Mahendra Pratap Singh Vs. Sarju Singh
& ANR  INSC 262 (20 November 1967)
20/11/1967 HIDAYATULLAH, M.
CITATION: 1968 AIR 707 1968 SCR (2) 287
R 1973 SC1274 (17) RF 1973 SC2145 (4,8) R
1975 SC 580 (4)
Code of Criminal Procedure (Act 5 of 1898),
s. 439--Sessions Court acquits-Revision--Power of High Court.
In a revision filed by a private party, the
High Court in its powers under s. 439, Code of Criminal Procedure directed the
retrial of the appellant, who had been acquitted by the Sessions Judge. In
doing so. the High Court, went into the evidence very minutely, questioned
every finding of the Sessions Judge, gave its own interpretation of the
evidence de novo.
HELD: In setting aside an acquittal in a
revision and ordering a retrial, there must exist a manifest illegality in the
judgment of acquittal or a gross miscarriage of justice. An interference in
revision with an order of acquittal can only take place, if there is a glaring
defect of procedure such as that the Court has no jurisdiction to court had
shut out some material evidence which was admissible or attempt to take into
account evidence which was not admissible or had overlooked some evidence.
Although the list given is not exhaustive of
all the circumstances in which the High Court may interfere with an an acuital
in revision it is obvious that the defect in the judgment under revision must
be analogous to those actually indicated by this Court. [290 A,D--E] D. Stephens
v. Nosibolla,  S.C.R. 284, Logendranath ]ha and others v. Shri Polailal
Biswas,  S.C.R. 676 and K. Chinnaswamy Reddy v. State of Andhra Pradesh,
 3 S.C.R. 412, followed.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 23 of 1965.
Appeal by special leave from the judgment and
order dated July 17, 1964- of the Patna High Court in Criminal Revision No. 597
Nur-ud-din Ahmed and D. Goburdhan, for the
R.C. Prasad. for respondent No. 1.
The Judgment of the Court was delivered by
Hidayatullah, J. This is an appeal against the judgment. July 17, 1963. of a
learned single Judge of the High Court at Patna setting aside the acquittal of
the appellant ordered by the 1st Additional Sessions Judge.
Gaya and directing his retrial.
The only question in this appeal is whether
the High Court in exercising its revisional powers under s. 439 of the Code of
Criminal Procedure acted in accordance with the principles settled by this
Court for interference with acquittal by way of revision filed 288 by a private
party. To apply those principles, certain facts first be stated.
The appellant was tried on three charges
levelled against him First was under s. 302 of the Indian Penal Code for
intentionally causing the death of one Kuldip Singh with a fire-arm on December
18, 1961 in village Gajra Chatar; the second was attempt murder Kuldip Shigh's
companion Sarju Singh by shooting at him with the same weapon; and the third
was the unlawful possession of the weapon (a revolver) which is an offence
under the Arms Act. It appears that there was some iII-feeling between the
appellant and Kuldip Singh, not directly, but because the appellant, who is a
lawyer, was conducting cases on behalf of his sister in prolonged litigation
started by Kuldip Singh and his party.The litigation concerned the possession
of land and it is admitted before us that all the cases had in fact ended in
favour of the appellant's sister.
The occurrence is stated to have taken place
when an inquiry into a case under s. 107 of the Code of Criminal Procedure was
taking place. A notice had been issued to Kuldip Singh's party to show cause
why they should not be proceeded against and asked to furnish interim bail. The
prosecution story is that the deceased Kuldip Singh accompanied by Sarju Singh
the injured man, and one Musafir Singh (P. W. 12) were proceeding towards
village Nawadah via Tilaiya Railway Station.' They had started early in the
morning and had taken an hour and a half to reach village Gajra Chatar where
the incident is said to have taken place. When they reached near a garden. they
found two persons sitting under a tree and approaching them they recognised the
appellant but the other was unknown. These persons began to shadow Kuldip Singh
and his companions, and after they had proceeded a little further towards the
garden, one of them fired at Kuldip on his back. The prosecution case is that
Sarju immediately turned round and attempted to catch hold of the appellant who
had fired with a revolver, but 'the appellant shot Sarju on his leg behind the
knee. Thereafter. the appellant and his companion ran away.
The report of the incident was made by Kuldip
Singh himself who seems not to have lost his consciousness and in that report
he named the appellant. Subsequently, Kuldip made two dying declarations in
which he again named the appellant as the assailant. describing the weapon of
attack as a revolver. Kuldip died and the case was started against the
appellant as stated already.
The, learned Sessions Judge on an appraisal
of the evidence found it unsatisfactory. He began by stating that the medical
evidence as also the evidence of 'the ballistic expert (P.W. 17) clearly
disclosed that the assault was not committed with a revol vet but with a shot
gun. He also could not believe the evidence.
