AKALU AHIR v. RAMDEO RAM

J.lO AKALU AHJR AND OTIIERS _v._ RAMDEO RAM _May_ I, 1973 [K. K. MATHEW AND I. D. DUA, 'JJ.] A _Code_ _of_ _Crimi11al_ _Procedure (Act 5_ _of_ 1898), _Ss._ 417, 4~5, _439-lflgh_ B _<:ourt's power_ _of_ _revision in cases_ _of_ _acquittal by trial_ _court-Scope_ _of._ _Weight_ _of_ _e1·idence-E11niity between parties_ _of_ _cb111plai11t_ _and_ _accused-_ _Effect of._ The trial ·court, on a consideration of the evidence, acquitted the appellants of the offences under Ss. 307 and 307 /109 I.P.C, The State did not file any appeal against the order of acquittal but the Victim invoked the revisional jurisdiction of the High Court. under Ss. 435 and 439 Cr.P.C. The High Conrt .allowed the revision, set aside the acquittal and remitted the case for retrial. Allowing the appeal to this Court, ##### .. , ' ## "' HELD : An unrestricted right of appeal from acquittal is specifically conferred only on the State and a private complainant is given the right of appeal -0nly \Vben the criminal prosecution was instituted on his complaint and then also subject_ to special leave by the High Court. A private con1plainant can -0nly claim a right, in co1nmon - \Yith all aggrieved parties in a criminal pro.ceeding, to invoke the revisional jurisdiction of the High Court for redress against miscart·iage of justice arising from an erroneous order of acquittal; '1ut 1he High Court's power in. such cases is circumscribed by the provisions of Ss. 417 and 439 .. CrcP.C. and also by the fundamental principles of criminal jurisprudence. Jt is only in glaring cases of injustice resulting from some viola1ion of fundanlental principles of la\v by the trial court that the High Conn is empowered to set aside the order of acquittal and direct a retrial of the :acquiue·d accused. From the \'ery nature of this pawer it should be exercis· ed only in exceptional cases and \Vith great care and caution. Trials are not to be lightly se.t aside' \vhen.such orders expose the accused persons to a fresh trial \Vith all its consequential harassment. The pO\\'er of revision conferred ·en the High Court by Ss. 435 and 439 Cr.P.C. is an extraordinary discretionary powCr vested in the superior court to be exercised in aid of justice. The High Court has been invested \Vith this power to see that justice is done in accord· _ .ance \vith the recognised rules of criminal jurisprudence and that the subordi ### c D E F G H nate courts do not exceed their jurisdiction or abuse the power conferred on them by la\v. As a general rule, this po\Ver, in spite of the wide language of 1he sections does not contemplate interference . with conclusions of fact in the absence of serious legal infirmity nnd failure of justice. This power is certainly not intended to be exercised as· to make one portion of the Criminal Procedure Code conflict with another as would be the case when. in the garb of exercising revisional power, the High Court in effect exercises the power of :appeal in face of statutory prohibition. In revision, the High Court is expreMly prohibited from converting acquittal into a COD.'\'iction. It makes it- ~rcfore all the more incumbent on the High Court to sec that it does not convert the 'finding of acquittal into one of conviction by the indirect method of ordering a retrial. The High Court when approached by a private party for exercising its power of revision in the case of an order of acquittal should therefore refrai-:i from interfering except when there is a glaring le~al defect of a serious nature which has resulted in grave failure of justice. The High Court is not expected to act as if it is hearing an apptal in spite of the \Vide language under s. 435 which emoowers it to satisfy itself as to the correctllea, lcplity or propriety of a finding, sentence or order and as to. the regularity of any proceeding, and also in spite of the fact that under s. 439 it can exercise _inter_ _alia_ the power conferred on a court of appeal under _s. 423, Cr.P.C. The power being discretionary. it is to be exercised judicially and not arbitrarily. Judicial discretion means a discretion which is informed by tradition. methodiscd · by analogy and disciplined by system. [133F-G, H; 134A-D, E-H-13SA-C] **B** ### c **D** E ( 1) The appraisal of the evidence by the trial judge in the instant.case is not perfect or free from.flaw and a _court of·appeal_ may well have felt jmtilled **in** **dtsagreei.Dg** **with** **his** **conclusions.