Madras High Court
R.Madesh vs The State on 29 July, 2009
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:29.7.2009 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.No.504 of 2007 and M.P.No.1 of 2007 R.Madesh ... Petitioner vs. 1.The State, rep.by Inspector of Police, Kolatur Police Station, Kolathur, Salem District. 2.Balappan 3.Govindan 4.Kunjan 5.Allimuthu 6.Balu 7.Karnan 8.Pulendran 9.Mathu 10.Ranganathan 11.Jayapaul 12.Pakkiyaraj 13.Govindan 14.Madesh ... Respondents Petition filed under Section 397 r/w 401 of Cr.P.C. against the judgment dated 24.3.2006 passed by the Judicial Magistrate No.1, Mettur, in C.C.No.179 of 2003. For Petitioner : Mr.P.Mani For Respondents : Mr.R.Muniyapparaj,G.A. for R1 Mr.M.R.Jothimanian for R2 to R4 ORDER
Challenging and impugning the judgment dated 24.3.2006 passed by the Judicial Magistrate No.1, Mettur, in C.C.No.179 of 2003, this criminal revision case is focussed.
2. Avoiding digressive discussion, pithily and precisely, I would like to portray the facts as under:
(a) The police laid the police report in terms of Section 173 of Cr.P.C. as against respondents 2 to 14 herein for the offence under Sections 447, 427, 379 IPC on the ground that on 27.2.2003, at about 9.45 p.m.(night), near Kaveripuramvinayagapuram, the accused persons constituted an unlawful assembly, armed with deadly weapons, such as crowbar, axe etc., and trespassed into the P.W.1's private pathway and cut and removed his gates worth Rs.1000/- and took them away. Inasmuch as the accused pleaded not guilty, the trial was conducted.
(b) During trial, on the prosecution side P.Ws.1to 6 were examined and Exs.P1 to P5 were marked. On the accuseds' side no oral evidence was adduced, however, Exs.R1 to R3 were marked.
(c) Ultimately, the trial Court acquitted the accused of the offence with which they were charged.
3. Animadverting upon the said acquittal, this revision has been filed on various grounds, the pith and marrow of them would run thus:-
The Court below failed to take into consideration the evidence of the witnesses in the proper perspective. P.Ws.1 to 6 and Exs.P1 to P5 are more than enough to drive home the guilt of the accused, but the Magistrate, without applying the law properly, simply picked holes in the case of the prosecution and acquitted the accused.
5. Heard both sides. The learned Government Advocate would submit that the State has not preferred any appeal as against the judgment of acquittal.
6. The point for consideration is as to whether there is any perversity or non-application of law on the part of the Magistrate in acquitting the accused.
7. The learned counsel for the respondents/accused by inviting the attention of this Court to the fact that the very path way, which the de-facto complainant claims to be his own, is one belonging to the villagers as such and except the said passage, there is no passage/road for the villagers to go to the other village and also to the respective houses and as such, the complainant was not right in contending that it was his own path way and that he had put up the gates. P.W.6-the photographer, who had taken photographs of the alleged scene of crime, clearly and categorically, in his deposition stated that there is no trace of any gates having been in existence there. The learned counsel for the respondents/accused by inviting the attention of this Court to the negatives and the corresponding photos of the alleged scene of occurrence would develop his argument that there is nothing in the photo that there were any gates, which were allegedly thieved away by the respondents/accused.
8. A plain reading of the judgment of the trial Court would indicate and exemplify that P.Ws.2 and 3 are the brothers of P.W.1 and except their interested testimony, there is no other evidence, even though there were other houses situated nearby the alleged scene of crime. The alleged stolen gates were not recovered by the police and for that matter, even the weapons of offence were also not recovered.
9. Indubitably and uncontrovertibly, unassailably and unarguably even before the emergence of this criminal case, there was a civil case instituted at the instance of the de-facto complainant himself, claiming exclusive right over the pathway concerned and that there was no interim injunction granted in that case. Accordingly, the learned counsel for the respondents/accused argued that the revision petitioner, purely for the purpose of harassing and compelling the accused to agree for his unjustifiable claim, has chosen to dish out the false plea and foist the case.
10. At this juncture, my mind is reminiscent and redolent of the following decisions of the Honourable Apex Court (I) AIR 1962 SC 1788 [K.Chinnaswamy Reddy v. State of Andhra Pradesh], an excerpt from it would run thus:
7. 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 manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub-section (4) of Section 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. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be: where the trial court has no jurisdiction to try the case but has still acquitted the accused, or where the trial court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal; and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of Section 439(4). We have therefore to see whether the order of the High Court setting aside the order of acquittal in this case can be upheld on these principles.
