Karnataka High Court
K Jagadish vs The State Of Karnataka on 7 March, 2013
Author: N.Ananda
Bench: N. Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 07TH DAY OF MARCH 2013
BEFORE
THE HON'BLE MR.JUSTICE N. ANANDA
CRIMINAL REVISION PETITION No.40/2010
BETWEEN:
K Jagadish, 40 Years
S/o H.Krishnappa
R/o No.3424, 6th Cross
Gayathrinagar, Bangalore. ... Petitioner
(By Sri G Suresh, Advocate)
AND :
The State of Karnataka
By Rajajinagar Traffic Police Station
Bangalore City. ... Respondent
(By Sri Rajasubramanya Bhat, HCGP)
This revision petition is filed u/s 397 r/w 401 Cr.P.C.,
praying to set aside the judgment of conviction and sentence
dated 28.03.2007 passed by the MMTC-III, Bangalore City in
C.C.No.3180/2003 and confirmed by judgment dated
14.12.2009 passed by the Fast Track (Sessions) Judge-V,
Bangalore City in Crl.A.No.482/07 & etc.
This revision petition coming on for final hearing this
day, the court made the following:
2
ORDER
The petitioner (hereinafter referred to as 'the accused') was tried for offences punishable under sections 279, 337 & 304A IPC and also for an offence punishable under section 146 r/w section 196 of Motor Vehicles Act. The learned trial Judge on appreciation of evidence, convicted accused for aforestated offences. The accused was before I-appellate court in Criminal Appeal No.482/2007. The learned Judge of I-appellate court on re-appreciation of evidence has confirmed the findings of trial court.
2. I have heard learned counsel for accused and learned HCGP for State.
3. The learned counsel for accused would submit that evidence of PW1 is discrepant, even otherwise, his evidence does not disclose that accused was guilty of rash and negligent driving.
4. The learned counsel for accused, referring to rough sketch would submit that accused was driving his car on 3 proper side of road. The BMTC bus was proceeding to right side of car. The accused was not driving car at a high speed. The deceased (a pedestrian), who was moving along the side of road was guilty of contributory negligence. The driver of BMTC bus, on approaching bust stop had not taken proper care of pedestrians. Therefore, driver of BMTC bus was also guilty of contributory negligence.
5. The learned counsel for accused, referring to the provisions of sections 397 & 401 Cr.P.C., would submit that this court has got enormous powers to re-appreciate evidence, notwithstanding concurrent findings recorded by trial court and I-appellate court.
6. The learned HCGP for State would justify the impugned judgment.
7. This court in exercise of its powers under sections 397 & 401 Cr.P.C., may exercise powers under sections 386, 389, 390 & 391 Cr.P.C. However, this court cannot sit as a court of appeal.
4
8. In a decision reported in 1999 CRl.L.J. 1443 (in the case of State of Kerala -vs- Puttumana Illath Jathavedan Namboodiri), the Supreme Court has held:-
"5. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction.
Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice."5
9. In a decision reported in 2008 AIR SCW 1106 (in the case of Johar & Others Vs. Mangal Prasad & another), the Supreme Court has held:-
"17. The approach of the High Court to the entire case cannot be appreciated. The High Court should have kept in mind that while exercising its revisional jurisdiction under Sections 397 and 401 of the Code of Criminal Procedure, it exercises a limited power. Its jurisdiction to entertain a revision application, although is not barred, but severally restricted, particularly when it arises from a judgment of acquittal.
18. Ms. Makhija is correct that sub- section (4) of Section 378 of the Code of Criminal Procedure was not available to the first informant but the same by itself would not mean that in absence of any appeal preferred by the State, the limited jurisdiction of the court should be expanded.
19. We may notice a few of the decisions of this Court which are binding on us.6
In K. Chinnaswamy Reddy vs. State of Andhra Pradesh : [1963] 3 SCR 412, this Court observed:-
"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 though 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 manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub-section (4) of s. 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 convert 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 a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised."7
In Mahendra Pratap Singh vs. Sarju Singh and Anr. [1968] 2 SCR 287 this Court stated the law thus :-
"8. The practice on the subject has been stated by this Court on more than one occasion. In D. Stephens v. Nosibolla [[1951] S.C.R. 284], only two grounds were mentioned by this Court as entitling the High Court to set aside an acquittal in a revision and to order a retrial. They are that there must exist a manifest illegality in the judgment of the Court of Session ordering the acquittal or there must be a gross miscarriage of justice. In explaining these two propositions, this Court further states that the High Court is not entitled to interfere even if a wrong view of law is taken by the Court of Session or if even there is misappreciation of evidence. Again, in Logendranath Jha and others v. Shri Polailal Biswas [[1951] S.C.R. 676], this Court points out that the High Court is entitled in revision to set aside an acquittal if there is an error on a point of law or no appraisal of the evidence at all. This Court observes that it is not sufficient to say that the judgment under revision is "perverse" or "lacking in true correct 8 perspective". It is pointed out further that by ordering a retrial, the dice is loaded against the accused, because however much the High Court may caution the Subordinate Court, it is always difficult to re-weigh the evidence ignoring the opinion of the High Court. Again in K. Chinnaswamy Reddy v. State of Andhra Pradesh, it is pointed out that an interference in revision with an order of acquittal can only take place if there is a glaring defect of procedure such as that the Court had no jurisdiction to try the case or the Court had shut out some material evidence which was admissible or attempted to take into account evidence which was not admissible or had overlooked some evidence. Although the list given by this Court is not exhaustive of all the circumstances in which the High Court may interfere with an acquittal in revision it is obvious that the defect in the judgment under revision must be analogous to those actually indicated by this Court."