** **But** **it** **does** **not** **follo\V** **that** _**on**_ _**re1·ision**_ _**by**_ _**.a private complainant**_ **'the High Court** **is** **entitled** **to** **rcappraist; the evidtllCC** **for** **itself** **as** **if** **it** **is** **acting as a** _**court of appeaf**_ **and then order a retrial.: [137.'\.-B]** _(21_ The expression of opinion by the High·Court on the present c•idence **with** **respect to the commission** **of** **alleged** **offenCe** **would not . be** **binding and** **would not** **be** **relevant** **in** **a retria1. But** **it** **may** **nevertheless leave an uncon,Oous** impression on the mind of the Court holding the fresh trial. fl37C-D] **(3)** **Enmity between the _complainant's party and the -accused is usually a** **double-edged weapon providing** **motive** **both** **for** **the** **offcnCe** **as well as** **for** **false** **implication.** **The** **evidence,** **in** **such cases,** **bas** **to ... be scrutinised** **with** **care** **so** **that** **neither the** **guilty"** **party escapes** **on** **the plea** **of** **enmity** **nor** **an** **innocent** perum gets·wrongly convicted on that basis .. [131G-Hl . Cn1i.11NAL APPEL.LATE Jun1so1cnoN : Criminal Appeal No. 40 of l970. . . Appeal by special leave from tbe judgment and order October 14, 1969 of the Patna High Court ill Criminal Revision No. 190 of 1969. . _B._ _P._ _Singh,_ for the appellant.· _D._ _Goburdhan,_ for the respondents. The Judgment of the Court was delivered by AKALU AHIR _v._ RAMDEO _(Dua,_ /.) 131 **'1** **n the _present· case the High -Court** **ha.S** **re-weighed** **the** **-evidence** **from** **its** **O\\'D** **point of** **view and though** **it** **noticed the, correct legal** ~tion **regarding the** **limits** **of its** **jurisdiction** **to** **interfere** **with** **an** **order** **of acquittal.** **it does-not seem** to have followed those rules. [136E-F] ·· . _D. Stenbens_ v. _Nosibolla._ (1951) S.C.R. 284. _JogentJranath Iha_ v. _Polai/al_ _Biswas._ (19511 S.C.R. 676, _K. C. Reddy_ v. _State_ _of_ _Andhra Pradesh;_ (19631 3 S.C.R. 412, Mohend~a _Pratap Singh_ v. _Sarju Singh_ _&_ _Another_ [19681 2 S.C.R. 287, _U._ _J._ _S._ _Chopra_ v. _State_ _of Bombay,_ (19561 S.C.R. 94 and _Amar_ _Chand_ '_**Aggarwal**_ **v.** _**Sha11Ji**_ _**Bose.**_ **19U** **A.I.R. S.C. 799,** **followed.** ## . DUA, J : This is an appeal by special leave. The three appel**F** lants and one Ramchander Kann were tried in the court of the 2nd Assistant Sessions Judge, Chapra for offences under ss. 307 and 307_/ 109, I.P.C. Akalu Ahir and Chandrika Singh were charged under s. 307 I.P.C. for. firing pistol shots and i:un shots at Ramdeo Ram at 11.00 p.m. on June 13, 1966, whereas Jagarnath and Ramchander Kanu were charged under ss. 307/109, I.P.C. for·having abetted the commission of the aforesaid offence. **G** **H** The occurrence is stated to~ be an off-shoot of election rivalry arising out of the election for the office of Mukhia _of village Arakpur. Indeed the enmity between the two rival gronps was of lon.z standing and is not denied. But enmity as usual is a double-edged weapon, providing motive both for the offence as well as for false implication. The evidence in such a case, has, therefore, to be scrutinised with care so that neither the guilty party wrongly escapes on the plea of enmity, nor an innoce.Jlt ·person gets wrongly convicted on that basis. In this case there were three eye witnesses. Ramdeo Ram, the victim of the fire shots, appeared as **P. W .1.** Puljharia as **P.