State of Maharashtra
Vs. Sujay Mangesh Poyarelar  INSC 1603 (19 September 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1492 OF 2008
ARISING OUT OF SPECIAL LEAVE PETITION (CRL) NO. 7251 OF 2007 STATE OF
MAHARASHTRA ... APPELLANT VERSUS
C.K. THAKKER, J.
present appeal is filed against the order passed by the High Court of
Judicature at Bombay on June 12, 2007 in Criminal Application No. 1390 of 2007.
By the said order, the High Court refused to grant leave to appeal to the State
against an order of acquittal recorded by III Ad hoc Addl. Sessions Judge,
Palghar on January 16, 2007 in Sessions Case No. 148 of 2003.
facts of the case are that complainant-Rajan Mukund Patil is the resident of
Chinchani, Bhandar Ali, Taluka Dahanu, District Palghar, Maharashtra. He is a
practising advocate at Dahanu Court. According to the prosecution, on June 07,
2003, complainant had gone to Dahanu Court. In the evening, he went to Vangaon
by train and therefrom he was to go to his residence at Chinchani. For that
purpose, he went to Dahanu Railway Station at about 6.00 p.m. and boarded
Firozpur Janta Train. He reached Vangaon at 6.15 p.m. On platform No.2, he saw
Deepa Gajanan Patil who was going to Mumbai. The complainant was knowing her.
He, therefore, asked her as to where she was going. She told the complainant
that she had come to receive her father. Meanwhile, accused Sujay Mangesh
Poyarekar-respondent herein alighted from Virar-Surat shuttle. The accused came
near the 3 complainant and asked him why he was standing there and started
abusing him. The accused also alleged that the complainant was flirting with
his wife. So saying, the accused assaulted the complainant with knife in his
stomach, on right shoulder, below left armpit and on back-side.
received injuries. He immediately went to Station Master's cabin. In the
meanwhile, his sister Charushila and one Hitendra came there and took
complainant to the Vangaon Government Hospital. Later on, police went to the
hospital and recorded statement of the complainant.
the basis of the statement, initially C.R. No. 00 of 2003 was registered in
Vangaon Police Station. The said complaint was then forwarded to Palghar
Railway Police Station where C.R. No. I-9 of 2003 was registered at 23.00 hours
vide Station Diary No. 42 of 2003 for offences punishable under Sections 307
and 504 of the Indian Penal Code (IPC). The accused was arrested at about
23.45 4 hours and was released on bail on June 12, 2003. After usual
investigation and recording of statement of witnesses, charge-sheet was filed
in the Court of Judicial Magistrate, First Class, Railway, Virar.
the offence under Section 307, IPC was exclusively triable by a Court of
Session, the Judicial Magistrate, by an order dated November 27, 2003 committed
the case to Sessions Court, Palghar. It was registered as Sessions Case No. 148
of 2003. Necessary charge was framed against the accused who pleaded not guilty
to the charge and claimed to be tried.
prosecution in order to establish the case against the accused, examined 15
witnesses. It mainly relied upon testimony of PW1-Rajan (complainant and
victim) and PW2- Charushila (real sister of complainant).
PW12-Dr. D'Souza was recorded to prove injuries sustained by the victim. After
the prosecution evidence, statement of the accused was recorded under Section
313 of the 5 Code of Criminal Procedure, 1973 (hereinafter referred to as `the
Code') wherein he admitted his presence on the Railway platform on the date of
occurrence. He, however, denied to have committed any offence.
learned trial Judge, vide his judgment and order dated January 16, 2007,
acquitted the accused for the offences with which he was charged. According to
the learned Judge, the prosecution failed to establish the case against the
accused beyond reasonable doubt.
State, being aggrieved by the order of acquittal, filed an application, being
Criminal Application No. 1390 of 2007 for leave to appeal in the High Court.
