Abdul Sobur Ali Khan and Others vs Md. Ibrahim Sheikh and Another

T.C. Das, J.—In this revision petition a substantial as well as a very pertinent question of law has been raised by the Petitioner relating to the power and jurisdiction of the Sessions Judge to exercise the revisional jurisdiction while acting u/s 399, Sub-section (1) of the Code of Criminal Procedure in dealing with an application against the order of acquittal preferred by a private complainant.

I have heard Mr. H.N. Sarma, learned Counsel for the Petitioner as well as Mr. G. Sarma, learned public prosecutor for the State. No one appears to represent the opposite party complainant.

Put briefly the facts are these:

That a complaint was lodged in the shape of first Information Report by one Ibrahim Seikh against all the 5 Petitioners for causing a criminal trespass and assault along with intimidation to the complainant. The occurrence took place on 4.9.77. The complainant stated in the F.I.R. that he was assaulted by all the 5 Petitioners and was treated by a doctor. The police investigated the matter and after investigation, submitted charge-sheet against all the 5 Petitioners u/s 447/323/506/34 of the Indian Penal Code. The learned Magistrate, 1st Class Kokrajhar, before whom the case was numbered as C.R. Case No. 821 of 1977, caused all the Petitioners to be produced to face the trial. In course of trial the prosecution examined as many as 7 witnesses. The defense did not examine any witness. The learned Magistrate scanned the evidence of record but he disbelieved the evidence of doctor as to the cause or injuries on the complainant. According to the learned Magistrate, the evidence of doctor was of no help to the complainant who was examined 4 days after the alleged assault. The doctor found the injuries superficial caused within 24 hours of 8.9.77. The learned Magistrate also could not give any reliance to other witnesses. As the prosecution failed to prove the case against the Petitioners beyond shadow of doubt, the learned Magistrate acquitted all the accused persons and set them at liberty. The state did not prefer any appeal against acquittal for obvious reasons. However, the complainant was not happy and therefore, with a view to test the legality of the judgment of the learned Trial Court, preferred a revision application u/s 399 of the Code of Criminal Procedure before the learned Sessions Judge, Goalpara at Dhubri challenging the order of acquittal. The Learned Sessions Judge on reassessment of the evidence on record did not agree with the order of acquittal passed by the learned Magistrate. The learned Sessions Judge, in exercising the power of its revisional jurisdiction felt that the case requires to be retried on fresh appraisal of the evidence and therefore, remanded the case to the learned Magistrate by setting aside the order of acquittal with a direction to reconsider the materials on record and on hearing, the fresh argument, if the party desires, and to write a fresh judgment in the case.

The present Petitioners being aggrieved by the order of the learned Sessions Judge passed on 23.1.80 in setting aside the order of acquittal, have moved this application challenging the legality of the order of the learned Sessions Judge.

At this stage, it would be proper and convenient to consider the relevant provisions relating to the revisional jurisdiction of the High Court as well as of the Sessions Judge while exercising the power u/s 401 Code of Criminal Procedure as well as 399 Code of Criminal Procedure. The provision of Code of Criminal Procedure speaks itself about such exercise of powers by the learned Sessions Judge u/s 399 Code of Criminal Procedure. This is a case where a revision application was preferred against the order of acquittal by a private party (complainant). It is a settled law that the revisional jurisdiction conferred upon the High Court in entertaining the Revision against order of acquittal is not to be exercised lightly more so when it is invoked by a private complainant against an order or acquittal against which the State Government has a right of appeal u/s 378 of Code of Criminal Procedure. It can however be exercised where the interest of public justice requires to do so either for correction of grave procedural mistake affecting the entire trial or in a case for correction of manifest illegality and to prevent miscarriage of justice. This revisional jurisdiction should ordinarily be not invoked or used as because in its opinion the Trial Court has taken a wrong view of the law or misappreciated the evidence on record. This is what exactly laid down by their Lordships of the Supreme Count in D. Stephens Vs. Nosibolla,

