In Re: Public Prosecutor Panaji, Goa. And Shri Ganesh Bhaskar, H. No. 13/01, Gawali Bhat, Chimbel, Goa

R.M. Savant, J.—This Court, (N.A. Britto, J.), had issued a notice for Suo Motu Revision in respect of the Judgment and Order dated 14.09.2008, in Criminal Appeal no. 48/2008 passed by the learned Asst. Sessions Judge, Panaji. This Court was of the view that the correctness and legality or propriety of that Judgment is required to be tested under Sections 397/401 of Cr. P. C. as this Court was of the prima facie view that there is perversity in appreciating the prosecution evidence by the learned Trial Court particularly that of Pw8/Deepak Roy, who was the injured in the accident. The Respondent no.2-Accused was charged, tried and convicted under Sections 279, 304A, I.P.C. and Section 134B read with Section 177 of the Motor Vehicles Act, by the learned J.M.F.C., Bicholim. In Appeal, the Accused has been acquitted by the learned Asst. Sessions Judge, Panaji, by Judgment and Order dated 14.09.2009, in respect of which, a notice in Suo Motu Revision, came to be issued.

On behalf of the Respondent no.2, the learned Counsel Shri Teles, has drawn my attention to the Judgment of the Apex Court reported in 1963 (1) Cri. L. J. 8, in the matter of K. Chinnaswamy Reddy vs. State of Andhra Pradesh and anr., where the issue of the revisional powers of the High Court u/s 439 of the Cr. P. C., 1898 was in contention. Para 7 of the said report is material and is re-produced herein under:

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 been a flagrant miscarriage of justice. Sub-section (4) of S. 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 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 our 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 direction in view of the provisions of S. 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.

What is relevant for the present purposes is sub-section (3) of Section 401 of the Cr. P. C., 1973, which is reproduced herein below:

(1) ...

(2) ...

(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.

The learned Counsel, Shri Teles, has also drawn my attention to the Judgment of the Division Bench of this Court reported in 2000 Cri. L. J. 1566, in the matter of Tulshiram Bhanudas Kambale & Ors. vs. State of Maharashtra & Ors. In the said case, the revisional powers of the High Court u/s 401 of the Cr. P. C., 1973, were directly in contention. Considering the legal embargo postulated u/s 401(3) of the Cr. P.C., the Division Bench in paragraph 10 has observed as follows :

The case was committed to the Court of Sessions in the usual manner where the appellants and the acquitted accused were charged for offences punishable under Sections 147, 148, 302, 323, 324 r/w 149, I.P.C. etc. to which they pleaded not guilty and claimed to be tried.

During the trial in all the prosecution examined 20 witnesses, five of them namely Rajabhau Kamble, Dattratraya Kamble, Bhaskar Bhinge, Mehesh Bhinge and Suresh Sobaje Pws. 7, 8, 11, 12 and 13 respectively were examined as eye witnesses.

The defence of the appellants was denied. In defence 3 witnesses namely Ram Shinde, Dr. Shivanand Hipparagi and Sharan Basappa Tarapure Dws. 1, 2 and 3 respectively were examined.

It is significant to point out that the acquitted co-accused Laxman Shirsat alias Paparkar pleaded alibi. His defence was that on 18-2-1995, he came to Government General Hospital, Afzalpur, where he was admitted the same day and was discharged on the next day i.e. on 19-2-1995 at 6 p.m. To prove his plea of alibi Laxman Shirsat alias Paparkar examined Dr. Shivanand Hippargi DW 2, who at the said time was posted as medical officer, Government General Hospital, Afzalpur. Dr. Hippargi mentioned about the said facts in his deposition. He also stated in paragraph 3 of his statement that Afzalpur was situated at a distance of 180 kilometers from Pandharpur where the incident took place.

Since the incident took place between 7.30 to 7.40 pm. on 19-2-1995, the learned Trial Judge rightly accepted the plea of alibi because if Laxman Shirsat alias Paparkar was discharged at 6 pm. on 19-2-1995 he could to have participated in the incident at Pandharpur situated 180 kilometers away about 1 1/2 hours later, the same day.

It is significant to point out that prosecution had declined to decline to cross-examine Dr. Shivanand Hippargi and his evidence has gone unchallenged.

It is also pertinent to mention that the learned Judge accepted the plea of denial of accused Walchand Shah, Manikchand alias Babu Shah and Balu Kamble.

It is significant to point out that the State of Maharashtra has not impugned the acquittal of the said persons by preferring an appeal u/s 378 of Cr. P.C. but be that as it may we cannot refrain ourselves from observing that the reason given by the learned trial Judge for acquitting Walchand Shah and Manikchand alias Babu Shah namely in the absence of recoveries there was no evidence against them was erroneous. There were other reasons which justified their acquittal but they have not been mentioned by the learned trial Judge.

We would like to make it clear that in the absence of an appeal against acquittal and the stipulation of a specific embargo in Section 401(3), Cr. P.C. which prohibits the High Court from converting a finding a acquittal into one of conviction. The High Court even in a case where it feels that the acquittal is perverse, cannot convert a finding of acquittal into one of conviction, by suo motu exercising its revisional power. (Emphasis supplied)

The learned trial Judge, however, believed the prosecution evidence vis a vis the appellants and convicted and sentenced them in the manner stated in paragraph 2.

In view of the Judgment cited (supra), in my view, this Court, in exercise of Suo Motu powers, cannot reverse the finding of acquittal into one of conviction even when it feels that the finding of acquittal is perverse. The notice for Suo Motu Revision is, therefore, discharged.