Khetrabasi Samal Vs. State of Orissa
 INSC 182 (14 August 1969)
14/08/1969 MITTER, G.K.
REDDY, P. JAGANMOHAN
CITATION: 1970 AIR 272 1970 SCR (1) 880 1969
SCC (2) 571
R 1973 SC1274 (17) R 1975 SC 580 (4)
Code of Criminal Procedure (5 of 1898), s.
417(1) and (3)--Case of assault--Case against some accused started on police
report and against others on complaint to Magistrate--Two cases clubbed and
tried together-Accused acquitted--Appeal against acquittal against accused
against whom case initiated on police report--Whether complainant could file or
only State competent to life.
A first information report to the police was
lodged against the appellants and some others--ten persons in all, for having
taken part in an assault and causing hurt to the victim of the assault. On the
police report, the Magistrate took cognizance of the case. More than six were
after the incident, the victim filed a complaint before the Magistrate naming
thirty-one persons (including the ten persons against whom the first information
was given) as: his assailants, and the Magistrate took cognizance of the case
against the other twenty-one accused as a separate case. On the application of
the complainant (victim), the two. cases, one on the police report and the
other on the private complaint, were clubbed and tried together. The
Magistrate, on an examination of the evidence, held that there was no proof
beyond reasonable doubt that the accused persons committed the assault and
acquitted all of them. The complainant then filed an appeal under s. 417(3),
Criminal Procedure Code, to the High Court. The appellants, against whom
cognizance of the case was taken on the police report, challenged the
maintainability of the appeal on the ground that the appeal against their
acquittal was maintainable only if preferred by the State Government under s.
The High Court overruled the objection,
reappraised the evidence of the witnesses, upset the finding of the Magistrate
and convicted the appellants.
In appeal to this Court, on the questions: (1
) As to the maintainability of the appeal by the complainant; and (2) Whether
the matter should be sent back to the High Court for disposal under s. 439 of
HELD: (1 ) Though the two. cases could be
clubbed together for convenience of trial under s. 239 of the Code the nature
and identity of the cases in relation to their appeal ability under s. 417 were
not altered. In the case started against the appellants on the police report
the appeal against acquittal could have been filed only by the State
Government, and if no. such appeal was filed, the complainant could only invoke
the revisional powers of the High Court under s. 439 if proper grounds were
present. [883 A-C] (2) The High Court can exercise its revisional powers under
s. 439 when invoked by a private complainant against an order of acquittal
against which the State has a right of appeal under 's. 417, only in
exceptional cases when there is some glaring defect in the procedure and there
is a manifest error on a point of law and consequently there has been a
flagrant miscarriage of justice. The present case however is one of mere
appraisal of evidence. In such a case the High Court under s. 439, could not
re-examine the evidence or order a retrial. Therefore, the case was no.t a fit
one for sending back to the High Court. [883 E-F; 884 E- G; 885 A. F-H] D.
Stephens v. Nosibolla,  S.C.R. 284, Logendranath jha v. Polailal Biswas
 S.C.R. 676 and K. Chinnaswamy Reddy v. State A..p.  3 S.C.R. 412,
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeals Nos. 160) and 171 of 1967.
Appeals by special leave from the judgment
and order dated May 12, 1967 of the Orissa High Court in Criminal Appeal No.
'194 of 1965.
S.N. Anand, for the appellants (in Cr.A. No.
160 of 67).
R.K. Garg, S.C.Agarwal, D.P. Singh, Sumitra
Chakravarty and Uma Dutt, for the appellants (in Cr.A. No.' 171 of 1967).
V.C. Mahajan and R.N. Sachthey, for the
respondent (in Cr.A. No. 160 of 1967).
The Judgment of the Court was delivered by
Mitter, J. These two appeals by special leave are from one judgment of the High
Court of Orissa hearing an appeal from an order of acquittal of 31 persons
accused on charges under as. 147, 323 and 325 of the Indian Penal Code for
being members of an unlawful assembly and having voluntarily caused hurt and
inter alia a grievous one by dislocating a tooth by means of a knife-like thing
of one Jagabandhu Behera, the appellant before the High Court.