** W. 9 and ###### 132 SUPREME COURT REPORTS [ 1974 j 1 S.C.R. ./ Ploughman Bhuidhar Chamar as P. W. 10. The ·trial Judge after consTderincr the evidence· oi:t the record. felt no doubt about the fact that Ramdeo Ram had been injured by gun shots, but he did not feel impressed by the prosecution evidence w~th respect to the ~ann~r in which the occurrence had taken place, with the result ·that m _his opinion, the prosecution had not been able to prove the charges agamst the eccused persons beyond reasonable· doubt. The State did not file any ~ppcaJ against the order of acquittal. Ramdeo Ram, the victim of the gun shots, however, presented in the Hiuh Court in January, 1969 a revision petition under ss. 435 A n and 439, Cr.P.C. from the order acquitting the four accused persons. From a note on the printed application for revision, it appears that the name of Jagamath Kanu was expunged from the array of ###### respondents in the revision: vide, court's order dated Ju~y 3, 1969. ·c The High Court at the ·outset noticed that the scope of mterference · in revision at the .instance of private parties in cases of acquittal is very limited. In this connection, it referred to the followin;;: four decisions of this Court :- (i) _D._ _Stenbens_ v. _Nosibol/a(_ _[1]_ _)_ # (ii) logendranath Iha v .. Polai/al Biswas( [2 ] ) D (iii)· _K._ C. _Reddy_ v. _State_ _of Andhra Pradesh(•)_ and (iv) _Mohendra Pratap Singh_ v. _Sarju Singh_ & _another(<)_ After quoting from _K._ C. _Reddy_ (supra), the categories of cases· attracting interference by a High Court on a private ·party's revision and the observation that the said list was not exhaustive of all the circumstances in which a High Court may interfere and that other E defect in the jndgment under .revision mnst be analogous to those actually indicated, the . High Court proceeded to consider the case, professedly keeping those limits in view. It then criticised the appraisal of the evidence by the trial court and found fault with several observations made by that court in such appraisal. The reasons recorded by the trial court for rejecting the evidence of P. W .1, Ramdeo Ram and of his wife Pnljharia, P. W. 9, were considered by the High F Court to be "much too infirm". The High Court also felt that the evidence of Ramdeo Ram had been misread by the trial court when it observed that his statement to the police was not in conformity \vith ·his evidence in court.·. The result of this unfortunate misreading of the ·evidence, in the opinion of the High Court, was that the evidence of an important witness like Ramdeo Ram had not received proper consideration ·at the hands of the trial Judge: 111e contradictions G found ·by the trial Court in the evidence of Puljharia, P.W. 9 was also not considered by the High Court to be material as in its view such contradictions h"ad no bearing on the manner of the occurrence bnt could only have some relevance to the question of the identity of the culprits. Feeling dissatisfied with the manner in which the trial court ·had sought to explain away the evidence of two out of three eye witnesses, the High Court felt that the acquittal of the accused H (l} [1951] S.C.R. 284. (2) [1951] S.C.R. 676. (3) [1963] 3 S.C.R. 412. (4) (1968]2 S.C.R. 237 •. A B ### c D E F G H ,, AKALU AHIR _v._ RAMDEO _tDua,_ _!.)_ 133 could not be allowed to stand. Considering th~ to be an exceptional case, the High Court allowed the revision and, setting aside the acquittal, sent the case back for re-trial. On appeal in this Court. it was contended that the High Court had over-stepped the limits of its power in dealing with revisions against orders of acquittal at the instance of private parties It was further contended that as a court Of revision, the High Court was not justified in examining the evidence as if it was a court of appeal and was. as such, required to see if the evidence had been correctly appraised by the trial court. Finally it was strenuously pressed that order directing a re-trial on the facts and circumstances of this case was not only uncalled for but was calculated to result in grave injustice to the appellant. Turning first to the legal position, it is necessary to bear in mind that an appeal is a creature of statute and there is no inherent right of appeal. Section 404, Cr.P.C. expressly so provides. In _U.J.S._ _Chopra_ v. _State_ _of_ _Bombay(')_ while discussing the historical background of s. 439(6), Cr.P.C., S. R. Das, J., as then he was, pointed out that in England there is no provision for an appeal by the Crown against an order of acquittal and in our country s. 407 of the Code of Criminal Procedure 1861 prohibited an appeal from acquittal. The Code of Criminal Procedure 1872 by s. 272 permitted the Government to