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PETITIONER: K.   CHINNASWAMY REDDY

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH

DATE OF JUDGMENT: 25/07/1962

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. SINHA, BHUVNESHWAR P.(CJ) SHAH, J.C.

CITATION:  1962 AIR 1788            1963 SCR  (3) 412  CITATOR INFO :  R          1968 SC 707  (8)  R          1970 SC 272  (11)  RF         1970 SC1934  (7)  F          1973 SC  84  (6)  R          1973 SC1274  (17)  RF         1973 SC2145  (4,8)  R          1975 SC 580  (4)  R          1978 SC   1  (15)  E          1981 SC1415  (1,2)  R          1986 SC1721  (9)

ACT: Acquittal--Power   of  High  court   in   revision--Retrial- -Admissibility  of statement made by accussed during  Police investigation--Code  of Criminal Procedure, 1898 (Act  V  of 1898), s. 439--Indian Evidence Act, 1872 (1 of 1872), s. 27.

HEADNOTE: The  appellant, tried with another, was convicted  under  s. 411  Indian Penal Code while the other was  convicted  under ss. 457 and 380 of the Code by the Assistant Sessions judge. The appellant had stated to the police during  investigation that she would show the place where he had hidden them  (the ornaments)"  and thereafter went to the garden and  dug  out two  bundles  containing the ornaments.  The  other  accused person had also similarly stated that he had given the  413 ornaments to one Bada Sab, took the police party to Bada Sab and  asked  him to return the ornament which  he  did.   The Sessions Judge on appeal took the view that that part of the statement of the appellant where he said that he ’had hidden the  ornaments  was not admissible in evidence  and  in  the absence  of  any other evidence possession of  the  ornament could not be said to have been proved.  He, therefore,  held that the appellant was entitled to the benefit of doubt  and acquitted  him.  He also took a similar view with regard  to the  other accused person and acquitted him.  The  order  of acquittal was set aside by the High Court in revision  under s.  439 of the Code of Criminal Procedure and a retrial  was directed.   It  was against the order of  retrial  that  the appeal was directed.

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Held,  that it was open to a High Court in revision  and  at the  instance  of a private party to set aside an  order  of acquittal  though  the State might not have  appealed.   But such  jurisdiction should be exercised only  in  exceptional cases,  as  where  a glaring defect in the  procedure  or  a manifest  error of law leading to a flagrant miscarriage  of justice has taken place.  When s. 439(4) of the Code forbids the  High Court from converting a finding of acquittal  into one  of  conviction, it is not proper that  the  High  Court should do the same indirectly by ordering a retrial.  It was not possible to lay down the criteria for by which to  judge such  exceptional  cases.  It was, however, clear  that  the High  Court would be justified in interfering in cases  such as  (1) where the trial court had wrongly shut out  evidence sought  to  be  adduced by the prosecution,  (2)  where  the appeal court had wrongly held evidence admitted by the trial court  to be inadmissible, (3) where material  evidence  has been  overlooked either by the trial court or the  court  of appeal   or,  (4)  where  the  acquittal  was  based  on   a compounding  of the offence not permitted by law  and  cases similar to the above. D.   Stephens v. Nosibolla, [1951] S.C.R. 284 and  Logendra- nath  Jha,  v.  Shri Polailal  Biswas,  [1951]  S.C.R.  676, referred to. There could be no doubt in the instant case that the  entire statements of the appellant as well as of the other  accused person  would  be  admissible tinder s.  27  of  the  Indian Evidence  Act and the Sessions judge was in error in  ruling out  parts of them and the High Court was clearly  justified in setting aside the acquittal in revision. Pulukuri  Kotayya v. King Emperor, (1946) L.R. 74  I.A.  65, referred to. 414