The High Court, vide the impugned order dated June 12, 2007, rejected the
application observing that the judgment of the trial Court could not be said to
be `perverse' and no interference was called for. The State has challenged the
said order in this Court.
November 23, 2007 when the Special Leave Petition was placed for admission
hearing, notice was issued. It was indicated in the order that the notice will
state as to why Special Leave Petition should not be disposed of by setting
aside the order passed by the High Court and by remitting the matter to the High
Court to be decided in accordance with law. Service of notice had been effected
on the accused who appeared through counsel. An affidavit in reply is also
filed justifying the order passed by the High Court refusing leave.
have heard learned counsel for the parties.
learned counsel for the State contended that the High Court has committed an
error of law in not granting leave to the State to file an appeal against the
order of acquittal recorded by the Sessions Court. The counsel submitted that
from the material placed before the Court, it is clearly established that
PW1-Rajan sustained injuries which were 7 proved from the evidence of Dr.
PW1-Rajan, injuries had been caused by the accused. PW2-Charushila real sister
of complainant had corroborated the version of PW1-Rajan. The High Court ought
to have appreciated the prosecution evidence, ought to have granted leave and
decided the appeal on merits.
was also submitted that from the record, it was clearly proved that there was
enmity between the parties. It was the allegation of the accused that PW1-Rajan
was harassing Deepa. It has also come in evidence that on the date of incident
i.e. on June 7, 2003, the complainant was assaulted. Initially, he went to
cabin of the Station Master, Dahanu Railway Station where a report was lodged
which was subsequently sent to Palghar Railway Police Station where a case was
registered for offences punishable under Sections 307 and 504, IPC. The accused
was admittedly present at the Railway Station. The High Court has not 8
considered all these facts. It has also not discussed evidence of PW1-Rajan nor
of PW2- Charushila. A sweeping statement was made in the order that the trial
Court had appreciated the evidence properly by taking into consideration
several complaints filed against the complainant who had tendered apology to
the President, Bar Association, Dahanu. An action was also taken by the Bar
Council. According to the High Court, the judgment of the trial Court could not
be said to be `perverse'. It accordingly dismissed the application. It was
submitted that keeping in view all these facts, the present appeal deserves to
be allowed by remitting the matter to the High Court for fresh disposal in
accordance with law.
learned counsel for the accused, on the other hand, supported the order passed
by the High Court. In the counter-affidavit, it was said that there was
suppression of fact by the State. It was stated that being aggrieved by the
order passed by the trial Court 9 acquitting the accused, the complainant
filed a revision which was registered as Criminal Revision Application No. 166
of 2007 and a Single Judge of the High Court, vide order dated July 18, 2006,
dismissed it. The State was joined as party. The Assistant Public Prosecutor
also appeared for the State and the High Court refused to interfere with the
The fact of filing
revision by the complainant and dismissal thereof has not been mentioned in the
present proceedings. On this ground alone, the appeal deserves to be dismissed.
on merits, the counsel submitted that no error can be said to have been
committed by the High Court in refusing leave and in dismissing application
filed by the State. The Trial Court considered the prosecution evidence in detail
and came to the conclusion that the prosecution was unable to prove case
against the accused beyond reasonable doubt and was, therefore, entitled to
acquittal. It was not necessary for the High 1 Court when it agreed with the
order of acquittal recorded by the trial Court to record reasons again for such
acquittal. It was, therefore, submitted that no case has been made out for
interference by this Court and the appeal deserves to be dismissed.
heard learned counsel for the parties, in our opinion, the appeal deserves to
far as the preliminary objection raised by the learned counsel for the accused
is concerned, we find no substance therein. The case in hand was instituted on
the basis of First Information Report. It was thus a Police case. De facto
complainant, therefore, has no right to file an appeal. He, therefore,
preferred a revision. Now it is well settled that revisional jurisdiction can
be exercised sparingly and only in exceptional cases. A revisional Court cannot
convert itself into a regular Court of Appeal.
