LAL KISHORE JHA v. STATE OF JHARKHAND & ANR.

Case Details & Bench

Court: High Court
Hon'ble Judges: Aftab Alam
R.M. Lodha
Judgment Date: 2011-05-02
Court Decision / Holding: Special Leave Petition dismissed.
Final Disposition: Special Leave Petition dismissed.

Parties to the Case

Appellants / Petitioners

Lal Kishore Jha

Respondents

State of Jharkhand
Anr.

Legal Representation & Advocates

Counsels for Petitioners

• Nagendra Rai
• Smarhar Singh
• Shantanu Sagar

Case Synopsis & Summary

The case concerns a criminal revision arising out of a complaint under Sections 494 and 498A IPC. During the trial, the accused husband, who had already taken a second wife, entered into a settlement with the wife and agreed to take her back. The wife, initially not pressing charges, expressed willingness to live with her husband and his second wife. Before the trial concluded, she moved the trial court alleging breach of the settlement and eviction from the matrimonial home. The trial court recalled her as a court witness under Section 311 CrPC, and her further testimony supported the charges. The trial court convicted the husband under sections 494 and 498A. The appellate court held that recalling the witness was bad and invalid, and that her evidence could not be relied upon to sustain the conviction. In revision, the Jharkhand High Court set aside the appellate order and restored the trial court’s conviction. The Special Leave Petition challenged this sequence. The Supreme Court, by a judgment of Aftab Alam and R.M. Lodha, held that the High Court’s approach was correct and not beyond its revisional jurisdiction under Sections 397 and 401 CrPC, and dismissed the SLP. It noted earlier decisions (Vimal Singh; Mahendra Pratap Singh) as inapplicable to these facts. The conviction stands and the SLP is dismissed.

Provisions of Law Cited

Penal Code, 1860 - ss. 494, 498ACode of Criminal Procedure, 1973 - s. 311CrPC - ss. 397, 401

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the High Court, while disposing of the revision against the order of acquittal, exceeded its jurisdiction by passing a conviction, effectively converting an acquittal into conviction, which could only be done by retrial under CrPC Sections 397 and 401. The counsel relied on Vimal Singh v. Khuman Singh and Anr. and Mahendra Pratap Singh v. Sarju Singh to argue that revisions cannot turn acquittals into convictions. The settlement and recall of the complainant under 311 CrPC, on the basis of which the trial court relied to convict, was improper; hence the appellate court’s approach was correct. The High Court’s decision, in the petitioner’s view, properly applied the law of revisional jurisdiction and did not encroach on the realm of retrial.

Contentions of Respondents

The respondents submit that the High Court correctly exercised its revisional jurisdiction under CrPC Sections 397 and 401. The recall of the witness under Section 311 CrPC, given the circumstances of the settlement and breach alleged, was within the permissible scope of inquiry for purposes of the conviction. The appellate court’s view that the recall order was not a valid basis for conviction is argued to be erroneous, and the High Court’s restoration of the trial court’s conviction aligns with the statutory framework. The cited decisions (Vimal Singh; Mahendra Pratap Singh) are urged to be distinguishable and not applicable to the present facts.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Vimal Singh v. Khuman Singh and Anr.	(1998) 7 SCC 223	Distinguished	Cited and noted as inapplicable to the present facts/revisional context.
Mahendra Pratap Singh v. Sarju Singh	AIR 1968 SC 707	Distinguished	Cited and noted as inapplicable to the present facts/revisional context.

Extracted Judgment Text

Exact text extracted from official judgment records.

