Karnataka High Court
Kiran Kumar S/O Late G V Rangaiah vs State By Hassan Extension Police on 7 March, 2013
Author: N.Ananda
Bench: N.Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 7TH DAY OF MARCH 2013
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
CRIMINAL REVISION PETITION NO.167/2009
BETWEEN:
KIRAN KUMAR
S/O LATE G V RANGAIAH
AGED ABOUT 30 YEARS
R/O AMBEDKAR NAGAR
GORUR VILLAGE,
KATTYA HOBLI HASSAN TALUK
HASSAN
... PETITIONER
(BY SRI S SHANKARAPPA & ASSTS, ADV.)
AND:
STATE BY HASSAN EXTENSION POLICE
REP BY S P P HIGH COURT BUILDING,
BANGALORE
... RESPONDENT
CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT OF CONVICTION DATED
22.11.06 PASSED BY THE ADDL. C.J. (JR.DN.) & JMFC.,
HASSAN IN C.C.NO. 695/00 AND ALSO THE JUDGMENT
OF CONVICTION CONFIRMED BY THE ORDER DATED
17.11.08 PASSED BY THE FTC-III, & ADDL. S.J., HASSAN
IN CRL.A.NO.133/2006.
THIS PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
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ORDER
The petitioner was tried for an offence punishable under Section 224 IPC.
2. Heard the learned Counsel for petitioner and the learned Government Pleader for the State.
3. On 31.12.1999, petitioner and one Narasimaiah were arrested in Crime No.156/1999 for offences punishable under Sections 353, 506 r/w. 34 IPC by Gorur police and both of them were brought under the escort of PW-1, Arasegowda ASI, PW-2, Krishnegowda and PW-7, Rangaswamy, police constables in DAR Van bearing No.KA-13-G-242 and produced before the learned Magistrate on or around 2.00 a.m. (intervening night of 31.12.1999 and 1.1.2000). The learned Magistrate remanded petitioner and Narasimaiah (other accused) to judicial custody till 3.1.2000. When they were brought back from the Home Office of learned Magistrate for being taken to judicial custody, petitioner escaped from lawful custody of police and ran away from that place. The police could not apprehend
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petitioner. The first information was lodged by ASI and a case was registered against petitioner for an offence punishable under Section 224 IPC. The petitioner was tried for the aforestated offence. The petitioner took a specific defence that after he was produced before the learned Magistrate, he pleaded for release on bail on execution of self bond after he came out of residence of learned Magistrate, he was informed that he has been released on bail and therefore, he went home. After reaching home, he came to know that he had not been released on bail. Therefore, on 4.1.2000, he surrendered before the learned Magistrate.
4. The learned Magistrate has dis-believed the version of accused which is contrary to records and convicted accused for aforestated offence and sentenced him to undergo imprisonment for a period of one year.
5. The learned Judge of the first appellate Court, on re-appreciation of evidence has confirmed judgment of conviction made by the learned Magistrate.
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6. In the case of Johar & Others Vs. Mangal Prasad & another, reported in 2008 Crl.L.J. 1627 (2008 AIR SCW 1106), the Supreme Court has held:-
"9. Revisional jurisdiction of the High Court in terms of Section 397 read with Section 401 of the Code of Criminal Procedure is limited. The High Court did not point out any error of law on the part of the learned Trial Judge. It was not opined that any relevant evidence has been left out of its consideration by the court below or irrelevant material has been taken into consideration. The High Court entered into the merit of the matter. It commented upon the credentiality of the Autopsy Surgeon. It sought to re- appreciate the whole evidence. One possible view was sought to be substituted by another possible view.
10. Sub-section (3) of Section 401 reads as under :-
"401(3). Nothing in this section shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction."
Technically, although Ms. Makhija may be correct that the High Court has not
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converted the judgment of acquittal passed by the learned Trial Court to a judgment of conviction, but for arriving at a finding as to whether the High Court has exceeded its jurisdiction or not, the approach of the High Court must be borne in mind. For the said purpose, we may notice a few precedents.
11. In D. Stephens vs. Nosibolla : [1951] 1 SCR 284 this Court opined :-
"10. The revisional jurisdiction conferred on the High Court under section 439 of the Code of Criminal Procedure is not to be lightly exercised when it is invoked by a private complainant against an order of acquittal, against which the Government has a right of appeal under section 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely because the lower court has taken a wrong view of the law or misappreciated the evidence on record."
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12. The same principle was reiterated in Logendra Nath Jha and others vs. Polailal Biswas [1951 SCR 676] stating:
"........Though sub-section (1) of section 439 authorises the High Court to exercise, in its discretion, any of the powers conferred on a court of appeal by section 423, sub-section (4) specifically excludes the power to "convert a finding of acquittal into one of conviction.
This does not mean that in dealing with a revision petition by a private party against an order of acquittal the High Court could in the absence of any error on a point of law re- appraise the evidence and reverse the findings of facts on which the acquittal was based, provided only it stopped short of finding the accused guilty and passing sentence on him. By merely characterizing the judgment of the trial court as "perverse" and "lacking in perspective", the High Court cannot reverse pure findings of fact based on the trial Court's appreciation of the evidence in the case. That is what the learned Judge in the court below has done, but could not, in our opinion, properly do on an application in revision filed by a private party against acquittal....."
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7. 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."
8. The learned Counsel for petitioner would submit that evidence of PWs.1 to 4 that accused was able to escape from clutches of police though he was handcuffed, looks improbable. The Investigating Officer
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has not recovered handcuffs. The other accused namely Narasimha was neither cited nor examined as a witness.
9. In my considered opinion, none of the submissions is tenable. The petitioner has not denied that he went home from custody of police, however, petitioner has pleaded that he was under bonafide impression that he had been released on bail, which is contrary to the contents of records in particular, the order sheet recorded by the learned Magistrate. The accused was a law student. Therefore, he could not have gathered an impression that he had been released on bail. The trial Court on appreciation of evidence has recorded aforestated findings. The learned Judge of the first appellate Court, on re-appreciation of evidence has confirmed the findings of trial Court.
10. The learned Counsel for petitioner submits that petitioner did not have criminal antecedents. He was aged about 23 years at the time of offence.
11. The petitioner had been produced before the learned J.M.F.C and had been remanded to judicial
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custody. In the circumstances, he should not have escaped from custody of police. The acts committed by petitioner not only betrays his lawless conduct but sheer disobedience to the order made by the learned Magistrate. Yet, the fact remains that the petitioner has chances to reform himself and long period of imprisonment may effect his future.
12. The petition is partly accepted. The impugned judgment of conviction is confirmed. The sentence passed by the trial Court and confirmed by the first appellate Court is modified. The accused is sentenced to undergo simple imprisonment for a period of six months for an offence punishable under Section 224 IPC. The fine imposed by the trial Court is confirmed.
Sd/-
JUDGE nas.