K. Chinnaswamy Reddy Vs. State of
Andhra Pradesh [1962] INSC 214 (25 July 1962)
WANCHOO, K.N.
WANCHOO, K.N.
SINHA, BHUVNESHWAR P.(CJ) SHAH, J.C.
CITATION: 1962 AIR 1788 1963 SCR (3) 412
CITATOR INFO:
R 1968 SC 707 (8) R 1970 SC 272 (11) RF 1970
SC1934 (7) F 1973 SC 84 (6) R 1973 SC1274 (17) RF 1973 SC2145 (4,8) R 1975 SC
580 (4) R 1978 SC 1 (15) E 1981 SC1415 (1,2) R 1986 SC1721 (9)
ACT:
Acquittal--Power of High court in
revision--Retrial-Admissibility of statement made by accussed during Police
investigation--Code of Criminal Procedure, 1898 (Act V of 1898), s. 439--Indian
Evidence Act, 1872 (1 of 1872), s. 27.
HEADNOTE:
The appellant, tried with another, was
convicted under s. 411 Indian Penal Code while the other was convicted under
ss. 457 and 380 of the Code by the Assistant Sessions judge.
The appellant had stated to the police during
investigation that she would show the place where he had hidden them (the
ornaments)" and thereafter went to the garden and dug out two bundles containing
the ornaments. The other accused person had also similarly stated that he had
given the 413 ornaments to one Bada Sab, took the police party to Bada Sab and
asked him to return the ornament which he did. The Sessions Judge on appeal
took the view that that part of the statement of the appellant where he said
that he 'had hidden the ornaments was not admissible in evidence and in the
absence of any other evidence possession of the ornament could not be said to
have been proved. He, therefore, held that the appellant was entitled to the
benefit of doubt and acquitted him. He also took a similar view with regard to
the other accused person and acquitted him. The order of acquittal was set
aside by the High Court in revision under s. 439 of the Code of Criminal
Procedure and a retrial was directed. It was against the order of retrial that
the appeal was directed.
Held, that it was open to a High Court in
revision and at the instance of a private party to set aside an order of
acquittal though the State might not have appealed. But such jurisdiction
should be exercised only in exceptional cases, as where a glaring defect in the
procedure or a manifest error of law leading to a flagrant miscarriage of
justice has taken place. When s. 439(4) of the Code forbids the High Court from
converting a finding of acquittal into one of conviction, it is not proper that
the High Court should do the same indirectly by ordering a retrial. It was not
possible to lay down the criteria for by which to judge such exceptional cases.
It was, however, clear that the High Court would be justified in interfering in
cases such as (1) where the trial court had wrongly shut out evidence sought to
be adduced by the prosecution, (2) where the appeal court had wrongly held
evidence admitted by the trial court to be inadmissible, (3) where material
evidence has been overlooked either by the trial court or the court of appeal
or, (4) where the acquittal was based on a compounding of the offence not
permitted by law and cases similar to the above.
D. Stephens v. Nosibolla, [1951] S.C.R. 284
and Logendranath Jha, v. Shri Polailal Biswas, [1951] S.C.R. 676, referred to.
There could be no doubt in the instant case
that the entire statements of the appellant as well as of the other accused person
would be admissible tinder s. 27 of the Indian Evidence Act and the Sessions
judge was in error in ruling out parts of them and the High Court was clearly
justified in setting aside the acquittal in revision.
Pulukuri Kotayya v. King Emperor, (1946) L.R.
74 I.A. 65, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Apeal No. 6 of 1960.
Appeal by special leave from the judgment and
order dated July 1, 1959, of the Andhra Pradesh High Court in Cr. Revision Case
No. 403 of 1958 and Criminal Revision Petn. No. 337 of 1957.
P. Ram Reddy, for the appellant.
K.R. Choudhuri, and P. D. M for respondent
No. 1.
K. R. Chaudhuri, for respondent No. 2.
1962. July 25. The Judgment of the Court was
delivered by WANCHOO, J.-This is an appeal by special leave against the
judgment of the Andhra Pradesh High Court. The appellant was convicted under s.
411 of the Indian Penal Code by the Assistant Sessions Judge of Kurnool. Along
with him, another person Hussain Saheb was also tried and was convicted under
so. 457 and 380 of the Indian Penal Code.
The case for the prosecution briefly was that
the house of Rahayya in Dudyia was burgied on the night of April 20, 1957.