(II) AIR 1968 SC 707 [Mahendra Pratap Singh vs. Sarju Singh and another], an excerpt from it would run thus:
7. In revision, the learned Judge in the High Court went into the evidence very minutely. He questioned every single finding of the learned Sessions Judge and gave his own interpretation of the evidence and the inferences to be drawn from it. He discounted the theory that the weapon of attack was a revolver and suggested that it might have been a shot gun or country made pistol which the villagers in the position of Kuldip and Sarju could not distinguish from a revolver. He then took up each single circumstance on which the learned Sessions Judge had found some doubt and interpreting the evidence de novo held, contrary to the opinion of the Sessions Judge that they were acceptable. All the time he appeared to give the benefit of the doubt to the prosecution. The only error of law which the learned Judge found in the Sessions Judges judgment was a remark by the Sessions Judge that the defence witnesses who were examined by the police before they were brought as defence witnesses ought to have been cross examined with reference to their previous statements recorded by the police, which obviously is against the provisions of the Code. Except for this error, no defect of procedure or of law was discovered by the learned Judge of the High Court in his appraisal of the judgment of the Sessions Judge. As stated already by us, he seems to have gone into the matter as if an appeal against acquittal was before him making no distinction between the appellate and the revisional powers exercisable by the High Court in matters of acquittal except to the extent that instead of convicting the appellant he only ordered his retrial. In our opinion the learned Judge was clearly in error in proceeding as he did in a revision filed by a private party against the acquittal reached in the Court of Session.
8. The practice on the subject has been stated by this Court on more than one occasion. In D. Stephens v. Nosibolla only two grounds are 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 misapprehensions of evidence. Again, in Logendranath Jha v. Shri Polailal Biswas, 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 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 reweigh 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. As stated, not one of these points which have been laid down by this Court was covered in the present case. In fact on reading the judgment of the High Court it is apparent to us that the learned Judge has reweighed the evidence from his own point of view and reached inferences contrary to those of the Sessions Judge on almost every point. This we do not conceive to be his duty in dealing in revision with an acquittal when Government has not chosen to file an appeal against it. In other words, the learned Judge in the High Court has not attended to the rules laid down by this Court and has acted in breach of them.
(III) 1973 SCC (cri) 903 [Akalu Ahir and others v. Ramdeo Ram], an excerpt from it would run thus:
This Court then proceeded to observe that the High Court is certainly entitled in revision to set aside the order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal, but it was emphasised that this jurisdiction should be exercised 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. In face of prohibition in Section 439(4) CrPC for the High Court to convert a finding of acquittal into one of conviction, it makes 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 re-trial. No doubt, in the opinion of this Court, as criteria for determining such exceptional cases which would cover all contingencies for attracting the High Courts power of ordering re-trial can be laid down. 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. In Mahendra Pratap Singh (supra), the position was again reviewed and the rule laid down in the three earlier cases reaffirmed. In that case the reading of the judgment of the High Court made it plain that it had re-weighed the evidence from its own point of view and reached inferences contrary to those of the Sessions Judge on almost every point. This Court pointed out that it was not the duty of the High Court to do so while dealing with an acquittal of revision, when the Government had not chosen to file an appeal against it. In other words said this Court, the learned Judge in the High Court has not attended to the rules laid down by this Court and has acted in breach of them.
(IV) 1975 SCC (cri) 543 [Pakalapati Narayana Gajapathi Raju and others v. Bonapalli Peda Appadu and another], an excerpt from it would run thus:
"3. It is clear from these decisions that the revisional jurisdiction cannot be invoked merely because the lower court has not appreciated the evidence properly. The High Court has in its judgment referred to the decisions of this Court but in applying those decisions it has transgressed the limits of its revisional powers."
(V) AIR 1997 SC 2485 [Kaptan Singh and others v. State of M.P. and another], an excerpt from it would run thus:
"5. ......The trial Court is then required to base its conclusion solely on the evidence adduced during the trial; and it cannot rely on the investigation or the result thereof, since this is an elementary principle of criminal law, we need not dilate on this point any further."
11. In the wake of the above judgments, if the records are analysed, including the judgment of the lower Court, I could see no perversity or non-application of mind in acquitting the accused. The leaned Magistrate passed the judgment purely on appreciation of factual evidence, warranting no interference by this Court. If at all there is any non-application of law in interpreting the evidence, then the question of interfering with such a decision would arise. But on the other hand, the Magistrate thoroughly looked into the facts and disbelieved the evidence of P.Ws.1 to 3, warranting no interference by this Court. Hence, I could see no merit in the revision. Accordingly, the criminal revision case is dismissed.
Msk 29.7.2009
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To
The Judicial Magistrate No.1, Mettur
G.RAJASURIA,J.
msk
Crl.R.C.No.504 of 2007
29.7.2009