The incident is alleged to have happened on
October 4, 1963 at about 11 a.m. in village Anantapur in course of which the
accused persons are said to. have assaulted Jagabandhu Behera with lathis and
sharp instruments. The motive for the crime was said to be enmity arising out
of Gram panchayat election and previous litigation between Jagabandhu Behera
and Khetrabasi Samal, one of the said 31 persons. The first information report
was lodged at 5 p.m.
by one Maguni Charan Biswal who however was
not examined at the trial. In this report ten persons were stated to have taken
part in assaulting and hurting Jagabandhu. More than six weeks thereafter
Jagabandhu filed a complaint before a Magistrate in which he named 31 persons
including those against whom the first information report had been lodged as
his assailants. The complainant stated therein that he had been assaulted so
mercilessly as to render him unconscious and he recovered consciousness in
Anantapur Dispensary where he was treated by a doctor. From there he was taken
to a hospital in Cuttack and was lodged there till November 18, 1962.
The Magistrate 'examined the complainant on
the same day and directed another Magistrate of the First Class to inquire and
report. On January 23, 1963 after getting the report of such inquiry and
hearing the person against whom the complaint was made on their protest
petition, the Magistrate held "that there was a prima facie case against
the accused persons under ss. 147/ 323 I.P.C. except the first ten accused
persons as per the complaint petition since they had already been sent for
trial in 882 G.R. No. 1943 of 1962". He took cognizance against accused
persons from serial Nos. 11 to 31 as per the complaint petition under ss.
The G.R. case had already been started on the
basis of the first information report. On July 12, 1963 the complainant
Jagabandhu Behera filed a petition to club the complaint case along with the
analogous G.R. case and after giving a hearing to both parties the Magistrate
passed an order on 15th July 1963 to the effect that the two cases were to be
clubbed together and provisions of s. 252 Cr.P.C.
were to be followed. The proceedings went on
for an inordinately long time and ultimately on August 23, 1965 the trying
Magistrate delivered a judgment acquitting all the accused. Jagabandhu Behera
filed an appeal to the High Court under s. 417(3) of the Code of Criminal
Procedure and the grounds urged in support of such appeal were substantially
based on the. alleged failure of the Magistrate to take a proper view of the
Before the High Court, a point was taken on
behalf of the respondents challenging the maintainability of the appeal as
against accused 1 to 10 against whom cognizance was taken on the police report.
Among these ten persons are the appellants in the two appeals to this Court. It
was urged that as these ten persons had figured as accused in G.R. Case No.
1943 of 1962 an appeal against their acquittal would not lie at the instance of
the complainant under s. 417(3) but would only be maintainable if preferred
under s. 417(1) by the State Government. It was also contended that mere
clubbing together of the two cases, the G.R. case and the complainant's case,
for joint trial would not change the character thereof so as to convert the
G.R. case into a complaint case.
The High Court over-ruled this objection
mainly on the ground that s. 239 Cr.P.C. allowed the trial of a number of
persons whether accused of the same offence or of different offences if these
were committed in the course of the same transaction. The High Court then
considered the merits of the appeal, examined the evidence of the prosecution
witnesses and took the view that the testimony of prosecution witnesses 1, 2
and 5 who claimed to have witnessed the incident themselves had been discarded
by the Magistrate on extraneous considerations. Sifting the evidence for itself
the High Court held that seven of the accused i.e. the appellants to this Court
were guilty of some of the charges framed against them and passed sentences
ranging from three months to six months in different cases after setting aside
It was contended before us on behalf of the
appellants that the appeal to the High Court was incompetent and in our view
this contention must be accepted. There were two separate cases 883 of which
cognizance' was taken separately. One was started on the basis of a police
report while the other was on the complaint of Jagabandhu Behera. As the
accused in both the cases were said to have committed the offences. in the.
course. of the same transaction, the cases
were clubbed together for the purpose of trial and such a course was clearly
permissible under s. 239 Cr.P.C. That did not however alter the nature of the
cases so as to affect their appealability under s. 417. The two cases retained
their individuality except for the convenience of the trial. If the cases had
ended in conviction they would have had to be separately recorded. The first
ten accused would have had to appeal from their conviction and sentence in the
G.R. case and similarly the remaining accused from the complaint case. If the
State. did not think it proper to direct the Public Prosecutor to present an
appeal to the High Court from the order of acquittal in the G.R. case it might
have been open to the complainant to. invoke the powers of the High Court under
s. 439 of the' Code if proper grounds; for revision were present.
