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PETITIONER: SATYENDRA NATH DUTTA & ANR.

       Vs.

RESPONDENT: RAM NARAIN

DATE OF JUDGMENT18/11/1974

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. BHAGWATI, P.N.

CITATION:  1975 AIR  580            1975 SCR  (2) 743  1975 SCC  (3) 398  CITATOR INFO :  R          1975 SC1854  (3)  R          1986 SC1721  (9)

ACT: Section   439  (4)-Appeal  against  acquittal   by   private complainant-State  not  preferring appeal  under  sec.  417- interference  with  the order  of  acquittal-Sessions  Court judgment   not  suffering  from  any  manifest   illegality- Acquittal  not resulting in any miscarriage of  justice-High Court, if could order retrial.

HEADNOTE: The  appellants Satyendra Nath Dutta and  Subhash  Mauzumdar were tried by the learned Civil and Sessions Judge, Lucknow. for offences in connection with the death of one Nanhey  Lal and injuries to his son, Raj Kishore.  Satyendra Nath  Dutta was  charged  under section 302 and section  307  read  with section  34  while  the other appellant  was  charged  under section  307  and section 302 read with section  34  of  the Penal  Code.   The  learned  Sessions  Judge  acquitted  the appellants upon which Ram Narain, a brother of the  deceased Nanhey  Lal, filed a revision application in the High  Court of Allahabad under section 439, Code of Criminal  Procedure. challenging the order of acquittal.  The High Court  allowed the  revision application, set aside the order of  acquittal and directed that the appellants be retried by the  Sessions Court.   This  appeal by special leave  has  been  preferred against the judgment of the High Court ordering retrial. Allowing the appeal, HELD : The revisional jurisdiction of the High Court  cannot be invoked merely because the lower court has taken a  wrong view  of the law or misappreciated the evidence  on  record. [745A] D.  Stephens v. Nosibolla, [1951] S.C.R.  284,  Logendranath Jha  and  Ors.  v. Polailal Biswas. [1951]  S.C.R.  676,  K. Chinnaswamy  Redd.),  v. State of Andhra  Pradesh  [1963]  3 S.C.R.  412,  Mahendra Pratap Singh v. Sarju  Singh  &  Anr. [1968],  2 S.C.R. 287 and Khetrabari Samal etc. v. Stale  of Orissa etc. [1970] 1 S.C.R. 880 referred to While  applying  the principles laid down by this  Court  in this  respect, the High Court has fallen precisely into  the error  which was corrected by this Court in these  decisions

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The  error  which the High Court committed is  that  in  the first  place  it  blamed the accused for  not  demanding  an identification  parade, secondly it held by examining a  few aspects  of  the evidence that the accused  were  previously known  to the eye-witnesses and thirdly it  assumed  wrongly that  the conclusion of the Sessions Court that  Nanhey  Lal had  made  a  dying declaration was  based  on  inadmissible evidence.    The  Sessions  Court  considered  the   various circumstances and came to the conclusion that Nanhey Lal had made a dying declaration.  That conclusion may be wrong  but that cannot justify setting aside the order of acquittal and directing  a  retrial  of  the  appellants.   The   dominant justification  of  the order of acquittal  recorded  by  the Sessions  Court is the view it took of the evidence  of  the eye-witnesses.   If  that evidence was  unacceptable,  there were  no circumstances in the case on which  the  appellants could be convicted. [748B-C] The  High Court has thus transgressed the narrow  limits  of its revisional jurisdiction under section 439(4) of the Code of  Criminal Procedure.  The judgment of the Sessions  Court did  not  suffer  from  any  manifest  illegality  and   the interests  of  justice  did not require the  High  Court  to interfere with the order of acquittal passed by the Sessions Court.   Any  fair assessment of the evidence  of  the  eye- witnesses  would show that the acquittal of  the  appellants led to no Miscarriage of justice. [748D]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 55  of 1971. 744 Appeal  by special leave from the Judgment and  order  dated the  29th  September  1970,  of  the  Allahabad  High  Court (Lucknow Bench) in Criminal Revision No. 364 of 1966. Debabrata Mukherjee Manoj Swaroop and U. S. Prasad, for  the appellants. Shivpujan Singh, for respondent. The Judgment of the Court was delivered by CHANDRACHUD  J.  The  appellants Satyendra  Nath  Dutta  and Subhash  Mauzumdar  were  tried by  the  learned  Civil  and Sessions Judge, Lucknow, for offences in connection with the death  of  one  Nanhey  Lal and injuries  to  his  son,  Raj Kishore.  Satyendra Nath Dutta was charged under section 302 and  section  307  read  with section  34  while  the  other appellant was charged under section 307 and section 302 read with  section  34 of the Penal Code.  The  learned  Sessions Judge  acquitted  the appellants upon which  Ram  Narain,  a brother  of  the  deceased  Nanhey  Lal,  filed  a  revision application  in  the High Court of Allahabad  under  section 439,  Code- of Criminal Procedure, challenging the order  of acquittal.  It is said that the State of U.P. wanted to file an appeal against the order of acquittal but it could not do so  as the record of the case was missing.  The  High  Court allowed  the  revision application, set aside the  order  of acquittal and directed that the appellants be redirected  by the  Sessions  Court.   This  appeal  by  special  leave  is directed against the judgment of the High Court ordering the retrial. Section  417(1)  of  the Code of  Criminal  Procedure,  1898 provides  that  the State Government may direct  the  Public Prosecutor  to present an appeal to the High Court  from  an order  of acquittal passed by any court other than the  High Court.   By sub-section (3) the High Court is  empowered  to