JUDGMENT: CRIMINAL  APPELLATE  JURISDICTION: Criminal Apeal No.  6  of 1960. Appeal  by special leave from the judgment and  order  dated July  1,  1959,  of the Andhra Pradesh  High  Court  in  Cr. Revision  Case No. 403 of 1958 and Criminal  Revision  Petn. No. 337 of 1957. P.   Ram Reddy, for the appellant. K.R. Choudhuri, and P. D. M for respondent No. 1. K. R. Chaudhuri, for respondent No. 2. 1962.  July 25.  The Judgment of the Court was delivered by WANCHOO,  J.-This is an appeal by special leave against  the judgment  of the Andhra Pradesh High Court.   The  appellant was  convicted under s. 411 of the Indian Penal Code by  the Assistant  Sessions  Judge  of  Kurnool.   Along  with  him, another  person  Hussain  Saheb  was  also  tried  and   was convicted  under so. 457 and 380 of the Indian  Penal  Code. The  case for the prosecution briefly was that the house  of Rahayya  in  Dudyia was burgied on the night  of  April  20, 1957.   Ramayya  and his wife were sleeping outside  and  on waking  in  the morning they found that the house  had  been burgled  and  valuable  property  stolen.   The  matter  was reported   to   the  police  and  during   the   course   of investigation  the  police  recovered 17  ornaments  on  the information  given by the appellant.  The other accused  had also given information on the basis of which another  stolen ornament  was recovered.  The Assistant Sessions Judge on  a consideration  of the evidence came to the  conclusion  that the other accused had actually committed house breaking  and

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had  removed  ornaments from the house of  Ramayya  and  had handed over 17 ornaments out 415 of  that  property to the appellant.  He also  came  to  the conclusion  that  the seventeen ornaments recovered  at  the instance  of  the appellant were in his  possession  and  he therefore found him guilty under s. 411 of the Indian  Penal Code.  The appellant and the other accused went in appeal to the  Sessions  Judge.   The Sessions  Judge  held  that  the appellant  had  not been proved to be in possession  of  the seventeen  ornaments  which were recovered at  his  instance from  a  garden.   The statement of the  appellant  in  this respect  was  that  "he would show the place  where  he  had hidden  them  (the ornaments)".  Thereafter he went  to  the garden  and  dug out two bundles  containing  the  seventeen ornaments  from  there.  The Sessions Judge  held  that  the recovery of ornaments from the garden at the instance of the appellant was proved; but he further held that that part  of the  statement  of the appellant where he said that  he  had hidden  the  ornaments  was  not  admissible  in   evidence. Therefore,  he  took  the view that as  the  ornaments  were recovered  from  a  place which was accessible  to  all  and sundry  and  there was no other evidence to  show  that  the appellant  had  hidden them, it could not be held  that  the ornaments were in the appellant’s possession.  He  therefore gave the benefit of doubt to the appellant and ordered  his acquittal.   He  also acquitted the other accused  at  whose instance  one of the stolen ornaments was  recovered.   This accused  had stated that he given the ornaments to Bada  Sab (P.   W. 5) and took the police party to Bada Sab and  asked him  to  return  the ornaments, which  Bada  Sab  did.   The Sessions Judge, however, on a consideration of the  evidence against  the other accused thought the case against him  was also  doubtful and ordered his acquittal, though he  ordered the return of ornaments to Ramayya. This  was  followed  by a revision by  Ramayya  against  the appellant and the other accused.  The 416 High  Court has allowed the revision and directed  that  the matter  should  go back to the Sessions Judge  so  that  the accused should be re-tried on the charges on which they  had been brought to trial on the former occasion.  It is against this  order  of the High Court directing  retrial  that  the present  appeal  by special leave is directed.   It  may  be mentioned, however, that only Chinnaswamy Reddy has appealed while  the other accused has not appealed against the  order of the High Court. The main contention of the appellant before us is that  this was   a  revision  by  a  private  party.   There  were   no exceptional  circumstances in this case which would  justify the High Court in interfering with an order of acquittal  at the instance of a private party.  Further, it is urged  that a.  439 (4) of the Code of Criminal  Procedure  specifically forbids  the  High  Court  from  converting  a  finding   of acquittal  into one of conviction and that a reading of  the judgment of the High Court shows that by the indirect method of  retrial  the  High Court has  practically  directed  the Sessions Court to convict the appellant and thus  indirectly converted  finding  of  acquittal into  one  of  conviction, through it has not been done and could not be done directly. The  extent  of the jurisdiction of the High  Court  in  the matter  of  interfering  in revision  against  an  order  of acquittal  has been considered by this Court on a number  of occasions.  In D, Stephens v. Nosibolla   (1)   this   Court observed-

