Patna High Court
Harish Chandra Pandey vs State Of Bihar And Ors. on 4 February, 1999
Equivalent citations: 1999(1)BLJR240
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
JUDGMENT M.Y. Eqbal, J.
1. This Criminal Revision application under Sections 397/401 of the Code of Criminal Procedure (hereinafter referred to as "the Code") has been filed by the petitioner-informant against the judgment of acquittal passed by the 3rd Addl. Sessions Judge, Gopalgunj. in Session Trail No. 196 of 1996 under Section 302/109, 302/149, 302, 342, 307, 324/and 323 of the Indian Penal Code arising out of Kuchaikote P.S. Case No. 61 of 1995.
2. The prosecution case, in brief, is that on 1.6.1995 the first informant was going to his medicine shop and when he came outside of his house he saw that accused persons were sitting on a Chauki. As per prosecution case, Sudama Pandey is the son of Bali Ram Pandey and Prema Devi is his wife. Mudala Devi is the wife of Vidya Pandey and Kalawati Devi and Lilawati Devi are daughters of Bali Ram Pandey. It is alleged that when the informant reached near the aforesaid persons, all of a sudden all the accused persons caught hold of him and brought him in a room and accused Sudama Pandey, threw him on the ground. On being asked by Baliram Pandey to kill the first informant Sudama Pandey took a knife but the first informant caught him. Further case of the prosecution was that Prema Devi assaulted the informant with Danda over his eye and Kalawati Devi assaulted him with a brick on his chest. In the meantime sister of the first informant, namely Kalawati Devi came to rescue him on which accused Sudama Pandey assaulted her with knife on her back and Vidya Pandey assaulted her with knife on her head. Accused Mudala Devi assaulted her with Danda on her stomach and leg. Further case of the prosecution is that Kamlawati Devi and Lilawati Devi had assaulted the mother of the first informant also with Danda. The first informant and his mother went near his sister who died after sometime. As per prosecution case the witnesses named in the first information report, namely, Haribhakta Pandey, Binod Pandey and Subhash Pandey had seen the occurrence and the cause of the incident was land disputed.
3. It appears that after investigation police submitted charge-sheet under the aforementioned sections and the case was. finally committed to the Court of Session. The Session Court after recording evidence and after hearing the parties passed the impugned judgment of acquittal.
4. Mr. M.N. Parbat, learned Counsel for the petitioner assailed the impugned judgment and order as being illegal and wholly without jurisdiction. Learned Counsel submitted that the Court below has committed serious illegality in the procedure of recording evidence of the witnesses and illegally shut out the evidence. According to the learned Counsel, father of the petitioner is the son of Baliram Pandey and own brother of other accused persons and he is in collusion with the accused persons and does not want that accused persons should not be punished. Learned Counsel further submitted that when the trial of the case started, the petitioner and his mother had no knowledge because no notice was served upon them and the prosecution deliberately did not examine the informant and his mother. According to the learned Counsel although order was passed for issuance of summons to the informant and his mother who are eye-witnesses but service of notice was not affected. It is further contended that non-bailable warrant of arrest was issued but it was returned unserved. Not only that the prosecution filed an application under Section 311 of the Code for recording evidence of the petitioner and his mother. The said application was though allowed by the Court below but no notice was issued to the witnesses and the evidence was closed abruptly. Learned Counsel for the petitioner, therefore, submitted that the Court below has committed grave illegality in passing the judgment of acquittal.
5. On the other hand, Mrs. Anjana Prakash, learned Counsel appearing on behalf of the private opposite parties firstly submitted that no illegality has been committed by the trial Court and the impugned judgment has been passed by the Court below after giving full opportunity to the prosecution to examine all the witnesses. Learned Counsel has drawn my attention to the record of the Court below and submitted that it is not the case where the Court deliberately shut out the evidence of the prosecution and passed the impugned judgment. According to the learned Counsel the petitioner and his mother deliberately did not appear although they have full notice and knowledge about the trial.
6. Before appreciating the contentions of the learned Counsel for the parties, I would first refer to the provisions of Section 401 of the Code of Criminal Procedure to show that the limitation in exercise of jurisdiction of a revisional Court in the matter of judgment of acquittal. Section 401 of the Code reads as under-
401. High Court's power of revision.--(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392.
(2) No order under this section shall be made to the prejudice of the accused or other person unless he had an opportunity of being heard either personally or by pleader in its own defence.
(3) Nothing in this section shall be deemed to authorise in a High Court to convert a finding of acquittal into one of conviction.
(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.
(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interest of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.
7. From bare reading of the aforesaid provision it is manifest that the object of the revisional jurisdiction is to confer upon the superior criminal Courts a kind of paternal or supervisory jurisdiction, in order to correct miscarriage of justice, arising from misconception of law, irregularity of procedure and similar infirmities. So far as the revisional jurisdiction against the judgment of acquittal is concerned it is well settled that the revisional jurisdiction of the High Court under Section 401 should not be exercised except in exceptional cases where the trial Court has no jurisdiction to try the case but has still acquitted the accused or appellate Court has wrongly shut out evidence which was admitted by trial Court to be in admissible. It is equally well settled that the revisional jurisdiction of the High Court is not to be ordinarily invoked merely because the lower Court has taken a wrong view of the law or misappropriate the evidence on record. Even if a different view is possible, the High Court in exercise of its revisional jurisdiction will not interfere when the lower Court has taken a reasonable view of the matter and order is based on legal evidence on record and no glaring defect of serious nature has taken place. In the case of K. Chinnaswamy Reddy v. State of Andhra Pradesh . The Apex Court held that the revisional jurisdiction of the High Court is not to be lightly exercised when it is invoked by a private complainant against an order of acquittal. It would be exercised only in exceptional cases where the public justice requires interference for the correction of illegality or prevention of miscarriage of justice. This jurisdiction is not ordinarily be invoked or used merely because the lower Court has taken a wrong view of the law or misappropriated the evidence on record. The Apex Court held as under-
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, but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or, there is a material error on a point of law and consequently there has been a flagrant mis-marriage of justice.