289 that Sarju could be shot from behind when
he was grappling with the appellant. He felt that this created doubt as to
whether the injured persons and Musafir who all consistently described the
weapon as a revolver had in fact been able to see the weapon or to identify the
assailant. Having found this unworthy of credit, the learned Sessions Judge
went into a number of other circumstances which in his opinion tended to show
that the prosecution case was not free from concoction and hence not free from
doubt. He felt that the attack was from an ambush and the deceased and 1he
witnesses had named the appellant with whom they had deep enmity but they had
not seen the real assailant. He accordingly gave the benefit of doubt to the appellant
and ordered his acquittal.
In revision, the learned Judge in 'the High
Court went into the evidence very minutely. He questioned every single finding
of the learned Sessions Judge and gave his own interpretation of the evidence
and the inferences to be drawn from it. He discounted the theory that the
weapon of attack was a revolver and suggested that it might have been a shot
gun or country made pistol which the villagers in the position of Kuldip and
Sarju could not distinguish from a revolver. He then took up each single
circumstance on which the learned Sessions Judge had found some doubt and
interpreting the evidence de novo held, contrary to the opinion of the Sessions
Judge that they were acceptable:
All the time he appeared to give the benefit
of the doubt to the prosecution. The only error of law which the learned Judge
found in the Sessions Judge's judgment was a remark by the Sessions Judge that
the defence witnesses who were examined by the police before they were brought
as defence witnesses ought to have been cross examined with reference to their
previous statements recorded by the police, which obviously is against the
provisions of the' Code Except for this error, no defect of procedure or of law
was discovered by the learned Judge of the High Court in his appraisal of the
judgment of the Sessions Judge. As stated already by us he seems to have gone
into the matter as if an appeal against acquittal was before him making no
distinction between the appellate and the revisional powers exercisable by the
High Court in matters of acquittal except to the extent that instead of
convicting the appellant he only ordered his retrial. In our opinion the
learned Judge was clearly in error in proceeding as he did in a revision filed
by a private party. against the acquittal reached in 1he Court of Session.
The practice on the subject has been stated
by this Court on more than one occasion. In D. Stephens v.
Nosibolla(1), only two grounds are mentioned
by this Court as entitling the High Court set aside an acquittal in a revision
and to order a retrial. They  S.C.R. 284.
290 are that there must exist a manifest
illegality in the judgment of the Court of Session ordering the acquittal or
there must be a gross miscarriage of justice. In explaining these two
propositions, this Court further states that the High Court is not entitled to
interfere even if a wrong view of law is taken by the Court of Session or if
even there is misapprehensions of evidence. Again, in Logendranath Jha and
others v. Shri Polailal Biswas(1), this Court points out that the High Court is
entitled in revision to set aside an acquittal if there is an error on a point
of law or no appraisal of the evidence at all. This Court observes that it is
not sufficient to say that the judgment under revision is "perverse"
or "lacking in true correct perspective". It is pointed out further
that by ordering a retrial, the dice is loaded against the accused, because
however much the High Court may caution the Subordinate Court, it is always
difficult to reweigh the evidence ignoring the opinion of the High Court. Again
in K. Chinnaswamy Reddy v. State of Andhra Pradesh(2), it is pointed out that
an interference in revision with an order of acquittal can only take place if
there is a glaring defect of procedure such as that the Court had no
jurisdiction to try the case or the Court had shut out some material evidence
which was admissible or attempted to take into account evidence which was not
admissible or had overlooked some evidence. Although the list given by this
Court is not exhaustive of all the circumstances in which the High Court may
interfere with an acquittal in revision it is obvious that the defect in the
judgment under revision must be analogous to those actually indicated by this
Court. As stated',' not one of these points which have been laid down by this
Court was covered in the present case. In fact on reading the judgment of the
High Court it is apparent to us that the learned Judge has reweighed the
evidence from his own point of view and reached inferences contrary to those of
the Sessions Judge on almost every point. This we do not conceive to be his
duty in dealing in revision with an acquittal when Government has not chosen to
file an appeal against it.
In other words, the learned Judge in the High
Court has not attended to the rules laid down by this Court and has acted in
breach of them.
We have had the two judgments read out to us
and we are of opinion that there is much that can be said in favour of the
judgment of the Sessions Judge who probably felt that the identity of the real
assailant not having been found, the persons chose to name the most likely
persons or one who was responsible for their discomfiture in the litigation
which was going on for years. That the appellant might have hired some
assassins or might even have himself been present at the occurrence may be true
but the question (1)  S.C.R. 676. (2)  3 S.C.R. 412.
291 was whether the Sessions Judge was not
within his rights in rejecting the prosecution case on a proper appraisal of
the evidence which he found to be unsatisfactory. Looking to all the
circumstances that have been brought to our notice, we are satisfied that the
Sessions Judge acted within his rights in deciding the case which to us appears
also to be somewhat doubtful in many respects and the High Court was therefore
in error in taking upon itself the l duty of hearing a revision application as
if it was an appeal and setting aside the acquittal not by convicting the
accused but reaching the same result indirectly by ordering a retrial. In our
opinion, the judgment of the High Court cannot be allowed to stand.
The appeal succeeds and the order of retrial
is therefore revoked and the acquittal is restored.
Y.P. Appeal allowed.