file an. appeal from acquittal and this was repeated in s. 41 7 of the Code of Criminal Procedure 1882 and again in 1898. The object of limiting the right of appeal against the orders of acquittal to the State Government was to ensure that such appeals are filed only when there has been miscarriage of justice and not when inspired by vindictiveness. A private party had, therefore, no right of appeal. The aggrieved party could, however, move the authorities concerned to consider the question -of presenting an appeal against acquittal. This indicates that punish- . ment for offences is normally the responsibility of the State as the guardian of law and order. Thus, section 417, . Cr.P.C. before its amendment by Act 36 of 1955 empowered only the State Government to direct the Public Prosecutor to present an appeal from an order of . acquittal. In 1955, however, this section was amended and it was provided, _inter alia,_ that where an order of acquittal is passed in a case instituted upon c.omplaint the. complainant may present an appeal provided that the High Court on his application grants him special leaYe to do so. Even in case when the complainant has a right to present an appeal against acquittal, his failure in securing special leave would under s. 417 ( 5) bar the State Government also from appealing. This reflects the Parliament's anxiety not to expose the orders of acquittal to plurality of appeals by preserving to the State as guardian of law and order, a distinct right of appeal wholly unaffected by the result of the complainant's right to appeal. Now adverting to the power of revision conferred on a High Court by s. 439 read withs. 435, Cr. P .C. it is an extraordinary discretionary power vested in the superior court to be exercised in aid (!) [1956] 2 S.C.R. 94. _134_ SUPREME COURT REPORTS [ 1974 j I s.C.Jt. of justice : in other words, to ~et right grave injusti~e. . Th_e High Court has been invested with this power to see that JUS!ice ts done in accordance \\ith the recognised rules of criminal jurisprudence and that the subordinate courts do not exceed their jurisdiction or abuse the power conferred on them by Jaw. As a general rule, this power, in spite of the wide Iangua~e of ss. 435 ~d 439, Cr. ~. C: does not contemplate interference with the conclus1ons of fact m the absence of serious legal infirmity and failu.re of justice. This po~r is certainly not intended to be so exerc1Sed as to make one portion of the Code of Criminal Procedure conflict with another, as would seem to be the case when in the garb of exercising revisional power, the High Court in effect exercises the power of appeal in face of statutory pro hibition. The unrestricted right of appeal from acquittal is specifically conferred only on the State and a private complainant is given this right only when the criminal pros~cution was institu~ed on his co~plaint and then also subject to special leave by the High Court. It 1s further provided in s. 439(5), Cr. P. C. that where no appeal is brought in a case i11 which an appeal is provided, l)O proceeamgs by way of revision would be entertained at the instance of the party who could have appealed. The State Government, therefore, having failed to appeal, cannot apply for revision of an order of acquittal. Again 0n revision, the High Court is expressly prohibited from converting an acquittal into a conviction. Considering the problem facing the Court in this case in the background of this scheme, the High Court when approached by a private party for exercising its power of re· vision from an order of acquittal, should appropriately refrain from interfering except when there is a glaring legal defect of a serious nature which has resulted in grave failure of justice. It is not ex pected to act under ss. 435 /439, Cr. P .C. as if it is a hearing on appeal in spite of the wide language under s. 435 which empowers it to satisfy itself as to the correctness, legality or propriety of a finding, sentence or order and as to the regularity of any proce<ding and also in spite of the fact that under s. 439 it can exer,·ise _inter_ _alia_ the power conferred on a court of appeal under s. 4'.L, Cr.P.C. The power being discretionary, it has to be exercised judiciousiy, and not arbitrarily.