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             "The revisional jurisdiction conferred on  the               High  Court  under  s.  439  of  the  Code  of               Criminal Procedure is not to be lightly  exer-               cised  when it in invoked by a  private  comp-               lainant against an order of acquittal, against               which  the  Government has a right  of  appeal               under a. 417.  It could be exercised only               (1)   [1951] S.C.R. 284.                417               in  exceptional cases where the  interests  of               public  justice 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  taken               a wrong view of the law or misappreciated  the               evidence on the record."               Again,  in Logendranath Jha v.  Shri  Polailal               Biswas(1), this Court observed-               "Though  sub-s. (1) of s. 439 of the  Criminal               Procedure  Code authorises the High  Court  to               exercise  in its discretion any of the  powers               conferred on a court of appeal by s. 423,  yet               sub-a. (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  can  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  stops               short  of  finding  the  accused  guilty   and               passing,  sentence  on him by ordering  a  re-               trial." 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, Logendranath  Jha’s  case  (1) 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  indirectly  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 (1)  (1951) S.C.R. 676. 418 complied with sub-a. (4) by directing only a retrial 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. It  is true that it is open to a High Court in  revision  to set  aside  an order of acquittal even at  the  instance  of private  parties, though the State may not have thought  fit to  appeal; but this jurisdiction should in our  opinion  be exercised by the High Court 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

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been a flagrant miscarriage of justice.  Sub-section (4)  of a.  439  forbids a High Court from converting a  finding  of acquittal  into one of conviction and that makes it 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 retrial,  when  it  cannot itself  directly  convert  a finding  of  acquittal  into  a finding of conviction.  This places limitations on the power of  the  High Court to set aside a finding of  acquittal  in revision and it is only in exceptional cases that this power should  be  exercised.  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  419 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 where the appeal court  has  wrongly held  evidence.which was admitted by the trial court  to  be inadmissible, or where material evidence has been overlooked 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.  These and other  cases  of similar  nature  can  properly  be  held  to  be  cases   of exceptional  nature,  where the High Court  can  justifiably interfere with an order of acquittal; and in such a case  it is  obvious that it cannot be said that the High  Court  was doing  indirectly what it could not do directly in  view  of the  provisions  of a. 439 (4).  We have  therefore  to  see whether the order ’of the High Court setting aside the order of acquittal in this case can be upheld on these principles. A  perusal of the judgment of the High Court shows that  the High Court has gone into the evidence in great detail so far as  the  case against the appellant was concerned.   In  our opinion, the High Court should not have dealt with  evidence in  such  detail when it was going to order a  retrial,  for such  detailed consideration of evidence, as pointed out  in Logendranath’s case (1) amounts to loading the dice  against the appellant, when the case goes back for retrial.  If  the matter  stood at this only, we would have no  hesitation  in setting  aside  the  order of the  High  Court  directing  a retrial;  but  there is one important circumstance  in  this case to which the High Court has adverted in passing, which, in  our opinion, was sufficient to enable the High Court  to set  aside the acquittal in this case.  It would  then  have been unnecessary to consider the evidence in that detail  in which the High Court has gone into it, and thus load the (1)  [1951] S.C.R.676. 420 dice  against  the appellant, when the case  goes  back  for retrial.   That circumstance is that the Assistant  Sessions Judge had admitted in evidence that part of the statement of the  appellant  in which he stated that he  would  show  the place where he had hidden the ornaments and relying on it he held  that the appellant was in possession of the  seventeen ornaments,  he  had dug out from the garden which  he  owned along  with  others.  The Sessions Judge however  held  that that part of the statement of the appellant where he  stated that  he  had  hidden  the  ornaments  was  inadmissible  in evidence.   The same applies to the case against  the  other accused,  ’who had stated that he had given one ornament  to Bada  Sab and would get it recovered from him.   Though  the

