Jharkhand High Court
Nitesh Chandrabanshi vs The State Of Jharkhand on 22 April, 2022
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Revisional Jurisdiction)
Criminal Revision No. 291 of 2015
Nitesh Chandrabanshi, s/o Sri Narayan Ram Saakin, r/o P.W.D. Colony, P.O.
& P.S. Telaiya, District-Koderma ......Petitioner
Versus
1. The State of Jharkhand
2. Manoj Kumar Chandrabanshi, s/o Late Bishundhari Ram, r/o Village
Gumo, Ward No. 15, New Ward No. 21, P.O. Gumo Barwadih Jhumari-
Telaiya, P.S. Telaiya, District Koderma
3. Tuntun Kumar Chandrabanshi, s/o Late Bishundhari Ram, r/o Gandhi
School Road Near Idol of Hanumanjee, Ward No. 14, New Ward No. 23, P.O.
Jhumari-Telaiya, PS Telaiya, District Koderma ..... Opposite Parties
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(Through V.C.) CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR For the Petitioner : Mr. Ashok Kumar Sinha, Advocate For O.P. Nos. 2 & 3 : Mr. Arpan Mishra, Advocate
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Order No.05/ Dated: 22nd April 2022 The petitioner is the informant at whose instance Telaiya PS Case No. 266 of 2007 was registered against the accused Manoj Kumar Chandrabanshi and Tuntun Kumar Chandrabanshi under section 420 and 120B of the Indian Penal Code (in short 'IPC').
2. By judgment dated 15th May 2014 in T.R. No. 33 of 2014, the learned Judicial Magistrate, 1st Class, Koderma convicted and sentenced the accused to RI for two years and fine of Rs.2,000/- each under section 420 IPC and RI for six months and fine of Rs.500/- each under section 120B IPC.
3. Both the convicts preferred Criminal Appeal No. 33 of 2014 against the aforesaid judgment of conviction before the Court of sessions and by judgment dated 9th February 2015 the District and Additional Sessions Judge Sessions Court No.1, Koderma set aside the judgment of conviction recorded in T.R. No. 33 of 2014 and allowed Criminal Appeal No. 33 of 2014.
4. Against the judgment passed in Criminal Appeal No. 33 of 2014, 2 Cr. Rev. No. 291 of 2015 the informant has preferred the present criminal revision petition.
5. Mr. Ashok Kumar Sinha, the learned counsel for the petitioner takes the Court through the materials on record to submit that the judgment in T.R. No. 33 of 2014 convicting the accused has been interferred by the appellate Court on such grounds which are not supported by the materials on record. The learned counsel for the petitioner would submit that the accused persons with an intention to cheat approached the informant and induced him to enter into the agreement with respect to a property which was under
litigation and, therefore, the learned Magistrate rightly held that the accused had intention to cheat from the very beginning and were liable to be convicted under section 420 IPC.
6. Mr. Arpan Mishra, the learned counsel for opposite party nos. 2 and 3 supporting the judgment in Criminal Appeal No. 33 of 2014 submits that the law on the subject has been well settled long back in "Akalu Ahir v. Ramdeo Ram" (1973) 2 SCC 583. The learned counsel would further place reliance on the judgments in "Venkatesan v. Rani" (2013) 14 SCC 207 and "Ganesha v. Sharanappa" (2014) 1 SCC 87.
7. In "Sheonandan Paswan v. State of Bihar" (1987) 1 SCC 288 the Constitution Bench of the Hon'ble Supreme Court held that minute scrutiny of the evidence led by the parties before the lower fora is not permissible and it is only such illegality in law committed by the Court(s) within the jurisdiction of the High Court which can be said to be perverse or leading to manifest injustice and thereby causing miscarriage of justice which would invite exercise of the revisional jurisdiction under section 397 of the Code of Criminal Procedure.
8. In "Venkatesan" the Hon'ble Supreme Court dealt with the powers of the High Court exercising revisional jurisdiction under section 397 read with section 401 of the Code of Criminal Procedure. The Hon'ble Supreme Court has held that in exercise of the revisional jurisdiction the High Court cannot do what the sessions Court would not have done. It was held so in the light of sub section (3) to section 401 of the Code of Criminal Procedure which puts a bar on the powers of the revisional Court to convert an order of acquittal into conviction. The aforesaid context keeping in mind, the Hon'ble Supreme Court held that the High Court in exercise of revisional 3 Cr. Rev. No. 291 of 2015 powers under section 401 of the Code of Criminal Procedure can remand a matter for retrial and that too only in exceptional cases in which it is brought on record that the order/judgment of the sessions Court is patently illegal or has resulted in manifest miscarriage of justice. Putting a word of caution, the Hon'ble Supreme Court has observed that "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".
