Banke Bihari vs Prabhu Dayal and Others

Kanwaljit Singh Ahluwalia, J.—Case FIR No. 436 dated 20.9.1997 was registered under Sections 148, 149, 447, 379 IPC against the accused-respondents at instance of the petitioner at Police Station Sadar Rewari.

The accused-respondents were acquitted by the trial court for the offence u/s 379 IPC. However, they were held guilty for the offence under Sections 148, 149, 447 IPC. All the accused respondents were convicted to 3 months RI u/s 147 IPC and 447 and 149 IPC. The court also awarded a fine and specified the default clause.

Aggrieved against the same, accused, respondents had filed an appeal. Appeal was decided by the Court of Additional Sessions Judge, Rewari and had acquitted the accused respondents. The petitioner has filed the present revision petition against the acquittal of accused, respondents Admittedly, State have opted not to file any appeal against the acquittal and leave to appeal against the acquittal of the accused, respondents. Trial Court after examining the evidence, had returned the finding that the complainant party was in possession of the land. This finding has not been disturbed by the appellate Court but appellate Court taking into consideration the evidence of PW-1, SI Magan Singh, PW-2, Banke Bihari, PW3, Biju, PW-4, Sher Singh, PW-5, Inspector Ram Niwas and PW6, Ram Niwas, came to conclusion that petitioners have not committed the offence of tress passing. Revisional court cannot re-appreciate the evidence. The finding of appellate Court below is based upon appreciation of the evidence. The view formulated by the court is one view which is possible, it suffers from no patent illegality or irregularity of infirmity. Occurrence in the present case took place in the year 1993. 24 years are going to elapse. Revisional court can only remand the case for fresh decision. This Court cannot loose sight of the fact that accused were convicted in the year 2004 for three months rigorous imprisonment.

It was held in Mahendra Pratap Singh Vs. Sarju Singh and Another, relying upon D. Stephens Vs. Nosibolla, , as under:

only two grounds are mentioned by this Court as entitling the High Court to set aside an acquittal in a revision and to order a retrial. They 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 mis-appreciation of evidence. Again, in Logendra Nath Jha and Others Vs. Shri Polailal Biswas, , this Court points out that the High Court is entitled in revision to set aside an 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 re-weigh the evidence ignoring the opinion of the High Court. Again in K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, , 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 re-weighed 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.

In Akalu Ahir and Others Vs. Ramdeo Ram, , Hon''ble apex Court observed as under:

This Court then proceeded to observe that the High Court is certainly entitled in revision to set aside the order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal, but it was emphasized that this jurisdiction should be exercised 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 been a flagrant miscarriage of justice." In face of prohibition in Section 439(4), Cr.P.C., for the High Court to convert a finding of acquittal into one of conviction, it makes 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 re-trial. No doubt, in the opinion of this Court, no criteria for determining such exceptional cases which would cover all contingencies for attracting the High Court''s power of ordering re-trial can be laid down. This Court, however, by way of illustration, indicated the following categories of cases which would justify the High Court in interfering with a finding of acquittal in revision:

(i) Where the trial Court has no jurisdiction to try the case, but has still acquitted the accused;

(ii) Where the trial Court has wrongly shut out evidence which the prosecution wished to produce;

(iii) Where the appellate Court has wrongly held the evidence which was admitted by the trial Court to be inadmissible;

(iv) Where the material evidence has been over-looked only (either?) by the trial Court or by the appellate Court; and

(v) Where the acquittal is based on the compounding of the offence which is invalid under the law.

These categories were, however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of acquittal. In Mahendra Pratap Singh Vs. Sarju Singh and Another, the position was again reviewed and the rule laid down in the three earlier cases reaffirmed. In that case the reading of the judgment of the High Court made it plain that it had re-weighed the evidence from its own point of view and reached inferences contrary to those of the Sessions Judge on almost every point. This Court pointed out that it was not the duty of the High Court to do so while dealing with an acquittal on revision, when the Government had not chosen to file an appeal against it. "In other words" said this Court, "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."

Similar view was reiterated by Hon''ble apex Court in Bansi Lal and Others Vs. Laxman Singh, . Again, Hon''ble apex Court, in Ramu alias Ram Kumar and Ors. 1995 Scc (Cri) 181, held that it is well settled that the revisional jurisdiction conferred on the High Court should not be lightly exercised particularly when it has been invoked by a private complainant. In Vimal Singh v. Khuman Singh and Anr. (1998) Scc 1574 and in Bindeshwari Prasad Singh v. State of Bihar 2002 AIR (SC) 2907, the High Court has been reminded of its very limited jurisdiction in revision against acquittal.

It is well settled that unless any legal infirmity in the procedure or in the conduct of trial or patent illegality is pointed out, the revisional Court will not interfere.

I find no merit in the instant revision petition to interfere while exercising revisional jurisdiction as learned Counsel for petitioner has failed to point out any illegality or irregularity.

There is no merit. Present revision petition is dismissed.