Logendranath Jha & Ors Vs. Shri
Polailal Biswas [1951] INSC 37 (24 May 1951)
SASTRI, M. PATANJALI KANIA, HIRALAL J. (CJ)
DAS, SUDHI RANJAN BOSE, VIVIAN
CITATION: 1951 AIR 316 1951 SCR 676
CITATOR INFO :
F 1955 SC 584 (3) R 1962 SC1788 (5,6,8) RF
1968 SC 707 (8) R 1970 SC 272 (10) RF 1973 SC2145 (4,8) R 1975 SC 580 (4) R
1978 SC 1 (15) R 1986 SC1721 (9)
ACT:
Criminal Procedure Code (V of 1898), s. 439
(4)--Revision against acquittal--High Court's powers--Reversal of findings of
facts--Impropriety of.
HEADNOTE:
Though sub-s. (1) of s. 439 of the. Criminal
Procedure Code authorises the High Court to exercise in Its discretion any of
the powers conferred on a court of appeal by s. 423, yet sub-s. (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 can
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 stops short of finding the accused guilty and passing sentence on him, by
ordering a re-trial.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 17 of 1951.
Appeal against a Judgment and. Order dated
22nd January, 1951, of the High Court of Judicature at Patna (Imam J.) in
Criminal Revision No. 1533 of 1950 677 S.P. Sinha (P.S. Safeer and K.N.
Aggarwal, with him) for the appellants. The respondent did not appear.
1951. May 24. The Judgment of the Court was
delivered by PATANJALI SASTRI J.--This is an appeal by special leave from an
order of the High Court of Judicature at Patna setting aside an order of
acquittal of the appellants by the Sessions Judge, Purnea, and directing their
retrial.
The appellants were prosecuted for alleged
offences under sections 147, 148, 323, 324, 326, 302 and 302/149 of the Indian
Penal Code at the instance of one Polai Lal Biswas who lodged a complaint
against them before the police. The prosecution case was that, while the
complainant was harvesting the paddy crop on his field at about 10 a.m.
on 29th November, 1949, a mob of about fifty
persons came on to the field armed with ballams, lathis and other weapons and
that the first appellant Logendranath Jha, who was leading the mob, demanded a
settlement of all outstanding disputes with the complainant and ,said he would
not allow the paddy to be removed unless the disputes were settled.
An altercation followed as a result of which
Logendra ordered an assault by his men. Then Logendra and one of his men,
Harihar, gave ballam blows to one of the labourers, Kangali, who fell down and
died on the spot. Information was given to the police who investigated the case
and submitted the charge-sheet. The committing Magistrate found that a prima
facie case was made out and committed the appellants to the Court of Sessions
for trial.
The appellants pleaded not guilty alleging
inter alia, that Mohender and Debender, the brothers of Logendra (appellants 2
and 3) were not present in the village of Dandkhora with which they had no
concern, as all the lands in that village had been allotted to Logendra at a
previous partition, that Logendra himself was not in the village at the time of
the occurrence but arrived 678 soon after and was dragged to the place at the
instance of his enemies in the village and was placed under arrest by the
Assistant Sub-Inspector of Police who had arrived there previously. It was also
alleged that there were two factions in the village, one of which was led by
one Harimohan, a relation of the complainant, and the other by Logendra and
there had been numerous revenue and criminal proceedings and long-standing
enmity between the families of these leaders as a result of which this false
case was foisted upon the appellants.
The learned Sessions Judge examined the
evidence in great detail and found that the existence of factions as alleged by
the appellants was true. He found, however, that the appellants' plea of alibi
was not satisfactorily made out, "but the truth of the prosecution",
he proceeded to observe, "cannot be judged by the falsehood of the defence
nor can the prosecution derive its strength from the weakness of the defence.
Prosecution must stand on its own legs and must prove the story told by it at
the very first stage.
