Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.   2420   OF 2009 (Arising out of S.L.P. (Criminal) No. 3662 of 2007)

Sheetala Prasad and others ...  Appellants

Versus

Sri Kant and another        ...Respondents

J U D G M E N T

J.M. PANCHAL, J.

Leave granted.

2. This  appeal  is  directed against  judgment  dated  

May  25,  2007,  rendered  by  the  learned  single  

Judge of High Court of Judicature at Allahabad  

in Criminal Revision No. 5819 of 2006, by which  

the  finding  recorded  by  the  learned  Additional

Sessions Judge, Jaunpur in Sessions Trial Case  

No.271 of 2000, decided on September 7,  2006  

that the appellants are not guilty under Section  

308  IPC but  are  guilty  under  Section  324/149  

IPC and are entitled to be released on probation  

of  good  conduct,  is  set  aside  and  the  case  is  

remanded  to  the  Court  of  learned  Additional  

Sessions  Judge  with  a  direction  to  pass  fresh  

order of conviction of the appellants in the light of  

observations made in the judgment and impose  

sentence on them in accordance with law.

3. The facts emerging from the record of the case are  

as under: -

The  respondent  No.  1,  i.e.,  Kant  Pandey,  

resides at village Tikara, District Jaunpur.  On May 16,  

1999,  the  appellants  formed  an  unlawful  assembly,  

common object of which was to cause injuries to Varun  

and Manoj,  who are  sons  of  Kant  Pandey.   At  about  

11.30  a.m.,  the  appellants,  in  furtherance  of  their  

common object, assaulted Varun and Manoj who were  

ploughing their field with a tractor and caused injuries  

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to them and when Kant Pandey tried to save his sons,  

he was also assaulted and his licensed gun was broken.

The First  Information Report  was lodged by  

Kant Pandey, on the basis of which investigation was  

conducted.   At  the  conclusion  of  investigation,  the  

appellants were charge-sheeted in the court of learned  

Magistrate for commission of offences punishable under  

Sections 147, 148, 308, 323, 325, 427, 504, 506 read  

with  Section  149  IPC.   As  offence  punishable  under  

Section  308  IPC  is  exclusively  triable  by  a  Court  of  

Sessions,  the  case  was  committed  to  the  Court  of  

Sessions, Jaunpur, for trial.

4. Since  the  appellants  did  not  plead  guilty,  the  

prosecution  examined  seven  witnesses  to  prove  

its case against the appellants.  After evidence of  

the prosecution witnesses was over, the learned  

Additional  Sessions  Judge  explained  to  the  

appellants  the  circumstances  appearing  against  

them  in  the  evidence  of  prosecution  witnesses  

and  recorded  their  further  statements  under  

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Section 313 of  the Code of  Criminal  Procedure,  

1973.  In their further statements, the case of the  

appellants  was  that  of  total  denial.   They  also  

examined  three  witnesses  in  support  of  their  

defence.

5. On  appreciation  of  evidence  adduced  by  the  

parties,  the  learned  Additional  Sessions  Judge  

held  that  no  case  for  commission  of  offence  

punishable under Section 308 IPC was made out  

against the appellants, but it was proved by the  

prosecution  that  the  appellants  had  committed  

offences  punishable  under  Sections  148,  324  

read with Section 149 IPC and Section 429 read  

with Section 149 IPC.  Having regard to the age,  

character,  antecedents of  the appellants  and to  

the  circumstances  in  which  the  offences  were  

committed, the learned Judge was of the opinion  

that it was expedient that the appellants should  

be  released  on  probation  of  good  conduct.  

Therefore, instead of sentencing them at once to  

any punishment, the learned Judge by judgment  

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dated September 7, 2006 directed release of the  

appellants on each of them entering into a bond  

for a sum of Rs.10,000/- with two sureties for the  

like amount to appear and receive sentence when  

called upon during the period of two years and in  

the meantime to keep the peace and be of good  

behaviour.

6. It is relevant to notice that neither the acquittal of  

the appellants under  Section 308 IPC nor their  

release  on  probation  after  finding  them  guilty  

under Section 324 read with Section 149 IPC was  

challenged by the State of UP before the higher  

forum.   However,  acquittal  of  the  appellants  

under  Section  308  IPC  and  their  release  on  

probation  after  their  conviction  under  Section  

324 read with Section 149 IPC was made subject-

matter of challenge before the High Court by the  

original informant by filing Criminal Revision No.  

5819 of 2006.

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7. The learned Single Judge, who heard the revision  

application,  appreciated  the  evidence  on  record  

and  prima  facie  came  to  the  conclusion  that  

offence punishable under Section 308 read with  

Section  149  IPC,  was  made  out  against  the  

appellants.  The learned Single Judge arrived at a  

firm finding that in view of the injuries sustained  

by Varun and the first informant, the appellants  

could not have been convicted under Section 324  

IPC with the aid of  Section 149 and, therefore,  

the  conviction  of  the  appellants  under  Section  

324 read with Section 149 IPC and direction to  

release them on probation, were liable to be set  

aside.   In  view  of  these  findings,  the  learned  

Single  Judge,  by  the  impugned  judgment,  has  

confirmed  the  finding  recorded  by  the  learned  

Additional Sessions Judge that the appellants are  

guilty but thereafter has set aside the acquittal of  

the appellants under Section 308 IPC as well as  

their  conviction  under  Section  324  read  with  

Section 149 IPC and also the direction to release  

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them  on  probation.   The  learned  Judge  has  

further  remitted  the  matter  to  the  Court  of  

learned  Additional  Sessions  Judge,  Jaunpur  to  

pass  fresh order  of  conviction and sentence  on  

the appellants, keeping in view the observations  

made in the body of the judgment.  Having regard  

to the facts of the case, this Court feels that the  

finding recorded and directions given by the High  

Court should be reproduced verbatim, which read  

as under: -

“Consequently,  this  revision  is  hereby  allowed.   Those  findings  of  impugned  judgment,  whereby  the  accused- respondents  have  been  found  guilty,  are  upheld, but the finding recorded in para 32  thereof  with  regard  to  the  offence  under  Section 308 IPC as well as the conviction of  the  accused-respondents  under  Section  324/149 IPC and order of releasing them on  probation  of  good  conduct  are  hereby  set  aside.

