Biswanath
Ghosh Vs. State of West Bengal & Ors [1987] INSC 45 (16 February 1987)
Sen,
A.P. (J) Sen, A.P. (J) Eradi, V. Balakrishna (J)
CITATION:
1987 AIR 1155 1987 SCR (2) 305 1987 SCC (2) 55 JT 1987 (1) 555 1987 SCALE
(1)435
ACT:
Constitution
of India, 1950, Article 136--Interference by
Supreme Court with an order of acquittal recorded by the High Court at the
instance of a private complaint, permissibility.
Code
of Criminal Procedure, 1973, section 385, scope--Appeal disposed of in the
absence of the records from the Sessions Judge and when even notices for the
grant of bail were not issued. solely relying on the concession made by the
Public Prosecutor as to the discrepancy in the number of injuries found on the
deceased and the witnesses' deposition is vitiated and bad in law.
HEAD NOTE:
Respondents
2 to 9 preferred an appeal to the Calcutta High Court against their conviction
and sentence dated 19.3. 1984. On 22.3. 1984 a Division Bench of the High Court
admitted the appeal but did not grant bail on that date.
Within
a fortnight thereafter, i.e. on 12.4. 1984, the application for bail moved by
the Respondents came up before the Bench for consideration. The appeal was not
set for hearing on that day. The records which had been requisitioned from the
Court of the Additional Sessions Judge had not been received and notices of the
bail had not been issued. Acting on an alleged concession made by the Public
Prosecutor, the Bench allowed the appeal itself and acquitted the respondents.
The appellant-complainant's Special Leave Petition No. 2025/84 dated 15.10.
1984 against the said orders of acquittal was allowed to be withdrawn to move
the High Court for review. The appellants' review petition dated 5.12. 1984
having been dismissed on the ground that the High Court had no power to review
its judgment under the Code of Criminal Procedure, 1973, the appellant has now
come in appeal by special leave.
Allowing
the appeal, the Court,
HELD:
1. Normally, the Supreme Court, as a matter of practice, is reluctant to
interfere with an order of acquittal recorded by the High Court at the instance
of a private complainant, but the circumstances of the case are such that there
is no other alternative but to interfere in this 306 case. The procedure
adopted by the High Court was not in consonance with the procedure established
by law and has resulted in flagrant miscarriage of justice. [306H; 307A] Under
Section 385 of the Code of Criminal Procedure, 1973 it was obligatory for the
High Court to have fixed a date for the hearing of the appeal and sent for the
records of the Court of Sessions and thereafter hear the parties on merits. It
does no credit to any branch of administration of justice that an appeal
against conviction or acquittal should be allowed without the Appellate Court
having the records before it and without pursuing the evidence adduced by the
prosecution. Assuming that the learned Public Prosecutor conceded that there
was no evidence, the High Court had time to satisfy itself upon perusal of the
record that there was no reliable and credible evidence to warrant the
conviction of the accused under s. 148 and s.302 read with s. 149 of the Indian
Penal Code. [308B-E]
CRIMINAL
APPELLATE JURISDICTION: Criminal Appeal No. 94 Of 1987.
From
the Judgment and Order dated 8.2.1985 of the Calcutta High Court in Crl. A.No. 112
of 1984.
Parijat
Sinha and B.D. Ahmed for the Appellant.
K.C. Aggarwala
and P.K. Chakravarthy for the Respondents.
The
Order of the Court was delivered:
ORDER
Special' leave granted. Arguments heard.
The
short question involved in this appeal is whether the High Court was justified
in allowing the appeal preferred by the accused persons against their
conviction under s. 148 and s.302 reads with s. 149 of the Indian Penal Code,
1860 without having the records of the Court of Sessions before it and without
perusal of the evidence adduced by the prosecution.
