Allahabad High Court
Vikrama Ditya Pandey vs State Of U.P. And Others on 3 January, 2020
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 84
Case :- CRIMINAL REVISION No. - 2056 of 1999
Revisionist :- Vikrama Ditya Pandey
Opposite Party :- State of U.P. and Others
Counsel for Revisionist :- S.C. Pandey
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Raj Beer Singh,J.
1. This revision has been preferred against the judgment and order dated 15.09.1999 passed by learned Chief Judicial Magistrate, Bhadohi in Case No. 852 of 1999 (State vs. Ramalakh & Ors), under Sections 379 and 426 IPC, P.S. Bhadohi, District Bhadohi, whereby opposite party nos. 2 to 6 have been acquitted of charge under Section 379 IPC.
2. None has appeared on behalf of revisionist to argue this revision.
3. Heard learned A.G.A. for the State and perused the record.
4. Perusal of record shows that PW-1 Lal Mani has lodged an FIR against opposite parties that they have stolen wooden poles, bricks of boundary wall and barbed wire from his garden. After investigation, they were charge-sheeted. In support of prosecution case, PW-1 Lal Mani, PW-2 Vikrama Ditya Pandey, PW-3 Vijayanand Pandey, PW-4 Ram Murti Singh were examined as prosecution witnesses. After appreciating entire evidence, the revisionists were acquitted of charge under Section 379 of IPC, however, they were convicted under Section 426 IPC and were sentenced to fine of Rs. 200 each vide impugned judgment and order dated 15.09.1999. It appears from record that grievance of revisionist is that the opposite party no.2 to 6 must have been convicted under Section 379 IPC and trial Court committed error by acquitting them of charge under Section 379 IPC.
5. At the outset, it may be mentioned that it is a Revision against order of acquittal and thus, extent and ambit revisional jurisdiction of this Court is quite limited. In Venkatesan Vs. Rani & Anr. (Criminal Appeal No. 462 of 2008) decided on 19.08.2013, Hon'ble Apex Court has considered the true contours of the jurisdiction vested in the High Court's under Section 397 read with Section 401 of Code of Criminal Procedure, 1973 while examining order of acquittal passed by trial court and held as under:
''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[1], Akalu Ahirv. Ramdeo Ram[2], Mahendra Pratap Singh v. Sarju Singh[3], K. Chinnaswamy Reddy v. State of A.P.[4] and Logendranath Jha v. Polai Lal Biswas[5] maybe referred to. Specifically and for the purpose of a detailed illumination on the subject the contents of paras 8 and 10 of the judgmentin 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[6] 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.'' Similarly, in case of Vimal Singh Vs. Khuman Singh and Anr., AIR 1998 SC 3380 while examining ambit of power of the High Court under Section 401 Cr.P.C. Hon'ble Apex Court has made following observations:
"The legal position as to the powers of the High Court in revision in the matter of interference with the order of acquittal is no longer res inlegra, as the law in this regard is very well settled. Suffice it to refer in this regard a decision of this Court in K.Chinnaswamy Reddy vs. State of Andhra Pradesh and anr. (AIR) 1962 Sc 1788) wherein it was held, thus :
"It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal by the jurisdiction should be exercised by the High Court only in exception the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub-section (4) ofSection 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not covert the finding of acquittal into one of conviction by the indirect method of ordering retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitations on the power of the High Court to set aside the finding of acquittal in revision and it is only in exceptional cases that this power should be exercised.....
Where the appeal Court wrongly ruled out evidence which was admissible, the High Court would not be justified in interfering with the order of acquittal in revision, so that the evidence may be reappraised - after taking into account the evidence which was wrongly ruled out as inadmissible. But the High Court should confine itself only to the admissibility of the evidence and should not go further and appraise the evidence also".
''7. Coming to the ambit of power of 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. In fact, Sub- section (3) of Section 401 of the Code forbids the High Court in converting the order of acquittal into one of conviction. In view of the limitation on the revisional power of the High Court, the High Court in the present case committed manifest illegality in convicting the appellant under Section 304, Part - I and sentencing him to seven years' rigorous imprisonment after setting aside the order of acquittal."
The revision jurisdiction of the High Court as contemplated under Section 401 of Cr.P.C. operates within narrow limits and can be exercised only in exceptional cases where interests of public justice require interference for the correction of gross miscarriage of justice. It cannot be exercised because the lower court has taken a wrong view of the law or mis-appreciated evidence on record. The revision power of the High Court is to be exercised when there is manifest error of law or glaring defect in the procedure.
6. In the instant case close scrutiny of evidence reveals that on the basis of evidence, learned trial Court has rendered finding that the wall of complainant has not been fallen down by revisionists and in this regard, the prosecution version was not established. Further, there was undue delay in lodging the FIR, for which no satisfactory explanation was offered. Prosecution has failed to adduce any categorical and cogent evidence regarding commission of offence of theft by opposite party no.2 to 6. However, it has been established that they have damaged wall of complainant and thus, they were held guilty of offence under Section 426 IPC. Considering entire evidence, it cannot be said that findings rendered by learned trial Court are perverse or suffers from any illegality or error of jurisdiction. It is well settled that the revision Court generally would not re-appreciate evidence and would not substitute findings of fact unless the findings of Court below is not based on evidence or suffers from perversity or illegality. It is also well settled that if on the basis of evidence two views are possible, the view favourable to accused persons has to be taken. In the instant case, considering entire evidence it cannot be said that impugned judgment and order suffers from any such illegality, perversity or error of jurisdiction so as to warrant any interference by this Court.
7. The present revision lacks merit and is accordingly dismissed.
Order Date :- 3.1.2020 A. Tripathi (Raj Beer Singh, J)