  did  in  a revision  filed  by a private party. against  the  acquittal reached in 1he Court of Session.     The  practice  on the subject has been  stated  by  this Court  on  more  than  one  occasion.   In  D.  Stephens  v. Nosibolla(1),  only two grounds are mentioned by this  Court as  entitling  the High Court set aside an  acquittal  in  a revision and to order a retrial. They [1915] S.C.R. 284. 290 are  that  there  must exist a manifest  illegality  in  the judgment  of the Court of Session ordering the acquittal  or there must be a gross miscarriage of justice.  In explaining these  two propositions, this Court further states that  the High Court is not entitled to interfere even if a wrong view of law is taken by the Court of Session or if even there  is misapprehensions  of evidence.  Again, in  Logendranath  Jha and others v. Shri Polailal Biswas(1), this Court points out that the High Court is entitled in revision to set aside  an

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acquittal  if  there  is an error on a point of  law  or  no appraisal  of the evidence at all. This Court observes  that it is not sufficient to say that the judgment under revision is "perverse" or "lacking in true correct perspective".   It is pointed out further that by ordering a retrial, the  dice is loaded against the accused, because however much the High Court  may  caution   the Subordinate Court,  it  is  always difficult  to reweigh the evidence ignoring the  opinion  of the  High Court.  Again in K. Chinnaswamy Reddy v. State  of Andhra Pradesh(2), it is pointed out that an interference in revision  with an order of acquittal can only take place  if there  is  a glaring defect of procedure such  as  that  the Court  had no jurisdiction to try the case or the Court  had shut  out  some material evidence which  was  admissible  or attempted  to  take  into account  evidence  which  was  not admissible  or had overlooked some evidence.   Although  the list  given  by  this Court is not  exhaustive  of  all  the circumstances in which the High Court may interfere with  an acquittal  in revision it is obvious that the defect in  the judgment under revision must be analogous to those  actually indicated  by  this Court.  As stated’,’ not one  of   these points  which have been laid down by this Court was  covered in the present case.  In fact on reading the judgment of the High  Court it is apparent to us that the learned Judge  has reweighed  the  evidence  from his own  point  of  view  and reached  inferences contrary to those of the Sessions  Judge on  almost  every point. This we do not conceive to  be  his duty   in  dealing  in  revision  with  an  acquittal   when Government has not  chosen  to  file an  appeal against  it. In other words, 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.     We have had the two judgments read out to us and we  are of opinion that there is much that can be said in favour  of the  judgment of the Sessions Judge who probably  felt  that the  identity of the real assailant not having  been  found, the persons chose to name the most likely persons or one who was  responsible  for their discomfiture in  the  litigation which was going on for years. That the appellant might  have hired some assassins or might even have himself been present at the occurrence may be true but the question (1) [1951] S.C.R. 676.        (2) [1963] 3 S.C.R. 412. 291 was whether the Sessions Judge was not within his rights  in rejecting the prosecution case on a proper appraisal of  the evidence  which he found to be unsatisfactory.   Looking  to all the circumstances that have been brought to our  notice, we  are satisfied that the Sessions Judge acted  within  his rights  in deciding the case which to us appears also to  be somewhat  doubtful in many respects and the High  Court  was therefore  in  error  in taking upon itself the  l  duty  of hearing  a revision application as if it was an  appeal  and setting  aside the acquittal not by convicting  the  accused but  reaching  the  same result  indirectly  by  ordering  a retrial.  In  our opinion, the judgment of  the  High  Court cannot be allowed to stand.     The  appeal  succeeds  and  the  order  of  retrial   is therefore revoked and the acquittal is restored. Y.P.                                        Appeal allowed.