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Madhya Pradesh High Court

The State Of Madhya Pradesh vs Birendra Mishra on 1 March, 2017

 CRR-397-2016
(THE STATE OF MADHYA PRADESH Vs BIRENDRA MISHRA)



01-03-2017


        Shri Vivek Lakhera, learned Panel Lawyer for the
petitioner/State.
         Shri Shashank Shekar, learned counsel for the
respondent.

Heard.

2. This revision petition has been filed against the appellate judgment dated 05.05.2015 passed by the Appellate Judge in Criminal Appeal No.1294/2014. The appellate Court affirmed the judgment of acquittal dated 28.10.2014 passed by the Chief Judicial Magistrate, Bhopal in R.T. No. 413/2005.

3. The respondent was prosecuted for commission of offences punishable under Sections 467, 468 and 420 of Indian Penal Code. Allegation against the respondent was that he had written a letter on the letter head of the Chief Minister and he had made signature of the Chief Minister.

4. The trial Court after appreciation of evidence did not find the charges proved against the respondent. The appellate Court again re-appreciated the evidence and recorded a finding that the prosecution did not prove the charges beyond reasonable doubt against the respondent. The appellate Court has recorded detailed findings in the impugned judgment, specially in para 38 of the judgment.

5. The Apex Court in the case of Venkatesan vs Rani and another, reported in 2013 SAR (Criminal) 1017 has held as under in regard to power of the High Court in exercising revisional jurisdiction against the judgment of acquittal:

“6. To answer the questions that have arisen in the present case, as noticed at the very outset, the extent and ambit of the revisional jurisdiction of the High Court, particularly in the context of exercise thereof in respect of a judgment of acquittal, may be briefly noticed. The law in this regard is well settled by a catena of decisions of this Court. Illustratively, as also chronologically, the decisions rendered in Pakalapati Narayana Gajapathi Raju vs. Bonapalli Peda Appadu, Akalu Ahir v. Ramdeo Ram, Mahendra Pratap Singh v. Sarju Singh, K. Chinnaswamy Reddy v. State of A.P. and Logendranath Jha v. Polai Lal Biswas may be referred to. Specifically and for the purpose of a detailed illumination on the subject the contents of paras 8 and 10 of the judgment in the case of Akalu Ahir v. Ramdeo Ram (supra) may be usefully extracted below.

“8. This Court, however, by way of illustration, indicated 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 overlooked only (either) by the trial court or by the appellate court; and

(v) Where the acquittal is based on the compounding of the offence which is invalid under the law.

These categories were, however, merely illustrative and it was clarified that other cases 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.” “10. No doubt, the appraisal of evidence by the trial Judge in the case in hand is not perfect or free from flaw and a Court of appeal may well have felt justified in disagreeing with its conclusion, but from this it does not follow that on revision by a private complainant, the High Court is entitled to re- appraise the 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, should go unpunished. But that can scarcely be a valid ground for ignoring or for not strictly following the law as enunciated by this Court.” The observations in para 9 in the case of Vimal Singh v. Khuman Singh would also be apt for recapitulation and, therefore, are being extracted below.

“9. Coming to the ambit of power of the High Court under Section 401 of the Code, the High Court in its revisional power does not ordinarily interfere with judgments of acquittal passed by the trial court unless there has been manifest error of law or procedure. The interference with the order of acquittal passed by the trial court is limited only to exceptional cases when it is found that the order under revision suffers from glaring illegality or has caused miscarriage of justice or when it is found that the trial court has no jurisdiction to try the case or where the trial court has illegally shut out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue has been overlooked. These are the instances where the High Court would be justified in interfering with the order of acquittal. Sub-section (3) of Section 401 mandates that the High Court shall not convert a finding of acquittal into one of conviction. Thus, the High Court would not be justified in substituting an order of acquittal into one of conviction even if it is convinced that the accused deserves conviction. No doubt, the High Court in exercise of its revisional power can set aside an order of acquittal if it comes within the ambit of exceptional cases enumerated above, but it cannot convert an order of acquittal into an order of conviction. The only course left to the High Court in such exceptional cases is to order retrial.”

7. The above consideration would go to show that the revisional jurisdiction of the High Courts while examining an order of acquittal is extremely narrow and ought to be exercised only in cases where the Trial Court had committed a manifest error of law or procedure or had overlooked and ignored relevant and material evidence thereby causing miscarriage of justice. Re-appreciation of evidence is an exercise that the High Court must refrain from while examining an order of acquittal in the exercise of its revisional jurisdiction under the Code. Needless to say, if within the limited parameters, interference of the High Court is justified the only course of action that can be adopted is to order a re-trial after setting aside the acquittal. As the language of Section 401 of the Code makes it amply clear there is no power vested in the High Court to convert a finding of acquittal into one of conviction.”

6. The principle of law laid down by the Hon'ble Apex Court is that power of the High Court in revisional jurisdiction while examining the judgment of acquittal is extremely narrow and it can be exercised where the trial Court had committed a manifest error of law or procedure or had overlooked and ignored the relevant and material evidence thereby causing miscarriage of justice. Apart from this, the High Court can only order re-trial after setting aside the judgment of acquittal, however, the High Court has no power to convert the judgment of acquittal into conviction.

7. We have perused the evidence on record. In our opinion, there is no error committed by both the Courts below which warrants re-trial of the case. Both the Courts have considered the evidence properly. Hence, we do not find any merit in this revision petition. It is hereby dismissed.

(S. K. GANGELE)               (ANURAG SHRIVASTAVA)
       JUDGE                            JUDGE



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