· Judicial discretion, as has often been said, means a dis cretion which is informed by tradition, methodised by analogy and disciplined by system. In _hnar_ _Chand Aggarwal_ v. _Shanti_ _Bose(I),_ this Court said that normally the jurisdiction of the High Court under s. 439, Cr.P.C. is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on point of law and there has consequently been flagrant miscarriage of justice. In the background of the position just stated a private complai1_1ant ca~ ?nly claim a right, in common with all aggrieved par!Jes _m_ a cnmmal proceedings, to invoke the revisional jurisdiction of the High Court for redress against miscarriage of justice arising from an err.one~ms ord~r of acquittal. The High Court's power in such cases 1s c1rcumscnbed by the provisions of ss. 417 and 439, Cr.P.C. and also by the fundamental principles of our criminal juris (J) A.I.R. 1973 S.C. 799. B ## c D E F G H AKALU AHIR _v._ RAMDEO _(Dua,_ _!.)_ 135 ###### **pru<l.:nce. Ii is only in glaring cases of injustice resulting from some** violation of fundamental principles of law by the trial court in the course of trial, that the High Court is empowered to set nside the order of acquittal and direct the re-trial of the acquitted accused · persons. From the very nature of this power, it should l::c exercised in exceptional cases and With great care and caution. Trials are not to be lightly set aside whom such orders expose the accused persons to a fresh trial· with all its consequential harassment. This matter is not _res integra_ and has indeed been dealt with ·by this Court at least in the four cases noticed by the High Court. In _K,_ C. _Reddy_ (supra), this Court examined two of its earlier decisions in D. _Stenbens_ (supra) and _Jogendranath_ _!ha_ (supra) and after quoting certain passages from those decisions observed as follows : "These. two· cases clearly lay down the limits of the High Court's jurisdiction to interfere- with an order of acquit **tal** _**in**_ **revision; in particular,** _**Jogendranath Jha's**_ cas~ **stresses** that it is not open to a High Court to convert a finding of **acquittal into** **_one** **of** **conviction in** **view_** **of** **the pfovisions** of s. 439(4) and that the High Court cannot do this even _in-_ directly 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 complied with sub-s. ( 4) by directing only a re-trial 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 !11e judgment of the High Court. In that connection this Court observed that there could be littl? doubt that the dice was loaded against the appellants of that case and it might prove diffi•ult 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 cir**cumstances of the case** **in- general."** . This Court then proceeded to observe that the High Court is certainly entitled in revision to set aside the order of acquittal even at the instance of"private parties, though the State may not have thought fit to appeal, but it was emphasised that this jurisdiction,;hould be exercised only in exceptional cases when "there is some glarinJ~ defect in the procedure or there is a manifest error on a pqint of law and consequently there has been a flagrant miscarriage of justice." In face of prohibition in s. 439(4) Cr.P.C. for the High Court to con· vert a finding of acquittal into one of conviction, it makes 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 re-trial. _No_ doubt, in the opinion of this Court, ·no criteria - for determining such exceptional cases which would cover all contin gencies for· attracting the High Court's power of ord~ring re·trial can be laid down. This Court, however, by way of illustration, indicated #### • A _B_ #### c _1_ _**D**_ j. F G #### _'?