I have gone through the impugned judgment and order of the learned Sessions Judge very carefully and I have heard the learned Counsel of the parties at length. Mr. G. Sarma, learned Public Prosecutor has very fairly submitted that the revisional jurisdiction must be exercised cautiously and also according to the mandate of their Lordship of the Supreme Court which are found in a catena of cases so far reported. According to the learned Public Prosecutor, the revisional jurisdiction in such nature of cases may be exercised only by this Court if the Court finds that the Trial Court has committed a grave procedural illegality and it effects a miscarriage of justice in rendering the order thereby affecting the interest of the public or society at large. Mr. H. Sarma, the learned Counsel for the Petitioners has submitted that the present case has nothing to do with any cause of public interest nor it has caused any miscarriage of justice in passing the order of acquittal by the learned Trial Court. The learned Counsel has further submitted that the revisional court has no jurisdiction to reassess the evidence and to find fault in appreciating the evidence by the learned Trial Court. The learned Sessions Judge had completely erred in law to entertain the Revision application and to remand the case for rehearing after setting aside the order of acquittal. The last submission of Mr. Sarma is that the learned Sessions Judge in exercising the revisional jurisdiction has usurped the power of the appellate court and as such the impugned judgment is liable to be set aside. In course of his submission Mr. H. Sarma has drawn my attention to the several decisions of the Supreme Court. In Amar Chand Agarwalla Vs. Shanti Bose and Another, etc., their Lordships of the Supreme Court had observed that the revisional jurisdiction conferred u/s 439 (old), now being Section 399/401 Code of Criminal Procedure is only to be exercised in exceptional cases where there is a glaring defect in the procedure or there is a manifest error on point of law and consequently there has been a flagrant miscarriage of justice. Reliance is sought to be placed on another decision of the Supreme Court as reported in Khetrabasi Samual etc. Vs. The State of Orissa, It was held by their Lordships of the Supreme Court that the revisional jurisdiction should be exercised by the High Court in exceptional cases. However, it is not possible to lay down the criteria for determining such exceptional cases which will cover all contingencies. However, some cases will justify the High Court in interfering with a finding of acquittal in revision where the Trial Court has no jurisdiction to try the case but acquitted the accused or the Trial Court had wrongly shut out the evidence which the prosecution wished to produce or where the Trial Court admitted inadmissible evidence on which the order of acquittal was based. Akalu Ahir and Others Vs. Ramdeo Ram, it was held by the Supreme Court that in revision against acquittal by a private complainant, the High Court cannot reappraise the evidence for itself, as if it is acting as a court of appeal and then order a re-trial. Normally, retrial should not be ordered unless there is some infirmity rendering the trial defective. The reason is that the expression of opinion by the High Court on the evidence before it with respect to the commission of alleged offence through not binding on the Court, holding fresh trial, may nevertheless leave an unconscious impression on the Court holding such trial. It was further held that the High Court when approached by a private party for exercising its power of revision from an order of acquittal, should appropriately refrain from interfering except when there is a glaring legal defect of serious nature which has resulted in grave failure of justice. In paragraph 8, their Lordships observed:

The unrestricted right of appeal from acquittal is specifically conferred only on the State and a private complainant is given this right only when the criminal prosecution was instituted on his complaint and then also subject to special leave by the High Court. It is further provided in Section 439(5), Code of Criminal Procedure, that where no appeal is brought in a case in which an appeal is provided, no proceedings by way of revision would be entertained at the instance of the party who could have appealed. The State Government, therefore, having failed to appeal, cannot apply for revision of an order of acquittal. Again, on revision, the High Court is expressly prohibited from converting an acquittal into a conviction....

Now let me deal with the core question that has been raised by tire learned Counsel for the Petitioners with regard to the revisional power of the Sessions Judge and as to whether the Sessions Judge could exercise its revisional jurisdiction u/s 399 of Code of Criminal Procedure in a case where a private complainant moves that court against an order of acquittal.

Section 399 Code of Criminal Procedure gives the power to the Sessions Judges to call for the record of a proceeding and to exercise all or any of the powers which may be exercised by the High Court under Sub-section (1) of Section 401, Code of Criminal Procedure. This section is new. The Law Commission in its 40th report recommended that the Sessions Judge "be vested with powers to pass final orders in revision in all matters other than Petitioners'' against order of acquittal and for enhancement of sentence''''. In its 41st report the Commission also expressed the similar views and the Joint Select Committee changed the clauses so as to incorporate the power of the Sessions Judge to finally dispose of all revisional cases except the case of enhancement of sentence and cases against orders of acquittal.

The power exclusively vests to the High Court as because the appeal against acquittal only lies to the High Court. As alluded above, the revisional jurisdiction conferred on the High Court u/s 401 Code of Criminal Procedure is not to be lightly exercised when it is invoked by a private complaint against an order of acquittal whew the Govt. has a right of appeal u/s 378 Code of Criminal Procedure but did not prefer it. But there are exceptional cases, namely,

(a) The Trial Court having no jurisdiction has acquitted the accused.

(b) It has wrongly shut out the evidence of the prosecution.

(c) The Appellate Court has wrongly held the evidence admitted by the Trial Court as inadmissible.

(d) The material evidence has been overlooked either by Trial Court or the Court of appeal.

and

(e) The acquittal is based on compounding of the offence not valid under the law.

(See Khetrabasi Samual etc. Vs. The State of Orissa,

Therefore, the power u/s 399(1) Code of Criminal Procedure can not by exercised by the learned Sessions Judge in a manner as exercised by the Appellate Court. The provisions for appeal against acquittal has been conferred by the Code and the forum is only the High Court. Consequently, the revision application against the order of acquittal by a private complainant can only be entertained by the High Court and not by any subordinate Court. The learned Sessions Judge, therefore, was wrong in entertaining the revision petition against the order of acquittal preferred by a private complainant as it had no jurisdiction in that regard.

In the light of the decisions referred to above and on perusal of the impugned judgment of the learned Court below I find that the impugned judgment must be set aside being without jurisdiction. Mr. G. Sarma, learned Public Prosecutor lends support to the above proposition of law.

For the reasons set forth above, I allow this revision application and set aside the impugned judgment of the learned Sessions Judge dated 23.1.80 rendered in Criminal Motion No. 9(2) of 1979 in setting aside the order of acquittal passed by the learned Trial Court. Consequently, the judgment and order passed by the learned Trial Court in acquiring the accused is maintained.