Mst. Kauli vs Aflatoon

Gurnam Singh, J.—Aflatoon, respondent, was tried by Magistrate, 1st Class, Patiala, u/s 452, I.P.C., and was sentenced to one year''s R.I. On appeal, the Sessions Judge get aside his conviction and sentence. Shrimati Kauli, the complainant in the case came up in revision against the order of acquittal with a prayer that the order of acquittal be set aside and the appeal be sent back for rehearing.

The revision petition came up for hearing before Hon''ble the Chief Justice. The main ground urged before him appears to be that out of the five reasons given by the learned Sessions Judge for acquitting the accused two were not based on facts and were thus not supported by evidence. Mr. Nehra who appeared for the respondent contended that the mere fact that some of the reasons given by the Sessions Judge for not relying on the prosecution witnesses were erroneous could not justify setting aside the order of acquittal. In support of his contention he cited a Supreme Court judgment - Logendra Nath Jha and Others Vs. Shri Polailal Biswas, On hearing both the counsel My Lord the Chief Justice considering the importance of the question referred the case to a Division Bench.

Mr. Nehra, learned Counsel for the respondent raised an objection that a private complainant could not be heard in a revision petition in absence of an appeal by the State u/s 417, Code of Criminal Procedure He further urged that the High Court in a revision petition by a private party against an order of acquittal could only interfere on a point of law. The contention of the learned Counsel for the Petitioner was that the powers of the High Court on a revision petition by a private complainant against an order of acquittal were exactly the same as the powers in a court of appeal. The arguments of both the counsel centered round these two points. It is proper and right here to quote Section 439 of the Code of Criminal Procedure. It reads as follows:

(1) In the case of any proceeding the record of which has, been called for by itself or which has been reported for orders, Or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise-any of the powers conferred on a court of appeal by Sections 423, 426, 427 and 428 or on a court by Section 338, and may enhance the sentence

Nothing in this section applies to an entry made u/s 273, or shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction

Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.

The powers of the appellate court in appeals are given in Section 423 of the Code of Criminal Procedure Section 423, Code of Criminal Procedure reads as follows:

423(1) The appellate court shall then send for the record of the case, if such record, is not already in Court. After perusing such record, as hearing the Appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and, in case of an appeal u/s 411A, Sub-section (2) or Section 417, the accused, if he appears, the court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may -

(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;

(b) in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such appellate court or committed for trial, or (2) alter the finding, maintaining the sentence, or with or without altering the finding, reduce the sentence, or (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence, but, subject to the provisions of Section 106, Sub-section (3), not So as to enhance the same.

Section 426 deals with the suspension of sentence pending appeal and releasing of the Appellant on bail, Section 427 deals with an arrest of the accused person in an appeal from an order of acquittal and Section 428 deals with the power of the appellate court for recording additional evidence.

S. Ujagar Singh, learned Counsel for the Petitioner urged that Section 439, Code of Criminal Procedure read with Section 423 of the Code gives complete powers to the High Court to set aside the order of acquittal even on facts and order retrial. Learned Counsel for the respondent in controverting this contention cited the judgment of the Supreme Court already referred to. This judgment deals with a somewhat similar case as the present one. In this case the accused person was acquitted by the trial court during a Sessions trial, and in a revision petition by the complainant in the High Court the order of acquittal was set aside and retrial ordered. The learned Judge after reviewing the evidence came to the conclusion that the acquittal, of the accused was perverse. During the course of the'' judgment, however, the learned Judge of, the High Court observed:

I would, however, make it perfectly clear that when the case is retried, which I am going to order, the judge proceeding with the trial will not be in the least influenced by any expression of opinion which I may have given in this judgment.

The accused then went up to the Supreme Court for special leave to appeal which was granted, and later the appear was heard. During the course of judgment their Lordships of the Supreme Court observed:

We are of opinion that the learned Judge in the High Court did not properly appreciate the scope of inquiry in revision against an order of acquittal. Though Sub-section (1) of Section 439 authorises, the High Court, to exercise, in its discretion, any of the powers conferred on a court of appeal by Section 423, Sub-section (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 could in the absence of any error on a point of law re-appraise the evidence and reverse the findings of facts on which the acquittal was based, provided only it stopped short of finding the accused guilty and passing sentence on him. By merely characterizing the judgment of the trial court as ''perverse'' and ''lacking in perspective'', the High Court cannot reverse pure findings of fact based on the trial court''s appreciation of the evidence in the case. That is what the learned; Judge in the Court below has done, but could not, in our opinion, properly do on an. application in revision filed by a private party against acquittal. No doubt, the learned Judge formally complied with Sub-section (4) by directing only a re-trial of the Appellants without convicting them, and warned that the court re-trying the case should not be influenced by any expression of, opinion contained in his judgment. But there can be little doubt that he loaded the dice against the Appellants, 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.