Ramayya and his wife were sleeping outside and on waking in the morning they
found that the house had been burgled and valuable property stolen. The matter
was reported to the police and during the course of investigation the police
recovered 17 ornaments on the information given by the appellant. The other
accused had also given information on the basis of which another stolen
ornament was recovered. The Assistant Sessions Judge on a consideration of the
evidence came to the conclusion that the other accused had actually committed
house breaking and had removed ornaments from the house of Ramayya and had
handed over 17 ornaments out 415 of that property to the appellant. He also
came to the conclusion that the seventeen ornaments recovered at the instance
of the appellant were in his possession and he therefore found him guilty under
s. 411 of the Indian Penal Code. The appellant and the other accused went in
appeal to the Sessions Judge. The Sessions Judge held that the appellant had
not been proved to be in possession of the seventeen ornaments which were
recovered at his instance from a garden. The statement of the appellant in this
respect was that "he would show the place where he had hidden them (the
ornaments)". Thereafter he went to the garden and dug out two bundles
containing the seventeen ornaments from there. The Sessions Judge held that the
recovery of ornaments from the garden at the instance of the appellant was
proved; but he further held that that part of the statement of the appellant
where he said that he had hidden the ornaments was not admissible in evidence.
Therefore, he took the view that as the
ornaments were recovered from a place which was accessible to all and sundry
and there was no other evidence to show that the appellant had hidden them, it
could not be held that the ornaments were in the appellant's possession. He therefore
gave the benefit of doubt to the appellant and ordered his acquittal. He also
acquitted the other accused at whose instance one of the stolen ornaments was
recovered. This accused had stated that he given the ornaments to Bada Sab (P.
W. 5) and took the police party to Bada Sab and asked him to return the
ornaments, which Bada Sab did. The Sessions Judge, however, on a consideration
of the evidence against the other accused thought the case against him was also
doubtful and ordered his acquittal, though he ordered the return of ornaments
to Ramayya.
This was followed by a revision by Ramayya
against the appellant and the other accused. The 416 High Court has allowed the
revision and directed that the matter should go back to the Sessions Judge so that
the accused should be re-tried on the charges on which they had been brought to
trial on the former occasion. It is against this order of the High Court
directing retrial that the present appeal by special leave is directed. It may
be mentioned, however, that only Chinnaswamy Reddy has appealed while the other
accused has not appealed against the order of the High Court.
The main contention of the appellant before
us is that this was a revision by a private party. There were no exceptional
circumstances in this case which would justify the High Court in interfering
with an order of acquittal at the instance of a private party. Further, it is
urged that a. 439 (4) of the Code of Criminal Procedure specifically forbids
the High Court from converting a finding of acquittal into one of conviction
and that a reading of the judgment of the High Court shows that by the indirect
method of retrial the High Court has practically directed the Sessions Court to
convict the appellant and thus indirectly converted finding of acquittal into
one of conviction, through it has not been done and could not be done directly.
The extent of the jurisdiction of the High
Court in the matter of interfering in revision against an order of acquittal
has been considered by this Court on a number of occasions. In D, Stephens v.
Nosibolla (1) this Court observed “The provisional jurisdiction conferred on
the High Court under s. 439 of the Code of Criminal Procedure is not to be
lightly exercised when it in invoked by a private complainant against an order
of acquittal, against which the Government has a right of appeal under a. 417.
It could be exercised only (1) [1951] S.C.R. 284.
417 in exceptional cases where the interests
of public justice require interference for the correction of a manifest
illegality or the prevention of a gross miscarriage of justice.
This jurisdiction is not ordinarily invoked
or used merely because the lower Court has taken a wrong view of the law or mis
appreciated the evidence on the record." Again, in Logendranath Jha v.
Shri Polailal Biswas(1), this Court observed" 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-a. (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 reappraise 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 retrial." These two cases clearly lay down the limits of the
High Court's jurisdiction to interfere with an order of acquittal in revision;
in particular, Logendranath Jha's case (1) stresses that it is not open to a
High Court to convert a finding of acquittal into one of conviction in view of
the provisions of s. 439 (4) and that the High Court cannot do this even
indirectly by ordering re-trial. What had happened in that case was that the
High Court reversed pure findings of facts based on the trial court's
appreciation of evidence but formally (1) (1951) S.C.R. 676.
418 complied with sub-a. (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 the judgment of the High Court. In that connection this Court
observed that there could be little doubt that the dice was loaded against the
appellants of that case 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.
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 a. 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 419 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 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 directly in view of the provisions of a.
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.