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grant  special leave to the complainant to appeal  from  the order  of  acquittal if such an order is passed  in  a  case instituted upon a complaint. Section 439(1) of the Code, which deals with the  revisional powers  of the High Court provides that in the  exercise  of revisional  jurisdiction the High Court may exercise any  of the powers conferred on a court of appeal.  As the court  of appeal  is entitled under section 423 (1) (a) to reverse  an order  of acquittal or to direct a retrial.  The High  Court in  the  exercise  of its revisional powers  would  also  be entitled  to record a conviction by reversing the  order  of acquittal.   But  sub-section (4) of  section  439  provides expressly that nothing contained in the section "   shall be deemed  to  authorise a High Court to convert a  finding  of acquittal  into one of conviction." This provision has  been judicially  interpreted and it is necessary to refer to  the decision of this Court bearing on the construction thereof. In  D.  Stephens v. Nosibolla(1) it was held by  this  Court that the revisional jurisdiction conferred by section 439 of the  Code  ought  not to be exercised  lightly  when  it  is invoked  by  a  private  complainant  against  an  order  of acquittal  which  could have been appealed  against  by  the Government  under section 417.  "It could be exercised  only in  exceptional cases where the interests of public  justice require  interference  for  the  correction  of  a  manifest illegality, or the prevention of (1)  [1951] SCR 284. 745 a  gross  miscarriage  of  justice."  In  other  words,  the revisional jurisdiction of the High Court cannot be  invoked merely because the lower court has taken a wrong view of the law   or   misappreciated  the  evidence  on   record.    In Logendranath  jha  & Others v. Polailal Biswas(1)  the  High Court,  at  the instance of private complainant,  set  aside the‘  order  of acquittal passed by the Sessions  Court  and directed that the accused be ’retried.  This Court held that the provision contained in section 439(4) of the Code cannot be  construed  to  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,provided  only it stops short of finding  the  accused guilty  and  passing sentence on him. The order  of  retrial based  on  a re-appraisal of evidence was  characterised  by this  Court as a formal compliance with the requirements  of section  439(4). In K. Chinnaswamy reddy V. State of  Andhra Pradesh(2)  the Court while emphasising that the  revisional jurisdiction  should  be  exercised by  the  High  Court  in exceptional cases only when there is some glaring defect  in the  procedure  or  a  manifest error  on  a  point  of  law resulting in a flagrant miscarriage of justice observed that it was not possible to lay down the criteria for determining such exceptional cases which would cover all  contingencies. The Court, however, indicated, in order to illustrate, a few of’  the  cases in which the revisional  jurisdiction  could properly   be  used.   An  acquittal  by  a  court   lacking jurisdiction or excluding evidence, which was admissible  or relying on inadmissible evidence or where material  evidence has been overlooked are some of the cases indicated by  this Court  as justifying the exercise of revisional powers.   In Mahendra  Pratap  Singh v. Sarju Singh & Anr.(3)  where  the High Court in exercise of its revisional powers had, at  the instance  of  a  private party,  directed  re-trial  of  the accused,  this Court on a review of the  previous  decisions reaffirmed  that the High Court was wrong in  entering  into