the provisions of Section 439 of the Code of Criminal Procedure, 1898 (similar
to Section 401 of the present Code of 1973), in the leading case of Chinnaswamy
Reddy v. State of A.P., (1963) 3 SCR 412, this Court stated;
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 1 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 out evidence
which the prosecution wished of 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 directly in view of the provisions of s. 439(4).
of revisional Court are thus limited. Rejection of a revision application,
therefore, cannot affect the power of the State in invoking statutory remedy
available under Section 378 of the Code. The preliminary 1 objection has,
therefore, no force and is hereby rejected.
far as an application for leave to appeal by the State is concerned, the High
Court rejected it without considering the evidence of the prosecution. In the
impugned order, the High Court noted that it had heard the learned Assistant
Public Prosecutor. It went on to state that none of the injuries sustained by
the victim was `fatal'. According to the High Court, the cause behind the
assault was that the complainant-advocate was teasing the wife of the accused,
who was also working in the Court.
then proceeded to observe;
"The trial Court
has appreciated the evidence properly and has also taken into consideration the
number of complaints filed against the said advocate complainant including the
apology tendered by the complainant to the President, Bar Association, Dahanu
and the action taken by the Bar Council. The trial Court found inherent
improbabilities in the case of the complainant and therefore acquitted the
accused. The judgment of 1 the trial Court cannot be said to be perverse. No
interference is called for. Application rejected".
Section 378 of the Code provides for filing of appeal by the State in case of
acquittal. Sub-section (3) declares that no appeal "shall be entertained
except with the leave of the High Court". It is, therefore, necessary for
the State where it is aggrieved by an order of acquittal recorded by a Court of
Session to file an application for leave to appeal as required by sub-section
(3) of Section 378 of the Code. It is also true that an appeal can be
registered and heard on merits by the High Court only after the High Court
grants leave by allowing the application filed under sub-section (3) of Section
378 of the Code.
our opinion, however, in deciding the question whether requisite leave should
or should not be granted, the High Court must apply its mind, consider whether
prima facie 1 case has been made out or arguable points have been raised and
not whether the order of acquittal would or would not be set aside.
cannot be laid down as an abstract proposition of law of universal application
that each and every petition seeking leave to prefer an appeal against an order
of acquittal recorded by a trial Court must be allowed by the appellate Court
and every appeal must be admitted and decided on merits. But it also cannot be
overlooked that at that stage, the Court would not enter into minute details of
the prosecution evidence and refuse leave observing that the judgment of
acquittal recorded by the trial Court could not be said to be `perverse' and,
hence, no leave should be granted.
Sita Ram & Ors. v. State of Uttar Pradesh, (1979) 2 SCC 656, this Court
held that a single right of appeal is more or less a universal requirement of
the guarantee of life and liberty rooted in the concept that men are 1
fallible, judges are men and making assurance doubly sure, before irrevocable
deprivation of life or liberty comes to pass, a full-scale re- examination of
the facts and the law is made an integral part of fundamental fairness or
are aware and mindful that the above observations were made in connection with
an appeal at the instance of the accused. But the principle underlying the
above rule lies in the doctrine of human fallibility that `Men are fallible'
and `Judges are also men'. It is keeping in view the said object that the
principle has to be understood and applied.
every crime is considered as an offence against the Society as a whole and not
only against an individual even though it is an individual who is the ultimate
sufferer. It is, therefore, the duty of the State to take appropriate steps
when an offence has been committed.
may hasten to clarify that we may not be understood to have laid down an
inviolable rule that no leave should be refused by the appellate Court against
an order of acquittal recorded by the trial Court. We only state that in such
cases, the appellate Court must consider the relevant material, sworn
testimonies of prosecution witnesses and record reasons why leave sought by the
State should not be granted and the order of acquittal recorded by the trial
Court should not be disturbed. Where there is application of mind by the
appellate Court and reasons (may be in brief) in support of such view are
recorded, the order of the Court may not be said to be illegal or
objectionable. At the same time, however, if arguable points have been raised,
if the material on record discloses deeper scrutiny and re-appreciation, review
or reconsideration of evidence, the appellate Court must grant leave as sought
and decide the appeal on merits.