9. In "Venkatesan" the Hon'ble Supreme Court has observed as under :
"7. 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 v. Bonapalli Peda Appadu, Akalu Ahir v. Ramdeo Ram, Mahendra Pratap Singh v. Sarju Singh, K. Chinnaswamy Reddy v. State of A.P. And Logendranath Jha v. Polai Lal Biswas may be referred to.
8. Specifically and for the purpose of a detailed illumination on the subject, the contents of paras 8 and 10 of the judgment in Akalu Ahir v. Ramdeo Ram may be usefully extracted below:
(SCC pp. 587-88) "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.
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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 reappraise the 4 Cr. Rev. No. 291 of 2015 evidence for itself as if it is acting as a court of appeal and then order a retrial. 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."
9. The observations in para 9 in Vimal Singh v. Khuman Singh would also be apt for recapitulation and, therefore, are being extracted below: (SCC pp. 226-27) "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.
10. 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. The reappreciation 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 retrial 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."
10. In "Ganesha" the Hon'ble Supreme Court has observed as under:
"8. Having appreciated the rival submissions we find substance in the submission of the learned counsel for the appellant. Section 401 of the Code of Criminal Procedure (for short "the Code"), confers power of revision to the High Court, same reads as follows:
"401. High Court's powers of revision.--(1) In the case of any 5 Cr. Rev. No. 291 of 2015 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 has had an opportunity of being heard either personally or by pleader in his own defence. (3) Nothing in this section shall be deemed to authorise 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 interests 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."
9. From a plain reading of sub-section (1) of Section 401 of the Code it is evident that the High Court, while exercising the powers of revision, can exercise any of the powers conferred on a court of appeal including the power under Section 386 of the Code, relevant portion whereof reads as follows:
"386. Powers of the appellate court.--After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the appellate court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may--
(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;"
10. Section 386(a) thus authorises the appellate court to reverse an order of acquittal, find the accused guilty and pass sentence on the person found guilty. However, sub-section (3) of Section 401 of the Code contemplates that the power of revision does not authorise a High Court to convert a finding of acquittal into one of conviction. On the face of it, the High Court while exercising the powers of revision can exercise all those powers which have been conferred on the court of appeal under Section 386 of the Code but, in view of sub-section (3) of Section 401 of the Code, while exercising such power, cannot convert a finding of acquittal into one of conviction.
11. However, in a case where the finding of acquittal is recorded on account of misreading of evidence or non-consideration of evidence or perverse appreciation of evidence, nothing prevents the High Court from setting aside the order of acquittal at the instance of the informant in revision and directing fresh disposal on merit by the trial court. In the event of such direction, the trial court shall be obliged to reappraise the evidence in light of 6 Cr. Rev. No. 291 of 2015 the observation of the Revisional Court and take an independent view uninfluenced by any of the observations of the Revisional Court on the merit of the case. By way of abundant caution, we may herein observe that interference with the order of acquittal in revision is called for only in cases where there is manifest error of law or procedure and in those exceptional cases in which it is found that the order of acquittal suffers from glaring illegality, resulting into miscarriage of justice. The High Court may also interfere in those cases of acquittal caused by shutting out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue has been overlooked. In such an exceptional case, the High Court in revision can set aside an order of acquittal but it cannot convert an order of acquittal into that of an order of conviction. The only course left to the High Court in such exceptional cases is to order retrial.