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minute details of evidence, while examining the decision  of the  Sessions Court under section 439(4) of the  Code.   The last  decision to which reference may be made is  Khetrabasi Samal etc. v. State of Orissa etc(4) . The High Court  while exercising  its  revisional jurisdiction had set  aside  the order of acquittal on the ground that the Magistrate  should not  have  disbelieved the three  eye-witnesses.   The  High Court  sought  justification for the course  it  adopted  by observing  that the Magistrate had not taken the trouble  of sifting  the  grain from the chaff.  The order of  the  High Court was set aside by this Court. The attention of the High Court was drawn to these decisions and  after referring to the principles laid down therein  it observed that the complainant’s revision application  before it had to be decided in the light of those principles.   But while  applying those principles the High Court  has  fallen precisely  into the error which was corrected by this  Court in the decisions referred to above. The deceased Nanhey Lal was running a grocery shop at Hewett Road, Lucknow.  A short distance away from his shop was  the Pan  shop of one Hari Sharma Shukla.  On September  4,  1965 the deceas- (1) [1951]  S.C.R. 676. (3) [1968] 2 S.C.R. 287. (2)  [1963] 3 S.C.R. 412. (4)  [1970] 1 S.C.R. 880. 746 ed Nanhey Lal, his brother Ram Narain, his sons Raj  Kishore and  Bijay- Kishore and relation called Sheetal Prasad  were having chat at about II p.m. Ram Narain sent Raj Kishore  to fetch a Pan from Hari Sharma’s shop.  When Raj Kishore  went to  bring the Pan, the appellant Subhash is alleged to  have given  a blow with a cane to him.  On hearing the shouts  of Raj  Kishore,  Nanhey  Lal went to the  Pan  shop.   In  the meantime,  the appellant Satyendra Nath Dutta  snatched  the cane  from Subhash’s hand.  When Nanhey Lal tried to  disarm Satyendra Nath Dutta, Subhash is alleged to have caught hold of Nanhey Lal facilitating a knife attack by Satyendra  Nath on  Nanhey Lal.  Raj Kishore intervened to save  his  father but  Subhash is alleged to have given him two  knife  blows. At  about 5 a.m. the next morning Nanhey Lal  succumbed  to, his injuries. The  prosecution  examined five eye-witnesses,  Ram  Narain, Barati  Lal,  Bijay  Kishore, Kallu and  Raj  Kishore.   The prosecution  also  relied on the circumstance that  a  cycle taken  on  hire  by  Subhash  was  found  at  the  scene  of occurrence. The  learned Sessions Judge examined with care the  evidence of  the eye-witnesses observing that the mere fact that  the witnesses were related to the deceased would be no ground to reject their evidence.  He also referred to what clearly was an  important,  circumstance  that  the  First   Information Report, which was lodged without delay, mentioned the  names of  Ram Narain and Bijay Kishore as eye-witnesses.  But  the learned Judge found the evidence of these and other eye-wit- nesses  unacceptable for a variety of reasons.  Raj  Kishore who  was also injured during the incident had made a  "dying declaration" at the Balrampur Hospital, Lucknow, at about 2- 30  p.m.  on  September 5. He had  mentioned  the  names  of persons who had witnessed the incident but did not refer  to Ram Narain.  The statement made by Raj Kishore could not  be treated  as  a  dying declaration because  he  survived  the attack.   But  he was cross-examined in  reference  to  that statement  and  he explained his omission to  refer  to  Ram Narain’s  presence  by saying that since Ram  Narain  was  a