_ ###### • **H** 136 SUPREME COURT REPORTS [ 1974 j 1 $.C.R. the following categories of cases which would justify the High Court in interfering with a finding of acquittal in revision :(i) Where the trial court has no jurisdiction to try the case, but has still acquitted the accused; (ii) Where the trial court has wrongly shut out evidence which the prosecution wished to. produce; (iii) Where the appellate court has wrongly held the evidence which was admitted by the trial court to be inadmissible; (iv) Where the ·material evidence has been ever-looked either by the trial court or by the appellate court; and ( v) Where the acquittal is based on a compounding of the offence which is invalid under the law. These categories were however, merely illustrative and it was clarified that other ca'l!!S of similar nature can also be properly held to be of exceptional nature where the. High Court can justifiably interfere with the order of acquittal. In _Mohendra_ Prat~ _Singh_ (supra) the position was again reviewed and the rule laid down in the three earlier cases reaffirmed. In that case the reading of the judgment of the High Court. made it plain that it had re-weighed the evidence from its own point of view and reached inferences contrary to those of the Sessions Jud_ge on almost every point. This Court pointed out that it was not the duty of the High Court to do so while dealing with an acql!ittal on revision, when the Government had not chosen to file an appeal against it. "In other words" said this Court, "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" In the present case also we feel that the High Court has reweighed the evidence from its own point of view and though at the outset it noticed the correct legal position arid expressly acknowledged the limits within which it was called upon to decide whether or not to interfere with the order of acquittal, in actual practice, it does not seem to have attended to the rules laid down by this Court in the four decisions noticed by it. As observed in _D._ _Stenben's_ case (supra), the revisional jurisdiction under s. 439, Cr.P.C. is not to be lightly exercised when invoked by a private party against an order of acquittal against which the Governmeet has a right of appeal under s. 417. 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 record. Again, as pointed out in _logendranath lha's_ case (supra), when s. 439( 4) specifically excludes the power to "convert a finding of acquittal into one of conviction" the High Court cannot, when dealing with a revision petition by ~ private party against an order of acquittal, in the absence of any error on a point of law, i:.e-appraise the evidence and reverse the find_ings of fact .on which the ac9uittal was based ~Y resorting to the device of s!oppmg ~ort of findmg the accused gmlty and passing sen t~nce on him. This would be a suuterfuge impermissible in our judicial process. A B #### c D E F G H A B ## c D AKALU AHIR _v._ RAMDEO _(Dua,!.)_ 137 No doubt, the appraisal of evidence by the trial Judge [r. the case in hand is not perfect or free from flaw and a court of appeal may well have felt jnstified in disagreeing with its conclusion, bnt from this it does not follow that on revision by a private complainant, the High Court is entitled to re-appraise (he evidence for itself as if it is acting as a court of appeal and then order a re-trial. It is unfortunate that a serious offence inspired by rivalry and jealousy in the matter of election to the office of village Mukhia, ~hould go unpunished. But that can scarcely he a valid ground for ignoring or for not strictly following the law as enunciated by this Conrt. There is also another aspect of the mauer. The High Court has evaluated the evidence on the existing record. On re-trial the trial court will have to consider the evidence led at the re-trial and arrive at its conclusion on that record. The expression of opinion on the present evidence with respect to the commission of the alleged offence would not be binding and would, therefore, hardly be relevant. But it may nevertheless leave an unconscious impression on the mind of the court holding the fresh trial. This aspect also seems to lend some support to the view that normally re-trial should not be ordered unless there is some infirmity rendering the trial defective. In view of the foregoing discussions, in our opinion, the High Court had committed, a serious error in directing re-trial on the basis of its re-assessment af the oral evidence on the record, while exercising its power of revision at the instance of a private complainant. We are, therefore, constrained to ailow this appeal, quash the im• pugned order of the High Court and restore that of the trial conrt. V.P.S. _Appeal_ _allowed._