The aforesaid view has been again approved by the Supreme Court in the case of Kishan Swaroop v. Govt. of N.C.T. of Delhi .
8. In the case of Vimal Singh v. Khuman Singh , the Apex Court again considered the power of the High Court under Section 401 of the Code specially in case of revision against the judgment of acquitted. Their Lordships observed as under-
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 judgment of acquittal passed by the trial Court unless there has been manifest error of law or procedure. The interference with 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 have been overlooked. These are the instances where the High Court would be justified in interfering with the order of acquittal. Sub-section (2) 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 of acquittal into one of conviction even if it is convicted 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 case enumerated above, but it can not convert an order of acquittal into on 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.
9. In the light of the aforesaid principles of law laid down by the Apex Court, now I will test the validity of the impugned judgment passed by the Court below and shall meet the "submissions made by the learned Counsel for the petitioner. From perusal of the order-sheet of the lower Court it appears that the charges were framed on 7.12.1996 and thereafter the trial begun from 7.12.1996 on which date P.W. 1 and P.W. 2 were examined. Thereafter from 7.12.1996 to 15.7.1997 the prosecution failed to produce witnesses although there were 16 adjournments. In between that period summons and non-bailable warrants were issued to the witnesses including the petitioner and his mother. On 26.7.1997 and 8.8.1997 P.Ws. 4 and 5 were examined. On 21.12.1997 and 24.12.1997 again summons and bailable warrants were issued to the petitioner and his mother. From perusal of the order dated 11.12.1998 it appears that the Court below passed an exhaustive order on the application filed by the accused persons for their discharge on the ground that the witnesses examined have not proved the guilt of the accused persons. In that order the Court below has been notice of the fact that the Court has exhausted every process to ensure the attendance of the first informant and his mother. The reason for non-appearance is evident from the fact that accused Sudama Pandey and the father of the first informant are full brothers. The Court further found that warrant of arrest against the first informant and his mother was sent to the superintendent of Police for execution but it was reported that these two persons were not available and were traceless. The Court below closed the evidence of the prosecution and adjourned the case for examination under Section 313 of the Code. It further appears from the order dated 27.3.1998 that the prosecution filed a petition and prayed for giving opportunity to produce the informant and other witnesses and for reopending of the prosecution evidence. Learned Court below again allowed the prosecution to examine rest of the prosecution witness. In spite of that the prosecution failed to examine the witnesses. On the adjourned date i.e., on 17.4.1998 the prosecution neither appeared nor produce any witness. From perusal of the order it appears that this Court time and again directed the Court below to dispose of the trial expeditiously and in order to comply the order, the Court below sent letter to the Superintendent of Police, Gopalgunj for production of the prosecution witnesses. In spite of that the prosecution witnesses could not be produced. The extract of the order dated 17.4.1998 is quoted herein below-
On 27.3.1998 I sent a letter to S.P. Gopalgunj for production of prosecution witnesses. This letter has been received in the office of S.P. Gopalgunj on 30.3.1998 which is clear from the copy of the letter attached with the record. In spite of the letter No. 66/98 dated 27.3.1998. Prosecution witnesses have not been produced in this case. I had requested S.P. Gopalgunj to treat this letter as most urgent because the accused is in jail since 1995. It is very surprising that S.P. Gopalgunj did not do any thing in regard to production of prosecution witnesses. It is very surprising that on 6.4.1998 no pairvi was made on behalf of the prosecution. It also appears that on 15.4.1998 no pairvi was made on behalf of the prosecution and today also no pairvi has been made on behalf of the prosecution although on 15.4.1998 A.P.P. has written "Seen" on the petition of the accused and also made his signature on the petition of the accused. Naturally it will be deemed that prosecution has nothing to say on the point of closure of the prosecution evidence. In view of the order of Hon'ble High Court the trial has to be expedited.
Therefore, in above circumstances in view of the Hon'ble High Court's order for expeditious trial, in view of the fact that one of the accused is in jail since 1995 and in view of the unjustified and inhuman approach of the prosecution. I have no option except to close the prosecution evidence. As such prosecution evidence is hereby closed. Put up for statement of the accused 18.4.1998.
10. It is, therefore, clear that it is not a case where the Court below has shut out the evidence abruptly without giving reasonable opportunity to the prosecution to examine all the witnesses. The impugned judgment also does not suffer from any glaring illegality or caused any miscarriage of justice. As a matter of fact, as noticed above, because of close relation ship of the informant with the accused, the informant evaded to give evidence in support of the prosecution. The Court below after exhausting all the remedy available for procuring the attendance of the witnesses and it was only after the prosecution failed to examine witnesses the evidence was closed and the impugned judgment was passed. I am, therefore, of the view that the impugned judgment and order needs no interference by this Court in exercise of revisional jurisdiction under Section 401 of the Code.
11. In the result, there is no merit in this revision petition which is accordingly dismissed.