the case on hand, the High Court, with respect, did neither. In the opinion of
the High Court, the case did not require grant of leave. But it also failed to
record reasons for refusal of such leave.
have gone through the judgment and order of acquittal recorded by the trial
Court which runs into more than 30 typed pages. It records that 15 witnesses
were examined by the prosecution including injured victim PW1-Rajan and
PW2-Charushila, real sister of the victim.
The trial Court
observed that the testimony of PW1-Rajan revealed that the incident occurred on
June 7, 2003 at about 6.15 p.m. The injuries sustained by PW1 Rajan were proved
from the evidence of Dr. D'Souza, PW12.
trial Court also recorded the following finding in para 15 of the judgment.
"15. Anyway, the
oral testimony of PW1-Rajan, his sister, PW2- Charusheela, PW9-Nareshkumar of
Vangaon Railway Station as well as the testimony of Dr. Ravidas Purshottam
Patil-PW-15 show that Rajan Mukund Patil sustained bleeding injuries".
D'souza, Medical Officer of KEM Hospital, Mumbai stated that he had examined
victim PW1-Rajan on June 8, 2003 at 4.00 a.m. in the early morning and found
following four injuries.
1. C.L.W. right
shoulder 3 x 1 x 1 cm anterior aspect, caused by sharp object, age within 24
hrs, nature simple.
2. C.L.W. on 1 x 3 x
6 cms in epigastria (upper part of abdomen) caused by sharp object, grievous
3. C.L.W. 1 x 0.5 x
0.5 cm, left axilla i.e. left arm pit caused by sharp object, injury is simple.
4. C.L.W. 5 x 1 x 1
cm left flank (left side of abdomen) caused by sharp object, grievous.
issued necessary certificate which is at Ext. 34. According to him, injuries
could be caused by sharp cutting instrument like knife. Though initially he
stated that injuries 2 and 4 were grievous and fatal in nature, thereafter he
stated that they were not fatal 2 but could become fatal. The Court also noted
that the circumstantial evidence supported the contention of the complainant
that he sustained bleeding injuries. Bloodstains were found on the shirt and
pant of accused which was of Group `A' i.e. blood group of the complainant.
accused in his statement under Section 313 of the Code admitted that he was
present at Vangoan Railway Station on June 07, 2003; that he complained to PW9
Naresh Kumar that one person was flirting with his wife; that he was arrested
by PW 13 Dattatraya and was sent for medical examination, that PW11 Dr. Padmaja
examined him and issued Medical Certificate (Ex. 32). He stated that his wife
and passengers at the Railway Station had severely beaten the complainant. It
has also come on record that complaints were made to the Dahanu Bar
Association. Certain documents were also produced relating to objectionable
behaviour by the complainant, lodging of 2 complaints by the accused and
resolution passed by the Dahanu Bar Association.
trial Court also recorded a finding that the defence counsel had successfully
established enmity between the complainant and the accused. According to the
Court, on the date of incident i.e. on June 7, 2003, around 6.15 p.m., there
was a scuffle between the complainant on one hand and the accused on the other
hand on account of misbehaviour by the complainant towards the wife of the
accused. The trial Court came to the conclusion that from the testimony of
PW10- Dr. Padmaja who examined the accused on June 8, 2003, found three
injuries on the person of the accused as mentioned in Ext.32. They were on the
left shoulder and the right upper limp of the accused. According to the Court,
injuries on the person of the accused supported his defence that he was beaten
by the complainant and prosecution failed to explain the injuries on the person
of the accused.
view of the all these facts, circumstances and findings, in our opinion, the
High Court should not have rejected the application for grant of leave by
passing a `brief' order. Moreover, the High Court observed in the impugned
order that the judgment of the trial Court cannot be said to be `perverse'.