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Sessions Judge has not in specific trems ruled out that part of  the other accused’s statement where he said that he  had given the ornament to Bada Sab, he did not consistently with what   be  said  with  respect  to  the  appellant,   attach importance  to  this  statement of the  other  accused.   If therefore  this part of the statement of the  appellant  and the  other  accused which led to discovery of  ornaments  is admissible,  it must be held that the appeal  court  wrongly ruled   out  evidence  which  was  admissible.    In   these circumstances,  the  case would clearly be  covered  by  the principles  we  have set out above in as  much  as  relevant evidence  was ruled out as inadmissible and the  High  Court would  be  justified  in  interfering  with  the  order   of acquittal  so  that the evidence may  be  reappraised  after taking into account the evidence which was wrongly ruled out as inadmissible.  It seems that the High Court was conscious of this aspect of the matter, for it says in one part of the judgment  that  the only possible inference  that  could  be drawn  was  that the appellant was in possession  of  stolen goods before they were put in that secret spot, as  admitted by the appellant in his statement, part of which 421 is  admissible under s. 27 of the Indian Evidence  Act.   If the High Court had confined itself only to the admissibility of this part of the statement, it would have been- justified in interfering with the order of acquittal.   Unfortunately, the High Court went further and appraised the evidence  also which  it  should not have done, as held by  this  Court  in Logendranath’s  case.  However, if admissible  evidence  was ruled  out and was not taken into consideration, that  would in our opinion be a ground for interfering with the order of acquittal in revision. Let  us then turn to the question whether the  statement  of the  appellant to the effect that ,he had hidden them  (the ornaments)" and "would point out the place" where they were, is  wholly admissible in evidence under s. 27 or  only  that part of it is admissible where he stated that he would point out the place but not that part where he stated that he  had hidden the ornaments.  The Sessions Judge in this connection relied on Pulukuri Kotayya v. King-Emperor (2) where a  part of  the  statement leading to the recovery of a knife  in  a murder case was held inadmissible by the Judicial Committee. In that case the Judicial Committee considered s. 27 of  the Indian Evidence Act, which is in these terms :-               "Provided that, when any fact is deposed to as               discovered   in  consequence  of   information               received from a person accused of any offence,               in the custody of a police officer, so much of               such  information,  whether it  amounts  to  a               confession  or not, as relates  distinctly  to               the fact thereby discovered, may be proved." This  section  is  an  exception to ss.  25  and  26,  which prohibit the proof of a confession made to a police  officer or a confession made while a person is in (1) [1951] S.C.R. 676. (2) [1946] L.R. 74 I.A. 65. 422 police custody, unless it is made in immediate presence of a magistrate.   Section 27 allows that part of  the  statement made  by the accused to the police "whether it amounts to  a confession  or  not" which relates distinctly  to  the  fact thereby  discovered to be proved.  Thus even a  confessional statement before the police which distinctly relates to  the discovery of a fact may be proved under s. 87.  The Judicial Committee  had  in  that case to consider how  much  of  the

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information  given  by the accused to the  police  would  be admissible under a. 17 and laid stress on the words "so much of  such  information  as relates  distinctly  to  the  fact thereby  discovered" in that connection.  It held  that  the extent  of  the information admissible must  depend  on  the exact nature of the discovered to which such information  is required  to relate.  It was further pointed out  that  "the fact discovered embraces the place from which the object  is produced  and the knowledge of the accused as to  this,  and the information given must relate distinctly to this  fact." It was further observed. that-               "Information  as  to past user,  or  the  past               history of the object produced is not  related               to its discovery in the setting in which it is               discovered."               This  was exemplified further by the  Judicial               Committee by observing-               "Information  supplied by a person in  custody               that ’I will produce a knife concealed in  the               roof  of my house’ leads to the  discovery  of               the  fact  that a knife is  concealed  in  the               house  of the informant to his knowledge,  and               if  the knife is proved to have been  used  in               the  commission  of  the  offence.,  the  fact               discovered  is very relevant.  If  however  to               the statement the words be added with which               423               I  stabbed  A’, these words  are  inadmissible               since  they do not relate to the discovery  of               the knife in the house of the informant." If we may respectfully say so, this case clearly brings  out what part of the statement is admissible under a. 27.  It is only  that  part which distinctly relates to  the  discovery which  is  admissible;  but if any  part  of  the  statement distinctly  relates to the discovery it will  be  admissible wholly and the court cannot say that it will excise one part of  the  statement because it is of a  confessional  nature. Section  27  makes  that  part of  the  statement  which  is distinctly  related to the discovery admissible as a  whole, whether  it be in the nature of confession or not.  Now  the statement  in  this case is said to be  that  the  appellant stated that he would show the place where he had hidden  the ornaments.   The Sessions Judge has held that part  of  this statement which is to the effect ’where he had hidden them" is  not  admissible.  It is clear that if that part  of  the statement  is excised the remaining statement (namely,  that he  would show the place) would be  completely  meaningless. The   whole  of  this  statement  in  our  opinion   relates distinctly  to the discovery of ornaments and is  admissible under s. 27 of the Indian Evidence Act.  The words "where he had hidden them" are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of  the Judicial Committee.  These words (namely,  where  he had hidden them) have nothing to do with the past history of the crime and axe distinctly related to the actual discovery that took place by virtue of that statement.  It is  however urged  that  in  a  case  where  the  offence  consists   of possession even the words "where he had hidden them "  would be inadmissible as they would amount to an admission by  the accused that he was in possession.  There are in our opinion two answers to this argument.  In the first place, 424 s 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a  confession or not.  In the second place, these  words  by