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close  relation  he  did not refer  to  his  presence.   The Sessions Court rejected this explanation because Raj Kishore had  mentioned  the name of Sheetal  Prasad  as  eye-witness though  he  was related to him.  Ram Narain  was  the  elder brother of the deceased and yet he did not remove either the deceased  or Raj Kishore to the hospitals They were  removed to  the hospital by Bijay Kishore, hardly 12 or 13 years  of age. In  regard  to  the evidence of Bijay  Kishore,  though  Ram Narain had mentioned the names of eye-witnesses in the First Information  Report  he did not mention the  name  of  Bijay Kishore.   In  fact,  Ram  Narain did  not  refer  to  Bijay Kishore’s  presence  even  in  the  committing  Court.   His explanation  that he forgot to mention Bijay Kishore’s  name in  the  F.I.R.  and  that he  was  not  questioned  in  the committing   Court  about  Bijay  Kishore’s  ’presence   was rejected by the Sessions Court.  Bijay Kishore’s presence at the time of occurrence was not referred to by Raj Kishore in the: so-called dying declaration though the names of  others who had seen the incident were mentioned. The evidence of the other witnesses was also rejected by the Sessions  Court.   Barati  Lal was a  chance  witness.   His conduct in not 747 talking  to anyone at the spot was unnatural and  his  claim that his statement was recorded by the Investigating Officer the  same  night was belied by the evidence of  the  officer himself.   Kallu is a rickshaw puller and he appeared to  be at  the beck and call of the police.  He had given  evidence in three or four police cases. In regard to Raj Kishore the Sessions Court referred to  the contradiction between the, statement he made in the hospital and  the case of the prosecution bearing on the sequence  of events.   Raj  Kishore’s evidence that he was given  a  cane blow was not corroborated by medical evidence though he  was examined  by  the  doctor  within half  an  hour  after  the incident. The  recovery  of the bicycle which was relied upon  by  the prosecution  as  connecting the appellant Subhash  with  the crime   was   discarded  by  the  Sessions   Court   as   an incriminating circumstance as it was recovered not from near Hari Sharma’s Pan shop but from another place called Bengali Sweet House which was some distance away. Finally, the Sessions Court concluded that none of the  eye- witnesses   knew   the   appellants   and   therefore    the Investigating  Officer ought to have held an  identification parade.   In  the  absence of the parade the  claim  of  the witnesses  that  they  could indentify  the  appellants  was difficult to test. The   High   Court  dismissed  the  last  ground   that   no identification parade was held by saying that the appellants did  not ask for an identification parade and therefore  the benefit  of  that  omission could not go  to  them.   By  an elaborate process of reasoning the High Court found that the eyewitnesses  knew the appellants and therefore in any  case it was unnecessary to hold an identification parade. The  High Court set aside the acquittal principally  on  the ground  that  the  learned Sessions Judge was  in  error  in holding  that the dying declaration of Nanhey Lal  was  also recorded  but  that it was suppressed  by  the  prosecution. According  to the High Court the finding that  Nanhey  Lal’s dying declaration was recorded "is not based on any  legally admissible  evidence but wholly on  inadmissible  evidence". The High Court was perhaps right in taking the view that the Sessions Court was wrong in holding that Nanhey Lal had made

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a dying declaration.  There is documentary evidence to  show that  though  at  one stage the  Investigating  Officer  had stated  in a remand application that the  dying  declaration was recorded, it was in fact not recorded.  But the judgment of  the  Sessions Court is not based on the  suppression  of Nanhey Lal’s dying declaration’ The Sessions Judge  examined the evidence of the eye-witnesses critically and came to the conclusion that it was unsafe to act on that evidence.   The High Court adverted merely to a part of the reasoning of the Sessions  Court  leaving  wholly  untouched  the  conclusion recorded  by  it  in  regard to the  evidence  of  the  eye- witnesses.  Being aware of the limitations or the powers  of a  revisional court the High Court perhaps did not  consider the   reasons  which  influenced  the  Sessions   Court   in discarding the evidence of the 748 eyewitnesses.  In doing so the High Court was right  because it  could not merely re-appreciate evidence in the  exercise of  its  revisional powers.  But the error  which  the  High Court  committed  is that in the first place it  blamed  the accused for not demanding an identification parade, secondly it held by examining a few aspects of the evidence that  the accused  were  previously  known to  the  eye-witnesses  and thirdly  it  assumed  wrongly that  the  conclusion  of  the Sessions Court that Nanhey Lal had made a dying  declaration was  based  on inadmissible evidence.   The  Sessions  Court considered  the  various  circumstances  and  came  to   the conclusion  that  Nanhey Lal had made a  dying  declaration. That conclusion may be wrong but that cannot justify setting aside the order of acquittal and directing a re-trial of the appellants.   The  dominant justification of  the  order  of acquittal recorded by the Sessions Court is the view it took of  the evidence of the eyewitnesses.  If that evidence  was unacceptable,  there were- no circumstances in the  case  on which the appellants could be convicted. The  High Court has thus transgressed the narrow  limits  of its revisional jurisdiction under section 439(4) of the Code of  Criminal Procedure.  The judgment of the Sessions  Court did  not  suffer  from  any  manifest  illegality  and   the interests  of  justice  did not require the  High  Court  to interfere  with  the  order  of  acquittal  passed  by   the Sessions, Court.  Any fair assessment of the evidence of the eye-witnesses   would  show  that  the  acquittal   of   the appellants led to no miscarriage of justice. We therefore allow the appeal, set aside the judgment of the High Court and confirm the order of acquittal passed by  the Sessions Court in favour of the appellants V.M.K.                       Appeal allowed. 749