We are of opinion that the learned Judge in the High Court exceeded his powers of revision in dealing with the case in the man ner he did, and we set aside his order, for retrial of the Appellants and restore the order of acquittal passed by the Sessions Judge.

Mr. Ujagar Singh, learned Counsel for the Petitioner has urged that the powers of the High Court mentioned in Section 439, Cr.P.C, are not limited. The section itself does not justify any such limitation. According to him Section 489 Cr.P.C, gives the same power to the High Court as are given by Sections 423, 426, 427 and 428 of the Code of Criminal Procedure Section 423(1)(a) explicitly gives power to the High Court in an appeal from an order of acquittal to reverse such order and direct that further inquiry be mads or that the accused be retried. According to Sub-section (4) of Section 439, Criminal P.C., the High Court, no doubt is precluded from converting the acquittal into conviction. His argument is that Section 439 read with Section 423 gives complete powers to the High Court to order retrial of rehearing of appeal. He further urges that these sections nowhere limit the powers of the High Court to question of law only. The High Court, according to his contention, is competent to re-appraise the evidence and reverse the finding of fact on which the acquittal-was based. He also urges that there is no bar for the High Court to make such an order on a revision petition by a private complainant in absence of an appeal by the State.

It is true that no such limitations are prescribed by the relevant sections on the powers of the High Court. His argument regarding a revision petition by a private complainant, no doubt, finds strength in Sub-section (5) of Section 439, Code of Criminal Procedure This sub-section bars a revision petition by a person who could go in appeal but did not file an appeal. I would illustrate this point by quoting Section 417 of the Code of Criminal Procedure Under that section the State is competent to file an appeal through the Public Prosecutor from an original or appellate order of acquittal passed by any court other than the High Court. Supposing the State chooses not to appeal against such an order of acquittal. According to Sub-section (5) the State is shut out from going in revision against such an order. But no such incapacity attaches to a complainant going in revision as he is not competent to file an appeal against order of acquittal. This question also arose before their Lordships of the Supreme Court in the case cited above, but the point was left undecided. In my opinion the argument of Mr. Ujagar Singh should prevail. There is over-whelming authority of various High Courts in support of this contention. A private complainant, according to this subsection, therefore, is quite competent to go up in revision against an order of acquittal.

The next question is regarding the powers of the High Court in such a revision petition. It is true that Section 439, Code of Criminal Procedure, does not put any limits on such powers. Mr. Ujagar Singh argues that if the, High Court was competent to consider the case on a point of law alone and could not re-appraise the evidence in giving its finding Section 439 would be negatived. According to him whether the High Court interferes on facts or on a point of law the effect on the mind of the Subordinate courts would be the same. Apart from this, it does not put any limits on the powers of the High Court. He cited - ''Partap Singh v. Harnam Singh Mangal Singh'' AIR 1942 Lah 70 where this question had arisen. The Full Bench of the Lahore High Court observed :

The powers of the High Court on a revision petition by a private complainant from an order of acquittal are exactly the same as the powers in a Court of appeal conferred by Sections 423, 426, 427, 428 or Section 338. Under Clause (4) of Section 439, the High Court cannot convert a finding of acquittal into one of conviction, but it can under the powers conferred u/s 423 order the accused to be retried by a court of competent jurisdiction subordinate to such appellate court. In considering the question whether such a retrial should or should not be ordered, the discretion of the court is legally unlimited. In actual fact, however, the court seldom exercises this discretion except that an order of acquittal will not as a rule be interfered with merely because the High Court disagrees with the finding of the Magistrate. It is only when the record is incomplete or there is a flaw in jurisdiction or where the finding is manifestly wrong or perverse that the High Court will interfere in such cases. Where the evidence has been misstated by the trial judge it is much the same position as if the Judge, who combines the functions of a Judge and ijury, had misdirected himself as to what the evidence was in the particular case. It will be open for the High Court, however, to consider whether in spite, of the misdirection, any finding other than one of acquittal would have been come to in the circumstances of the particular case and the High Court would not order a retrial unless it came clearly to the conclusion that but for the misdirection the court might have or should have come to a different finding to what it actually did.

It appears from the judgment of their Lord-ships of the Supreme Court that this authority was not cited before them. There is no doubt that there are large number of authorities of various High Courts in this country which support this view.