12. The view, which we have taken finds support from a decision of this Court in Bindeshwari Prasad Singh v. State of Bihar, in which it has been held as follows: (SCC pp. 654-55, para 12) "12.... Sub-section (3) of Section 401 in terms provides that nothing in Section 401 shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. The aforesaid sub-section, which places a limitation on the powers of the Revisional Court, prohibiting it from converting a finding of acquittal into one of conviction, is itself indicative of the nature and extent of the revisional power conferred by Section 401 of the Code of Criminal Procedure. If the High Court could not convert a finding of acquittal into one of conviction directly, it could not do so indirectly by the method of ordering a retrial. It is well settled by a catena of decisions of this Court that the High Court will ordinarily not interfere in revision with an order of acquittal except in exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice. The High Court will not be justified in interfering with an order of acquittal merely because the trial court has taken a wrong view of the law or has erred in appreciation of evidence. It is neither possible nor advisable to make an exhaustive list of circumstances in which exercise of revisional jurisdiction may be justified, but decisions of this Court have laid down the parameters of exercise of revisional jurisdiction by the High Court under Section 401 of the Code of Criminal Procedure in an appeal against acquittal by a private party."
11. The learned District and Additional Sessions Judge Sessions Court No.1, Koderma dealt with the evidence laid during the trial and came to a conclusion that the accused are not liable to be prosecuted for it was a simple civil dispute between the parties which they had already settled amongst themselves.
12. The learned appellate Court has held as under:
"5. The over whole scrutiny of the evidences available on the record under the judicial scale and scan compels to realise the fact that the story of allegation indeed is a true one but in course 7 Cr. Rev. No. 291 of 2015 of trial the matter between the parties appears to be settled and in execution of the settlement the required formalities were also discharged and acknowledged by the respective parties as transpires from para-13 of the cross of the informant/respondent coupled with incorporated facts found in the order of ABP No. 164/07 of the court of Principal District & Sessions Judge and that has legally been brought on the record by the appellants/convict or on their behalf as Ext. D/1 on the record and also that the very nature of case that has been alleged against the appellants/convicts indeed has of civil nature and there are so many verdicts of the Constitutional Court at the issue that in such a nature of cases criminal proceeding is not sustainable nor curable to meet the situation. Not only this in course of final hearing it was brought to the knowledge of the court by the lawyer for the informant/respondent that principal money indeed was paid and received during final hearing of the said ABP but the rest money i.e. the money those were in fact admissible in the case on interest money is indeed pending as the principal money was given to the appellants/convict after having taken the same on interest of 5% from some other ones that needs to be returned in order to secure the payment. Hence, the same ought to be appreciated. In the light of his submissions, paper of agreement was perused and considered the contents those were found mentioned in the agreement and it was convinced that there is no such averment in the body of the agreement nor in the memorandum of appeal. So the contention deserves no appreciation at all here in the appeal. As a result thereof finding the story as such and the evidences available on the record I do feel that the approach of the learned Magistrate of the Court is not justified according to the object of the mandate of legislature and also the ingredients that needs to be substantiated by the prosecution to prove the alleged charges. Hence, the order of conviction passed by the learned Magistrate of the court appears to be erroneous indeed. The same, therefore, needs to be interfered. So is interfered accordingly. The order of conviction of the lower court is thus set aside. Consequently the order of sentence is also given to the same fate and finally the appellants/convict of the case in the background thereof are acquitted of the charges and are also set at liberty alongwith their bailers from liabilities of their respective bail bond and bonds. Since appeal has already been disposed off."
13. I find that the informant entered into an agreement with Mostt. Bimal Devi, Tuntun Kumar Chandrabanshi and Manoj Kumar Chandrabanshi for sale of the landed property comprised under Khatta No. 220/436, Plot No. 5841/6434 having area of 80 decimals. The aforesaid property belongs to the accused is not questioned by the informant rather the case set up by him is that the accused knowingly induced him to enter into an agreement with respect to a property which was already under civil dispute. In this context, I find that the informant even after knowledge about the dispute pending between Tuntun (Bishundhari Ram) and Naresh Agarwal insisted on 8 Cr. Rev. No. 291 of 2015 execution of the sale deed by issuing notice dated 21 st September 2006. From the materials on record, I am unable to gather that the accused had intention from the very beginning to cheat the informant for their unlawful gain. The judgment in Criminal Appeal No. 33 of 2014 has been challenged by Mr. Ashok Kumar Sinha, the learned counsel for the petitioner on several other grounds but those are not sufficient keeping in mind the limitation under the revisional jurisdiction as indicated by the Hon'ble Supreme Court in "Venkatesan".
14. Therefore, I am not inclined to interfere in this matter and accordingly Criminal Revision No. 291 of 2015 is dismissed.
(Shree Chandrashekhar, J.) RKM