Counsel for the respondents. argued that this
was a case where we should not allow the appeal on the ground that the High
Court had gone wrong in exercising its powers under s. 417(3) of the Code but
should send the matter back to the High Court for disposal according to law
including the powers under s. 439 of the Code. It was said that Jagabandhu
Behera had been beaten up. by a number of persons in a public place in broad
day light and although there might be infirmities in the evidence adduced on
behalf of the prosecution and contradictory statements made by some of the
prosecution witnesses, we should not put an end to the proceedings here but
send the matter back to the High Court for proper disposal.
In our view, the law does not permit such a
course to be adopted on the facts of this case. The powers of the High Court
under s. 439 Cr.P.C. although wide are subject to certain limitations. Section
439 (4) expressly provides that the section shall not be deemed to authorise
the High Court to convert a finding of acquittal into one of conviction.
This Court has had to. examine the
jurisdiction of the High Court under this section on several occasions. In D. Stephens
v. Nosibulla (1) it was pointed out (see at p. 291) that :- "The
revisional jurisdiction conferred on the High Court under section 439 of the
Code of Criminal Procedure is not to be lightly exercised, when it is invoked
by a private complainant against an order of acquittal against which the
Government has a right of appeal under section 417. It could be exercised only
in exceptional cases where the interests of public justice  S.C.R. 284.
881 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 misapprehension the evidence, on
Again in Logendranath Jha & Others v. Polailal
Biswas(1) where the High Court had set aside an order of acquittal of the
appellants by the Sessions Judge and directed their retrial, this Court (see at
p. 681) said :- "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
reappraise 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". In K. Chinnaswamy Reddy v. State of Andhra
Pradesh(2). The court proceeded to define the limits of the jurisdiction of the
High Court under s. 439 of the Criminal Procedure Code while setting aside an
order of acquittal. It was said:
": ..... this jurisdiction should in our
opinion be exercised by 'the High Court only m exceptional cases, when there is
some glaring defect in the procedure and there is a manifest error on a point
of law and consequently there has been a flagrant miscarriage of justice. 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 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 (1)  S.C.R. 676. (2)  3 S.C.R.
885 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".
It may be that a case not covered by any of
the contingencies mentioned above may still arise. But, where, as here, the
appeal court (the High Court in tiffs case) has set aside the order of
acquittal almost entirely on the ground that the Magistrate should not have
disbelieved the three eye witnesses, viz., P.Ws. 1, 2 and 5, the case clearly
falls within the contingencies mentioned in the above decision of this Court.
The High Court judgment does not show that the trial court shut out any
evidence which the prosecution wanted to produce or admitted any in admissible
evidence or overlooked any material evidence.
The Magistrate examined the evidence produced
by the prosecution. According to him, there was strong enmity between the two
parties of Jagabandhu Behera and Khetrabasi Samall and although the incident
was supposed to have: taken place in front of a large number of shops and
before a large gathering, only one person from those shops, P.W. 5 who was a
chance witness occasionally going to the place for the purpose of carrying on
his business in fish, was examined by the prosecution and there was no
explanation for not examining the other witnesses named in the complaint
petition. P.W. 1, one of the witnesses mentioned in the judgment of the High
Court and relied on by it was the complainant's father-in-law and as such a
person interested in the success of the prosecution. Relying on the testimony
of the doctor who had examined Jagabandhu Behera, the Magistrate found himself
unable to accept the evidence of the prosecution witnesses to the effect that
the injury to the tooth was caused by a sharp-cutting instrument in which case
other external injuries could not have been avoided.
The Magistrate was doubtful as to whether the
accused persons had any hand in the commission of the crime and although the
assault on Jagabandhu was a brutal one there was, according to the Magistrate,
no proof beyond reasonable doubt that it was the accused persons who had
committed it. The High Court proceeded to reappraise the evidence of the
witnesses and upset the finding of the Magistrate thereon on the ground that he
"had not taken the trouble of sifting the grain from the chaff".
Clearly such a course is not permissible under s. 439 of the Criminal Procedure
Code. Nor in our opinion the facts, and circumstances of this case warrant the
ordering of a re- trial by the High Court if it felt disposed to exercise
powers under s 423 Cr.P.C. expressly included in s. 439.
Sending the ease back to the High Court can
serve no useful purpose.
As the appeal to the High Court was
incompetent, we allow the appeals and direct the cancellation of their bail
V.P.S. Appeal allowed.