In Janata Dal vs. HS Chowdhary : (1992) 4 SCC 305, this Court stated that the object of the revisional jurisdiction was to confer power on superior criminal courts to correct miscarriage 9 of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment.
In State of Maharashtra vs. Jagmohan Singh Kuldip Singh Anand : (2004) 7 SCC 659 this Court observed :-:
"21. In embarking upon the minutest re- examination of the whole evidence at the revisional stage, the learned Judge of the High Court was totally oblivious of the self- restraint that he was required to exercise in a revision under Section 397 Cr.P.C. On behalf of the accused, reliance is placed on the decision of this Court to which one of us (Justice Sabharwal) is a party i.e. Ram Briksh Singh v. Ambika Yadav. That was the case in which the High Court interfered in revision because material evidence was overlooked by the courts below."
The judgment of Ram Briksh mentioned above, has since been reported as Ram Briksh Singh vs. Ambika Yadav : (2004) 7 SCC 665 wherein it has been observed :-
10
"12. For the aforesaid reasons, we are unable to accept the contention that the High Court has reappreciated the evidence. The High Court has only demonstrated as to how the material evidence has been overlooked leading to manifest illegality resulting in gross miscarriage of justice." It was, therefore, relevant in the fact situation obtaining therein. Yet again in Satyajit Banerjee vs. State of W.B. : (2005) 1 SCC 115 this Court has, while exercising its jurisdiction under Section 142 of the Constitution of India, expressed a note of caution stating :-
"22. The cases cited by the learned counsel show the settled legal position that the revisional jurisdiction, at the instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice."
It was therefore, relevant in the fact- situation obtaining therein.
Yet again in Satyajit Banerjee Vs. State of W.B. (2005) 1 SCC 115, this Court has, while 11 exercising its jurisdiction under section 142 of the Constitution of India, expressed a note of caution stating:-
"22. The cases cited by the learned counsel show the settled legal position that the revisional jurisdiction, at the instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice."
10. In view of what has been held in the aforestated decisions, submission of learned counsel for accused that this court has enormous powers under section 401 Cr.P.C., and this court can re-appreciate evidence cannot be accepted.
11. The prosecution, from the evidence of PW1 and documentary evidence such as rough sketch and mahazar has established that accused was driving car and he was trying to overtake BMTC bus from its left side when BMTC bus was approaching bus stop. In the process, car driven by 12 accused dashed against deceased (a pedestrian). The accused should not have overtaken the BMTC bus from its left side. The accused was aware of the fact that BMTC bus would stop at bus stop and passengers would alight from BMTC bus, so also passengers would board the bus. The accused owed a duty towards safety of pedestrians. Therefore, evidence on record would not justify submissions of learned counsel for accused that the deceased (a pedestrian) was guilty of contributory negligence, as also the driver of BMTC bus, who probably had swerved bus to its left side was also guilty of contributory negligence. Therefore, I hold that courts below have not committed any glaring errors in appreciation of evidence. The findings recorded by courts below do not call for interference for correction of manifest illegality, or prevention of gross miscarriage of justice. There are no reasons to interfere with the impugned judgment.
12. The learned counsel for accused, relying on unreported decisions of this court in Crl.R.P.No.509/2010, Crl.R.P.No.386/2005, Crl.R.P.No.100/2001, Crl.R.P.No.84/2007, 13 Crl.R.P.No.550/2002 and Crl.A.No.564/1999 and also Judgment of the Supreme Court, reported in (2008) 3 SCC (Cri) 456 (in the case of Manish Jalan Vs. State of Karnataka), would submit that sentence of imprisonment for an offence punishable under section 304A IPC, as also for an offence punishable under section 337 IPC may be substituted with fine.
13. The aforestated unreported judgments of this court have not laid down any law that imposition of fine for an offence punishable under section 304A IPC would be adequate sentence.
14. In a decision reported in (2008) 3 SCC (Cri) 456 (in the case of Manish Jalan Vs. State of Karnataka), the Supreme Court has held:-
"16. True that in the instant case the appellant has been found to be guilty of offences punishable under Sections 279 and 304A, IPC for driving rashly and negligently on a public street and his act unfortunately resulted in the 14 loss of a precious human life. But it is pertinent to note that there was no allegation against the appellant that at the time of accident, he was under the influence of liquor or any other substance impairing his driving skills. It was a rash and negligent act simpliciter and not a case of driving in an inebriated condition which is, undoubtedly despicable aggravated offence warranting stricter and harsher punishment.
17. Having regard to all these facts and bearing in mind the fact that the mother of the victim has no grievance against the appellant and has prayed for some compensation, we are of the view that a lenient view can be taken in the matter and the sentence of imprisonment can be reduced. We are of the opinion that the ends of justice would be met if the sentence of imprisonment is reduced to the period already undergone but in addition thereto, the appellant should be directed to pay an amount of Rs.1,00,000/- to the mother of the deceased by way of compensation. The Learned counsel for the appellant, in fact, indicated that his client was willing to pay that much amount. We order accordingly."15
15. In the aforestated judgment, the Supreme Court has held that the mother of victim had no grievance against appellant-accused and has prayed for some compensation. Therefore, the Supreme Court has held that sentence of imprisonment is reduced to the period already undergone but in addition thereto, appellant-accused was directed to pay an amount of Rupees One lakh to the mother of victim by way of compensation. Therefore, submission of learned counsel for accused that substitution of sentence of imprisonment with sentence of fine for offences punishable under sections 304A & 337 IPC would meet the ends of justice, cannot be accepted.
16. In view of the above discussion, I do not find any reasons to interfere with the impugned judgment. Therefore, revision petition is dismissed.
Sd/-
JUDGE SNN