A perusal of the judgment of the High Court
shows that the High Court has gone into the evidence in great detail so far as
the case against the appellant was concerned. In our opinion, the High Court
should not have dealt with evidence in such detail when it was going to order a
retrial, for such detailed consideration of evidence, as pointed out in
Logendranath's case (1) amounts to loading the dice against the appellant, when
the case goes back for retrial. If the matter stood at this only, we would have
no hesitation in setting aside the order of the High Court directing a retrial;
but there is one important circumstance in this case to which the High Court
has adverted in passing, which, in our opinion, was sufficient to enable the
High Court to set aside the acquittal in this case. It would then have been
unnecessary to consider the evidence in that detail in which the High Court has
gone into it, and thus load the (1) [1951] S.C.R.676.
420 dice against the appellant, when the case
goes back for retrial. That circumstance is that the Assistant Sessions Judge
had admitted in evidence that part of the statement of the appellant in which
he stated that he would show the place where he had hidden the ornaments and
relying on it he held that the appellant was in possession of the seventeen
ornaments, he had dug out from the garden which he owned along with others. The
Sessions Judge however held that that part of the statement of the appellant
where he stated that he had hidden the ornaments was inadmissible in evidence.
The same applies to the case against the other accused, 'who had stated that he
had given one ornament to Bada Sab and would get it recovered from him. Though
the Sessions Judge has not in specific trems ruled out that part of the other
accused's statement where he said that he had given the ornament to Bada Sab,
he did not consistently with what be said with respect to the appellant, attach
importance to this statement of the other accused. If therefore this part of
the statement of the appellant and the other accused which led to discovery of
ornaments is admissible, it must be held that the appeal court wrongly ruled
out evidence which was admissible. In these circumstances, the case would
clearly be covered by the principles we have set out above in as much as
relevant evidence was ruled out as inadmissible and the High Court would be
justified in interfering with the order of acquittal so that the evidence may
be reappraised after taking into account the evidence which was wrongly ruled
out as inadmissible. It seems that the High Court was conscious of this aspect
of the matter, for it says in one part of the judgment that the only possible
inference that could be drawn was that the appellant was in possession of
stolen goods before they were put in that secret spot, as admitted by the
appellant in his statement, part of which 421 is admissible under s. 27 of the
Indian Evidence Act. If the High Court had confined itself only to the
admissibility of this part of the statement, it would have been justified in
interfering with the order of acquittal. Unfortunately, the High Court went
further and appraised the evidence also which it should not have done, as held
by this Court in Logendranath's case. However, if admissible evidence was ruled
out and was not taken into consideration, that would in our opinion be a ground
for interfering with the order of acquittal in revision.
Let us then turn to the question whether the
statement of the appellant to the effect that ,he had hidden them (the
ornaments)" and "would point out the place" where they were, is
wholly admissible in evidence under s. 27 or only that part of it is admissible
where he stated that he would point out the place but not that part where he
stated that he had hidden the ornaments. The Sessions Judge in this connection
relied on Pulukuri Kotayya v. King-Emperor (2) where a part of the statement
leading to the recovery of a knife in a murder case was held inadmissible by
the Judicial Committee.
In that case the Judicial Committee
considered s. 27 of the Indian Evidence Act, which is in these terms :"Provided
that, when any fact is deposed to as discovered in consequence of information
received from a person accused of any offence, in the custody of a police
officer, so much of such information, whether it amounts to a confession or
not, as relates distinctly to the fact thereby discovered, may be proved."
This section is an exception to ss. 25 and 26, which prohibit the proof of a
confession made to a police officer or a confession made while a person is in
(1) [1951] S.C.R. 676.
(2) [1946] L.R. 74 I.A. 65.
422 police custody, unless it is made in
immediate presence of a magistrate. Section 27 allows that part of the
statement made by the accused to the police "whether it amounts to a
confession or not" which relates distinctly to the fact thereby discovered
to be proved. Thus even a confessional statement before the police which
distinctly relates to the discovery of a fact may be proved under s. 87. The
Judicial Committee had in that case to consider how much of the information
given by the accused to the police would be admissible under a. 17 and laid
stress on the words "so much of such information as relates distinctly to
the fact thereby discovered" in that connection. It held that the extent
of the information admissible must depend on the exact nature of the discovered
to which such information is required to relate. It was further pointed out
that "the fact discovered embraces the place from which the object is
produced and the knowledge of the accused as to this, and the information given
must relate distinctly to this fact." It was further observed. that" Information
as to past user, or the past history of the object produced is not related to
its discovery in the setting in which it is discovered." This was
exemplified further by the Judicial Committee by observing" Information
supplied by a person in custody that 'I will produce a knife concealed in the
roof of my house' leads to the discovery of the fact that a knife is concealed
in the house of the informant to his knowledge, and if the knife is proved to
have been used in the commission of the offence., the fact discovered is very
relevant. If however to the statement the words be added with which 423 I
stabbed A', these words are inadmissible since they do not relate to the
discovery of the knife in the house of the informant." If we may respectfully
say so, this case clearly brings out what part of the statement is admissible
under a. 27. It is only that part which distinctly relates to the discovery
which is admissible; but if any part of the statement distinctly relates to the
discovery it will be admissible wholly and the court cannot say that it will
excise one part of the statement because it is of a confessional nature.