Normally,
this Court, as a matter of practice, is reluctant to interfere with an order of
acquittal recorded by the High Court at the instance of a private complainant,
but the circumstances of the case 307 are such that there is no other
alternative for us but to interfere. We wish to mention that earlier the Court
had in Special Leave Petition (Crl.) No. 2025/84 dated 15.10.1984 allowed the
petitioner-complainant to withdraw the petition to move the High Court for
review. The petitioner on 5.12. 1984 filed an application for review but the
High Court dismissed the same by its order dated 8.2.1985 on the ground that it
had no power to review its judgment under the Code of Criminal Procedure, 1973.
The complainant has accordingly applied for special leave. The application is
much belated but we have no other alternative but to interfere.
The
facts. Aggrieved by their conviction and sentence under s. 148 and s.302 read
with s. 149 of the Indian Penal Code by the Additional Sessions Judge, 1st
Court, Burdwan by his judgment and sentence dated 19.3.1984, the respondents
preferred an appeal to the Calcutta High Court. On 22.3.1984 a Division Bench
of the High Court (P.C. Barooah and S. Chakravarty, JJ) admitted the appeal but did not grant bail to the
respondents on that date and reserved them liberty to apply for bail later. It
directed that the records be requisitioned from the Court of Sessions. Within a
fortnight thereafter i.e. on 12.4.1984, the application for bail moved by the
respondents came up for consideration. On that day the appeal was not listed
for heating. The records which had been requisitioned from the Court of the
Additional Sessions Judge had not been received and notices of the bail had not
been issued. Instead of dealing with the application for bail, the learned
Judges appeared to have acted on an alleged concession made by the learned
Public Prosecutor and acquitted the respondents.
The
learned Judges during the course of their order observed that the contention on
behalf of the respondents in support of their bail application was that the
alleged dying declaration made by the deceased Jagannath Ghose having been
disbelieved by the learned Additional Sessions Judge, no reliance could be
placed on the testimony of the eye-witnesses as the place of incident was not
visible from where they are alleged to have seen the occurrence and also that
about 100 persons had surrounded the victim and as such it was not possible to
definitely state that only the 8 accused i.e. the respondents were involved.
After stating this, the learned Judge observed:
"The
learned Public Prosecutor in his usual fairness has pointed out that although
the witnesses spoke of 4/5 injuries, the deceased had actually 27." 308
and added that this was a fit case where benefit of doubt should be given to
the accused and accordingly said that no useful purpose would be served in
having a paper-book prepared and keeping the accused in further agony. In that
view, the learned Judges allowed the appeal, set aside the conviction and
sentence passed on the respondents on their conviction under s. 148 and s.302
read s. 149 of the Indian Penal Code.
We are
constrained to observe that the procedure adopted by the High Court was no in
consonance with the procedure established by law. Under s.385 of the Code of
Criminal Procedure, it was obligatory for the High Court to fix a date for the
hearing of the appeal and then send for the records of the Court of Sessions
and hear the parties on merits. There was no warrant for the procedure adopted
by the learned Judges in disposing of the appeal in this chavaller manner. It
does no credit to any branch of administration of justice that an appeal
against conviction should be allowed without the Appellate Court having the
records before it and without perusing the evidence adduced by the prosecution.
To say the least, there has been a flagrant carriage of justice. It may be, as
the High Court records in order, that the learned Public Prosecutor conceded
that there was no evidence but then the High Court had to satisfy itself upon
perusal of the records that there was no reliable and credible evidence to
warrant the conviction of the accused under s. 148 and s.302 read with s. 149
of the Indian Penal Code.
The
result therefore is that the appeal succeeds and is allowed. The order of
acquittal recorded by the High Court is set aside and we direct the High Court
to admit the appeal to its file and dispose of it afresh notice to the parties
and after the records requisitioned are received by it. After the respondents
nos.-2-9 are taken into custody, they may apply to the High Court for being
enlarged on bail.
The
High Court will deal with the application on its merits.
S.R.
Appeal allowed.
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