so far as powers of the appellate Court in an appeal against acquittal are
concerned, no restrictions have been imposed by the Code on such powers while dealing
with an order against acquittal. In an appeal against acquittal, the High Court
has full power to re- appreciate, review and reweigh at large the evidence on
which the order of acquittal is founded and to reach its own conclusion on such
evidence. Both questions of fact and of law are open to determination by the
is no doubt true that in a case of acquittal, there is a double presumption in
favour of the respondent-accused. Firstly, the 2 presumption of innocence
available to him under the fundamental principle of criminal jurisprudence that
every person should be presumed innocent unless he is proved guilty by a
competent court of law. Secondly, the accused having secured his acquittal, the
presumption of his innocence is further reinforced by the trial Court (and
certainly not weakened).
Nonetheless, it is
not correct to say that unless the appellate Court in an appeal against
acquittal under challenge is convinced that the finding of acquittal recorded
by the trial Court is `perverse', it cannot interfere. If the appellate Court
on re-appreciation of evidence and keeping in view well established principles,
comes to a contrary conclusion and records conviction, such conviction cannot
be said to be contrary to law.
in Chandrappa v. State of Karnataka, (2007) 4 SCC 415, after considering all
leading decisions on the point, one of us (C.K. Thakker, J.) laid down the
following 2 general principles regarding powers of the appellate Court in
dealing with an appeal against an order of acquittal.
(1) An appellate
Court has full power to review, reappreciate and reconsider the evidence upon
which the order of acquittal is founded;
(2) The Code of
Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise
of such power and an appellate Court on the evidence before it may reach its
own conclusion, both on questions of fact and of law;
expressions, such as, 'substantial and compelling reasons', 'good and
sufficient grounds', 'very strong circumstances', 'distorted conclusions',
'glaring mistakes', etc. are not intended to curtail extensive powers of an
appellate Court in an appeal against acquittal. Such phraseologies are more in
the nature of 'flourishes of language' to emphasize the reluctance of an
appellate Court to interfere with acquittal than to curtail the power of the
Court to review the evidence and to come to its own conclusion.
2 (4) An appellate
Court, however, must bear in mind that in case of acquittal, there is double
presumption in favour of the accused. Firstly, the presumption of innocence
available to him under the fundamental principle of criminal jurisprudence that
every person shall be presumed to be innocent unless he is proved guilty by a
competent court of law. Secondly, the accused having secured his acquittal, the
presumption of his innocence is further reinforced, reaffirmed and strengthened
by the trial court.
(5) If two reasonable
conclusions are possible on the basis of the evidence on record, the appellate
court should not disturb the finding of acquittal recorded by the trial court.
High Court, in our judgment, was not right in rejecting the application for
leave on the ground that the judgment of the trial Court could not be termed as
If, on the basis of
the entire evidence on record, the order of acquittal is illegal, unwarranted
or contrary to law, such an order can be set aside by an appellate Court.
Various 2 expressions, such as, 'substantial and compelling reasons', 'very
strong circumstances', 'distorted conclusions', 'glaring mistakes', `judgment
being perverse', etc. are more in the nature of 'flourishes of language' than
restricting ambit and scope of powers of the appellate Court. They do not
curtail the authority of the appellate Court in interfering with an order of
acquittal recorded by the trial Court. The Judgment of the High Court, with
respect, falls short of the test laid down by this Court in various cases
referred to in Chandrappa. The order of the High Court, therefore, cannot stand
and must be set aside.
the foregoing reasons, the appeal deserves to be allowed and is allowed
accordingly by remitting the matter to the High Court for fresh disposal in
accordance with law.
parting with the case, we may state that we may not be understood to have
expressed any opinion one way or the other on the merits of the matter. As and
when the High Court will hear the matter, the Court will decide the case
without being influenced by any observations made by us in this judgment.