Section 27 makes that part of the statement
which is distinctly related to the discovery admissible as a whole, whether it
be in the nature of confession or not. Now the statement in this case is said
to be that the appellant stated that he would show the place where he had
hidden the ornaments. The Sessions Judge has held that part of this statement
which is to the effect 'where he had hidden them" is not admissible. It is
clear that if that part of the statement is excised the remaining statement
(namely, that he would show the place) would be completely meaningless.
The whole of this statement in our opinion
relates distinctly to the discovery of ornaments and is admissible under s. 27
of the Indian Evidence Act. The words "where he had hidden them" are
not on a par with the words "with which I stabbed the deceased" in
the example given in the judgment of the Judicial Committee. These words
(namely, where he had hidden them) have nothing to do with the past history of
the crime and axe distinctly related to the actual discovery that took place by
virtue of that statement. It is however urged that in a case where the offence
consists of possession even the words "where he had hidden them "
would be inadmissible as they would amount to an admission by the accused that
he was in possession. There are in our opinion two answers to this argument. In
the first place, 424 s 27 itself says that where the statement distinctly
relates to the discovery it will be admissible whether it amounts to a
confession or not. In the second place, these words by themselves though they
may show possession of the appellants would not prove the offence, for after
the articles have been recovered, the prosecution has still to show that the
articles recovered are connected with the crime, i. e. in this case, the
prosecution will have to show that they are stolen property. We are therefore
of opinion that the entire statement of the appellant (2) as well as of the
other accused Who stated that he had given the ornament to Bada Sab and would
have it recovered from him) would be admissible in evidence and the Sessions
Judge was wrong in ruling out part of it. Therefore, as relevant and admissible
evidence was ruled out by. the Sessions Judge, this is,% fit case where the
High Court would be entitled to set aside the finding of acquittal in revision,
though it is unfortunate that the High Court did not confine itself only to
this point and went on to make rather strong remarks about other parts of the
evidence.
The next question is what order should be
passed in a case like the present. The High Court also considered this aspect
of the matter. Two contingencies arise in such a case. In the first place there
may be an acquittal by the trial court. In such a case if the High Court is
justified, on principles we have enunciated above, to interfere with the order
of acquittal in revision, the only course open to it is to set aside the
acquittal and send the case back to the trial court !or retrial. But there may
be another type of case, namely, where the trial court has convicted the
accused while the appeal court has acquitted him. In such a case if the
conclusion of the High Court is that the order of the appeal court must be set
aside, the question is whether the appeal court should be 425 ordered to
re-hear the appeal after admitting the statement it had ruled out or whether
there should K necessarily be a retrial. So far as this is concerned, we are of
opinion that it in open to the High Court to take either of the two courses. It
may order a retrial or it may order the appeal court to re-hear the appeal. It
will depend upon the facts of each case whether the High Court would order the
appeal court to re-hear the appeal or would order a retrial by the trial court.
Where, as in this case, the entire evidence is there and it was the appeal
court which ruled out the evidence that had been admitted by the trial court,
the proper course in our opinion is to send back the appeal for rehearing to
the appeal court. In such a case the order of the trial court would stand
subject to the decision of the appeal court on re-hearing. In the present case
it is not disputed that the entire evidence has been led and the only defect is
that the appeal court wrongly ruled out evidence which was admitted by the
trial court. In the circumstances we are of opinion that the proper course is
to direct the appeal court to re-hear the appeal and either maintain the
conviction after taking into consideration the evidence which was ruled out by
it previously or to acquit the accused if that is the just course to take. We
should like to add that the appeal court when it re-hears the appeal should not
be influenced by any observations of the High Court on the appreciation of the
evidence and should bring to bear its own mind on the evidence after taking
into consideration that part of the evidence which was, considered inadmissible
previously by it. We therefore allow the appeal subject to the modification
indicated above.
This leaves the case of the other accused. We
are of opinion that as we are directing the appeal court to re-hear the appeal
with respect to the appellant it is only proper that the order relating to the
426 other accused should also be set aside and his appeal should also be
re-heard in the manner indicated above. We therefore set aside the order of the
High Court with respect to the retrial of the other accused and direct that his
appeal will also be re-heard along with the appeal of the appellant.
Appeal allowed.
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