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themselves though they may show possession of the appellants would  not  prove the offence, for after the  articles  have been  recovered, the prosecution has still to show that  the articles  recovered are connected with the crime, i.  e.  in this  case, the prosecution will have to show that they  are stolen  property.   We  are therefore of  opinion  that  the entire  statement  of the appellant (2) as well  as  of  the other accused Who stated that he had given the ornament  to Bada  Sab  and would have it recovered from  him)  would  be admissible  in evidence and the Sessions Judge was wrong  in ruling   out  part  of  it.   Therefore,  as  relevant   and admissible  evidence was ruled out by. the  Sessions  Judge, this is,% fit case where the High Court would be entitled to set aside the finding of acquittal in revision, though it is unfortunate that the High Court did not confine itself  only to  this  point and went on to make  rather  strong  remarks about other parts of the evidence. The  next question is what order should be passed in a  case like  the  present.   The High Court  also  considered  this aspect  of  the matter.  Two contingencies arise in  such  a case.   In the first place there may be an acquittal by  the trial court.  In such a case if the High Court is justified, on  principles we have enunciated above, to  interfere  with the order of acquittal in revision, the only course open  to it  is to set aside the acquittal and send the case back  to the trial court !or retrial.  But there may be another  type of  case,  namely, where the trial court has  convicted  the accused while the appeal court has acquitted him.  In such a case  if the conclusion of the High Court is that the  order of  the  appeal  court must be set aside,  the  question  is whether the appeal court should be 425 ordered to re-hear the appeal after admitting the  statement it had ruled out or whether there should K necessarily be  a retrial.  So far asthis is concerned, we are of opinion that it  in  open  to the High Court to take either  of  the  two courses.  It may order  a retrial or it may order the appeal court to re-hear the appeal.  It will depend upon the  facts of  each case whether the High Court would order the  appeal court to re-hear the appeal or would order a retrial by  the trial court.  Where, as in this case, the entire evidence is there  and  it  was the appeal court  which  ruled  out  the evidence  that  had been admitted by the  trial  court,  the proper course in our opinion is to send back the appeal  for rehearing to the appeal court.  In such a case the order  of the  trial court would stand subject to the decision of  the appeal  court on re-hearing.  In the present case it is  not disputed that the entire evidence has been led and the  only defect  is that the appeal court wrongly ruled out  evidence which was admitted by the trial court.  In the circumstances we  are of opinion that the proper course is to  direct  the appeal  court to re-hear the appeal and either maintain  the conviction  after  taking into  consideration  the  evidence which  was  ruled  out by it previously  or  to  acquit  the accused if that is the just course to take.  We should  like to  add  that the appeal court when it re-hears  the  appeal should  not  be influenced by any observations of  the  High Court  on the appreciation of the evidence and should  bring to  bear  its  own mind on the evidence  after  taking  into consideration   that  part  of  the  evidence   which   was, considered  inadmissible  previously by  it.   We  therefore allow  the  appeal  subject to  the  modification  indicated above. This  leaves  the  case of the other  accused.   We  are  of opinion that as we are directing the appeal court to re-hear

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the  appeal with respect to the appellant it is only  proper that the order relating to the 426 other accused should also be set aside and his appeal should also  be  re-heard  in  the  manner  indicated  above.    We therefore set aside the order of the High Court with respect to  the  retrial of the other accused and  direct  that  his appeal  will also be re-heard along with the appeal  of  the appellant.                                             Appeal allowed.                        --------