Session  Trial  No.271 of  2000 is  sent  back  to  the  Court  of  Additional  Sessions  Judge/Special  Judge  (E.C.  Act),  Jaunpur,  who  is  directed  to  pass  fresh  order  of  conviction  and  sentence  of  the  accused- respondents  in  accordance  with  law,  keeping  in  view  the  observations  made  in  the body of this judgment.”

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The above finding and directions have given rise to the  

instant appeal.

8. This Court has heard the learned counsel for the  

parties  at  length  and  considered  the  evidence  

forming part of the record.

9. The  High  Court  was  exercising  the  revisional  

jurisdiction  at  the  instance  of  a  private  

complainant  and,  therefore,  it  is  necessary  to  

notice  the  principles  on  which  such  revisional  

jurisdiction can be exercised.  Sub-Section (3) of  

Section  401  of  Code  of  Criminal  Procedure  

prohibits conversion of a finding of acquittal into  

one of conviction.  Without making the categories  

exhaustive,  revisional  jurisdiction  can  be  

exercised  by the  High Court  at  the  instance  of  

private complainant (1) where the trial court has  

wrongly shut out evidence which the prosecution  

wished  to  produce,  (2)  where  the  admissible  

evidence  is  wrongly  brushed  aside  as  

inadmissible,  (3)  where  the  trial  court  has  no  

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jurisdiction to try the case and has still acquitted  

the accused, (4) where the material evidence has  

been overlooked either by the trial  court  or the  

appellate  court  or  the  order  is  passed  by  

considering irrelevant evidence and (5) where the  

acquittal  is  based  on  the  compounding  of  the  

offence which is invalid under the law.  By now, it  

is  well  settled  that  the  revisional  jurisdiction,  

when invoked by a private  complainant  against  

an order of acquittal, cannot be exercised lightly  

and that it can be exercised only in exceptional  

cases where the interest of public justice require  

interference for correction of manifest illegality or  

the prevention of gross miscarriage of justice.  In  

these cases, or cases of similar nature, retrial or  

rehearing of the appeal may be ordered.

10. Applying the above stated principles to the facts  

of the case on hand, this Court finds that after  

discussing  medical  evidence  and  evidence  of  

injured witness in great detail the High Court has  

prima  facie  come  to  the  conclusion  that  case  

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under Section 308 IPC is made out against the  

appellants.  Such a conclusion could have been  

recorded  only  in  a  properly  constituted  appeal,  

filed by the State Government.  The High Court  

has further concluded that no offence punishable  

under  Section  324  IPC  is  committed  by  the  

appellants.   This  finding  could  have  been  

recorded only in an appeal filed by the appellants.  

In  the  face  of  prohibition  contained  in  Section  

401(3) of the Code of Criminal Procedure, it was  

all the more incumbent upon the High Court to  

see  that  it  does  not  convert  the  finding  of  

acquittal  into  one  of  conviction  by  the  indirect  

method.  Further, the matter is remitted to the  

learned  Additional  Sessions  Judge  for  the  

purpose of passing fresh order of conviction and  

imposition of  sentence on the appellants in the  

light  of  what  is  observed  in  the  impugned  

judgment.  In the impugned judgment, the High  

Court  has  concluded  that  the  appellants  are  

guilty under Section 308 read with Section 149  

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IPC and not under Section 324 read with Section  

149 IPC.  Therefore, on remand the Trial Court is  

left with no judicial discretion but to convict the  

appellants under Section 308 read with Section  

149  IPC  and  impose  punishment  on  them.  

Normally,  when High Court  decides to  interfere  

with the judgment of the Trial Court in exercise of  

revisional  jurisdiction,  the  retrial  of  the  case  is  

ordered based on certain well  settled principles.  

However,  after  recording  guilt  of  an  accused  

under particular provision of Indian Penal Code,  

the matter could not have been remitted to the  

Sessions Court  for  passing appropriate order of  

conviction and punishment.

11. On  the  facts  and  in  the  circumstances  of  the  

case, this Court is of the view that the High Court  

has exercised revisional jurisdiction with material  

illegality  and  irregularity  resulting  into  

miscarriage  of  justice  to  the  appellants  and,  

therefore, the appeal deserves to be allowed.

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12. For  the  reasons  stated  in  the  judgment,  the  

appeal  succeeds.  The judgment dated May 25,  

2007, rendered by the learned Single Judge of the  

High  Court  of  Judicature  at  Allahabad  in  

Criminal  Revision  No.  5819 of  2006 remanding  

the case to the Court of learned Sessions Judge  

for  passing  proper  order  of  conviction  of  the  

appellants and imposing punishment on them is  

hereby set aside.

13. The judgment dated September 7, 2006, delivered  

by  the  learned  Additional  Sessions  Judge,  

Jaunpur in Sessions Trial Case No. 271 of 2000  

convicting  the  appellants  under  Sections  148,  

342 read with Section 149 and Section 427 read  

with Section 149 IPC and directing their release  

on probation for a period of two years is restored.

…………………………J. [R.V. Raveendran]

…………………………J. [J.M. Panchal]

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New Delhi; December 17, 2009.

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