# [2011] 5 S.C.R. 1015 # LAL KISHORE JHA A _v._ # STATE OF JHARKHAND & ANR. (SLP (Crl.) No. 4848 of 2011) ## MAY 2, 2011 B ## [AFTAB ALAM AND R.M. LODHA, JJ.] - - _Penal Code, 1860_ ss.494, _498A Complaint by wife_ - _under During trial, accused-husband entered into settlement and in terms of settlement, he accepted to take complainant back even though he had taken ·a second wife_ - _in the meanwhile On examination, complainant did not press the charges but expressed her willingness to live with_ - _her husband and his second wife However, before the conclusion of trial she filed petition before the trial court stating that accused-husband had breached the terms of settlement·_ - _and thrown her out of his house Trial court recalled her for re-examination_ as _a court witness_ u/s. _311 and she fully supported the a/legations made by her in the complaint:...._ - _Conviction of the accused_ u/ss. _494 and 498-A Appellate court held that the order passed by trial court, recalling the complainant for examination_ as _a court witness_ was _bad and invalid and her evidence_ as _a court witness could not be taken into account for recording the finding of guilt against the_ - - _accused Revision High Court set aside the order of the_ - _appellate court and restored the order of the trial court On appeal, held: In the facts and circumstances of the case, High court took the correct view of the matter and its order cannot be said to be excess of the revisional jurisdiction_ u/ss. _397 and_ - - _401 CrPC Conviction upheld Code of Criminal Procedure, 1973_ - ss. _397 and 401_ - _Revisional jurisdiction_ - _Scope of._ C D E F G The wife-complainant filed. a complaint against her husband-petitioner under Section 494 and 498A IPC. During the trial, the petitioner entered into a settlement . 1-i 1015 ## 1016 SUPREME COURT REPORTS (2011) 5 S.C.R. A with complainant. In terms of the settlement, he accepted to take the complainant back at his house even though he had taken a second wife in the meanwhile. The complainant was examined before the trial court and she did not press charges and showed her willingness to live s with the petitioner and his second wife. Before the conclusion of trial, she filed a petition before the trial court stating that the petitioner had breached the terms of settlement and thrown her out of his house. The trial court recalled her for re-examination as a court witness c under Section 311, Cr.P .C. On her examination as a court witness, she fully supported the allegations made by her in the complaint. The trial court convicted the petitioner under Section 494 and 498A IPC. The appellate court held that the order passed by trial court, recalling the complainant for examination as a court witness was bad D and invalid and her evidence as a court witness could not be taken. into account for recording the finding of guilt against the accused. In revision, the High Court set aside the order of the appellate court and restored the order of the trial court. Hence the special leave petition. E Dismissing the special leave petition, the Court Held: : In the facts and circumstances of the case, High court took the correct view of the matter and its order cannot be said to be excess of the revisional F jurisdiction u/ss.397 and 401 CrPC. (Para 10) [1018-F-G] _Vimal Singh v. Khuman Singh and Anr._ (1998) 7 SCC 223; _MahendraPratap Singh v. Sarju Singh_ AIR 1968 SC 707 - held inapplicable. G Case Law Reference: (1998) 7 SCC 223 he:d inapplicable Para 3 AIR 1968 SC 707 held inapplicable Para 3 CRIMINAL APPEALLATE JURISDICTION: Special Leave H Petition (Crl) No. 4848 of 2011. LAL KISHORE JHA..v. STATE OF JHARKHAND & 1017 ANR. From the Judgment & Order dated 19.2.2010 of the High A Court of Jharkhand at Ranchi in Cr. Rev. No. 933 of 2008. Nagendra Rai, Smarhar Singh, Shantanu Sagar (for T. Mahipal) for the Appellant. The following Order of the Court was delivered B ## ORDER 1. Delay condoned. 2. ·Heard Mr. Nagendra Rai, learned senior advocate, appearing for the petitioner. 3. The petitioner is convicted under Sections 494 and 498A of the Penal Code and is sentenced to rigorous imprisonment for two years on each count. The sentences are directed to run concurrently. . . 4. Mr. Rai submitted that the· petitioner was acquitted by the appellate court and the High Court, while disposing of the revision filed against the order of acquittal, exceeded. its jurisdiction in passing an order that resulted into the conviction of the petitioner. He submitted that in exercise of the powers under Section 401 of the Code of Criminal Procedure, 1973, an order of acquittal cannot be converted into an order of conviction and what the High Court could, at best do was to order a retrial of the petitioner. In support of the submission, he relied upon the decisions of this Court in _Vimal Singh v. Khuman Singh_ & _Anr.,_ (1998) 7 SCC 223 and _Mahendra Pratap Singh v. Sarju Singh,_ AIR 1968 SC 707. 5. We find no merit in the submission of Mr. Nagendra Rai and we are satisfied that the decisions relied upon by him have no application to the facts of this case. All that the High Court has done is to set aside the order passed by the appellate court and restore the order of conviction and sentence passed by t~e trial court. C D E F G 6. At this stage, it will be useful to take a brief look at the facts and circumstances that led the High Court to interfere in H (2011] 5 S.C.R. ## 1018 SUPREME COURT REPORTS - A the matter. While the trial was going on, the accused purported to enter into some sort of a settlement with the complainant (his wife). In terms of the settlement, he accepted to take her {the complainant) back at his house even though he had taken a second wife in the meanwhile. Hence, when the complainant - s was examined before the trial court she did not press the charges but expressed her willingness to live with her husband and his second wife. Later on, however, before the conclusion of the trial she filed a petition before the trial court stating that the accused (the husband) had breached the settlement and - c thrown her out from his house. 7. In those circumstances, the trial court recalled her for re examination as a court witness under Section 311 of the Cr.P.C. On her examination as a court witness, she fully supported the allegations made by her in the complaint. D Eventually, the trial court convicted the petitioner under Sections 494 and 498-A of the Penal Code. 8. In appeal, the appellate court held that the order passed by the trial court, recalling the complainant for examination as a court witness was bad and invalid and her evidence as a E court witness could not be taken into account for recording the finding of guilt against the petitioner. 9. In revision, the High Court set aside the order of the appellate court on this score and consequently the order of the F trial court stood restored. 10. We are fully satisfied that in the facts and circumstances of the case, the High Court took the correct view of the matter and its order cannot be said to be excess of the revisional jurisdiction under Sections 397 and 401 of the Cr.P.C. G 11. We find no merit in the special leave petition. It is dismissed. D.G. Special Leave Petition dismissed.