Allahabad High Court
Khajan Singh vs Radhey Lal And Others on 3 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 641
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 84 Case :- CRIMINAL REVISION No. - 604 of 2001 Revisionist :- Khajan Singh Opposite Party :- Radhey Lal And Others Counsel for Revisionist :- B.N. Pathak Counsel for Opposite Party :- Govt. Advocate Hon'ble Raj Beer Singh,J.
1. This Revision has been preferred against judgment and order dated 22.12.2000 passed by learned 5th Additional Session Judge, Bulandshahr in Sessions Trial No. 493 of 1990 (State Vs. Radhey Lal and Ors.) whereby opposite party nos. 1 to 8 have been acquitted of charges under Sections 147, 323/149, 325/149 of IPC.
2. None has appeared on behalf of the revisionist to argue this Revision.
3. Heard learned AGA for the State and perused the record.
4. Perusal of record shows that both the parties were having enmity on account of disputed concerning land no. 513. On 30.09.1988 at 08:10 am while complainant was making demarcation on said land, accused/opposite party nos. 1 to 8 objected the same and did beatings with complainant, his mother Shanti Devi and one Nagendra and Sunil. Initially, a non-cognizable report under Sections 323, 504, 506 was lodged but thereafter, on application made on behalf of complainant, a case was registered under Sections 147, 323, 325, 308, 504, 506 of IPC. It also appears that a cross case was registered against complainant party under Sections 147, 148, 307 323, 504, 506 of IPC regarding same incident. In the instant case, opposite party nos. 1 to 8 were charged under Sections 147, 323/149, 325/149 of IPC. Prosecution has examined one Khajan Singh (PW-1) and Nagendra Singh (PW-2). As witnesses of fact, other formal witnesses were also examined. After appraisal of evidence, learned trial court has found that prosecution has failed to establish that the land was in possession of complainant. In this regard, learned trial court has made detailed discussion and has considered orders of Revenue Authorities and held that prosecution could not prove that the disputed land was in possession of complainant party. Learned trial court has also noticed that there were various inconsistencies in prosecution version and that witnesses have made improvements during statements in court. Further, in cross case Sessions Trial No. 436 of 1990 (State Vs. Nagendra and others) one Murari Lal, Gangawati, Hemlata, Chandrawati, Radhe Lal and Shakuntala have sustained injuries but same were not explained by prosecution. Learned trial court also found that both the parties have sustained injuries and disputed land was not in possession of complainnat and it could also not be proved that who was trespasser.
5. In view of these facts, learned trial court has concluded that prosecution has failed to prove its case beyond doubt. After perusing entire evidence, it cannot be said that findings rendered by learned trial court are perverse or suffers from any illegality or material irregularity. The view taken by learned court below is quite probable view on the basis of material available on record.
6. 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.''
7. 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."
8. 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.
9. In the instant case, considering entire evidence, it cannot be said that the impugned judgement and order suffers from any such illegality, perversity or error of jurisdiction so as to warrant any interference by this Court.
10. The Criminal Revision lacks merit and is accordingly, dismissed.
Dated: 03.01.2020 Mohit Kushwaha (Raj Beer Singh, J)