With utmost respect, I am in complete agreement with the observation made by the learned Judges of the Lahore High Court. The point directly involved in the case before us was considered by the Full Bench in the Lahore case. The learned judges came to the conclusion that the discretion of the court was legally unlimited. But the court seldom exercises the discretion unless it considered that the record was incomplete or there was flaw in jurisdiction or where the findings of the court below were manifestly wrong or perverse. The finding of the learned judges therefore is that the High Court may sparingly exercise this jurisdiction. The view expressed in this Full Bench case for practical purposes is almost identical with the one which found favour with their Lordships of the Supreme Court. If I may say so with great respect, the authority of the Supreme Court cited above is a safe guide to follow and is indeed binding upon us. Each case however depends on its own particular facts. Where there is a failure of justice it is the duty of the High Court to interfere for the purpose of preventing an abuse of, the provisions of law. The High Court therefore will exercise its discretion in each case as justice demands. Any attempt to provide definite rule for the exercise of this power by the High Court would be futile. It is, however, necessary to recognise certain principle of interference. Keeping this in view the various ''High Courts have accepted the principle that ordinarily a finding of fact or an order of acquittal is not interfered with in revision in Spite of the jurisdiction given to the court.

This jurisdiction should not be lightly exercised specially when invoked by a private complainant. It should be exercised only in exceptional cases in order to correct a manifest illegality or to prevent a gross miscarriage of justice. Merely because the lower court has misappreciated the evidence on the record does not ordinarily justify interference by the High Court. In the light of these observations, I will now consider the case before us.

The learned Sessions Judge has based acquittal of the accused by giving certain reasons which are not wholly supported by facts on the file. It is conceded by Mr. Nehra, the learned Counsel for the respondent, that at least two of the reasons given by the learned Sessions Judge for discarding the prosecution evidence were not, supported by the facts, on the record. The facts of this case are there fore clearly distinguishable from those before their Lordships of the Supreme Court in the authority cited, above. This point was neither argued nor it was involved in that case. It was, however, considered in Lahore Full Bench case. In this particular case, I have no doubt in my mind that we have the power to set aside the order of acquittal in, question if we find that it was based on purely conjectural grounds unsupported by the evidence on the record. In such a case, it is clear that the appellate court did not direct its mind to the, evidence on the record. It is also true that this power is to be exercised only in exceptional cases and with caution but where the Sessions Judge has not exercised a proper judicial mind and has come to a decision without a proper review of the evidence causing failure of justice I am of the view that the order of acquittal must be set aside and rehearing of the appeal ordered. But, on the other hand, if in spite of such misreading of the evidence no other finding except that of acquittal could be given the court should not interfere with the order of acquittal. In the case before us I am clearly of the opinion that even if we eliminate the two reasons given by the Sessions Judge which are not supported by evidence there are other good grounds for maintaining his order of acquittal. On the examination of the evidence of the eye-witnesses, I am of the opinion that the learned Sessions Judge has arrived at a correct finding though on different grounds in acquitting the accused.

10-11.(His Lordship considered the evidence and examined the order of acquittal and proceeded :) In spite of the fact that two of the reasons given by the Sessions Judge for acquitting the accused were not supported by facts on the record, but there are in my opinion other grounds in favour of order of acquittal. The learned Sessions Judge also took into consideration few of those reasons for his coming to this conclusion. The order of acquittal, therefore, passed by the learned Sessions Judge is neither perverse nor foolish, and does not need any interference. The revision petition is, therefore, dismissed.

Teja Singh, C.J.

I agree in the order proposed. As regards the question whether it was within the powers of the High Court to set aside an order of acquittal based merely on appreciation of evidence on a revision petition by a private person and to send back the case for retrial or rehearing I had to deal with it in - ''Sobha Ram v. Kashmiri Lal'' AIR 1953 Pep 155 . In that case I referred to the decision of their Lordships of the Supreme Court in Logendra Nath Jha and Others Vs. Shri Polailal Biswas, and following that decision held that when a person is acquitted by a trial or a lower appellate Court on the ground that the witnesses produced by the prosecution were not reliable or the prosecution evidence was not sufficient for conviction, to set aside the order of acquittal on the ground that the view taken by the acquitting Court as regards the reliability and sufficiency of evidence was wrong it is tantamount to laying down that the accused should be convicted and such a course violates against the provisions of Section 439, Cr.P.Code. Mr. Ujagar Singh, counsel for the Petitioner, urged that the effect of this decision would be that the powers that Section 439 gives to High Court to interfere with orders of subordinate criminal Courts in all cases would be considerably curtailed and the result would be that in no case the fate of which depends upon evidence, the High Court would be able to set aside an order of acquittal and send back the case for rehearing or retrial even though the view of the lower Court be altogether perverse or untenable. It is un-necessary to consider how far this contention is well-founded, because we are bound by the decision of the Supreme Court.