The manner of occurrence alleged by the
prosecution must be established beyond doubt before the accused persons can be
convicted". Approaching the case in this manner and seeing that the basis
of the prosecution case was that Polai had batai settlement of the disputed
land and had raised the paddy crop which he was harvesting when the occurrence
took place, the learned Sessions Judge examined the evidence of the prosecution
witnesses who belonged to the opposite faction critically and found that the
story of the prosecution was not acceptable. Polai, who was alleged to have
taken the land on batai settlement from his own maternal grandmother Parasmani
who brought him up from his childhood, was only 19 years old and unmarried and
was still living with his grandmother. He did not claim to be a bataidar of any
other person. "In these circumstances", said the learned Judge,
"it does not appear to me to be probable that Polai would have been
allowed to maintain himself by running adhi cultivation of his mamu's land in
the lifetime of 679 his nani who has brought him up from his infancy like her
own child. Nor does it appeal to me that the unmarried boy Polai would have
undertaken upon himself the task of running batai cultivation of the lands of
his mamu where he has been living since his childhood without any trouble, more
particularly in view of the heavy expenses of cultivation brought out by the
evidence of Tirthanand (P.W. 14)". He, therefore, disbelieved the whole
story that Polai had taken the lands of his grandmother or his uncles as
bataidar for cultivation and that he was engaged in harvesting the paddy crop
on the lands at the time of the occurrence. This false story, in his opinion,
"vitally affected the prosecution case regarding the alleged manner of the
occurrence". He also found a number of discrepancies and contradictions in
the evidence of the prosecution witnesses, which, in his view, tended to show
that the prosecution was guilty of concealment of the real facts. ' 'In view of
such concealment of real facts," the learned Judge concluded, "it
does not appear to me to be possible to apportion liability and to decide which
of the two parties commenced the fight and which acted in self-defence. Such
being the position, it is not possible at all to hold either party responsible
for what took place. In such a view of the matter coupled with the fact that
the manner of occurrence alleged by the prosecution has not been established to
be true beyond doubt, I think that the accused persons cannot be safely
convicted of any of the offences for which they have been charged." The
learned Judge accordingly acquitted the appellants of all the charges framed
against them.
Against that order the complainant Polai
preferred a revision petition to the High Court under section 439 of the
Criminal Procedure Code., The learned Judge who heard the petition reviewed the
evidence at some length and came to the conclusion that the judgment of the
learned Sessions Judge could not be allowed to stand as the acquittal of the
appellants was "perverse' '. In his opinion, "the entire judgment
displays a lack 680 of true perspective in a case of this kind. The Sessions
Judge had completely misdirected himself in looking to the minor discrepancies
in the case and ignoring the essential matters so far as the case is
concerned," and there was no justifiable ground for rejecting the
prosecution evidence regarding the cultivation and harvesting by Polai. And he
concluded with the warning "I would, however, make it perfectly clear that
when the case is re-tried, which I am now 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." On behalf of the appellants Mr.
Sinha raised two contentions. In the first place, he submitted that having
regard to section 417 of the Criminal Procedure Code which provides for an
appeal to the High Court from an order of acquittal only at the instance of the
Government, a revision petition under section 439 at the instance of a private
party was incompetent, and, secondly, that sub-section (4) of section 439
clearly showed that the High Court exceeded its powers of revision in the
present case in upsetting the findings of fact of the trial Judge. ' We think
it is unnecessary to express any opinion on the first contention of Mr. Sinha
especially as the respondent is unrepresented, as we are of opinion that his
second and alternative contention must prevail.
It will be seen from the judgment summarised
above that the learned Judge in the High Court re-appraised the evidence in the
case and disagreed with the Sessions Judge's findings of fact on the ground
that they were perverse and displayed a lack of true perspective. He went
further and, by way of "expressing in very clear terms as to how perverse
the judgment of the court below is", he indicated that the discrepancies
in the prosecution evidence and the circumstances of the case which led the
Sessions Judge to discredit the prosecution story afforded no justifiable
ground for the conclusion that the prosecution failed to establish their case.
We are of opinion that the learned Judge in the High Court did not properly
appreciate the 681 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
characterising 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 retrial of the appellants without
convicting them, and warned that the court retrying 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
manner he did, and we set aside his order for retrial of the appellants and
restore the order of acquittal passed by the Sessions Judge.
Appeal allowed.
Agent for the appellant: Kundan Lal Mehta.
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