PETITIONER:
KHETRABASI SAMAL ETC.
Vs.
RESPONDENT:
STATE OF ORISSA ETC.
DATE OF JUDGMENT:
14/08/1969
BENCH:
MITTER, G.K.
BENCH:
MITTER, G.K.
SIKRI, S.M.
REDDY, P. JAGANMOHAN
CITATION:
1970 AIR 272 1970 SCR (1) 880
1969 SCC (2) 571
CITATOR INFO :
R 1973 SC1274 (17)
R 1975 SC 580 (4)
ACT:
Code of Criminal Procedure (5 of 1898), s. 417(1) and
(3)--Case of assault--Case against some accused started on
police report and against others on complaint to
Magistrate--Two cases clubbed and tried together-Accused
acquitted--Appeal against acquittal against accused against
whom case initiated on police report--Whether complainant
could file or only State competent to life.
HEADNOTE:
A first information report to the police was lodged
against the appellants and some others--ten persons in all,
for having taken part in an assault and causing hurt to the
victim of the assault. On the police report, the Magistrate
took cognizance of the case. More than six were after the
incident, the victim filed a complaint before the Magistrate
naming thirty-one persons (including the ten persons against
whom the first in formation was given) as: his assailants,
and the Magistrate took cognizance of the case against the
other twenty-one accused as a separate case. On the
application of the complainant (victim), the two. cases, one
on the police report and the other on the private complaint,
were clubbed and tried together. The Magistrate, on an
examination of the evidence, held that there was no proof
beyond reasonable doubt that the accused persons committed
the assault and acquitted all of them. The complainant
then filed an appeal under s. 417(3), Criminal Procedure
Code, to the High Court. The appellants, against whom
cognizance of the case was taken on the police report,
challenged the maintainability of the appeal on the ground
that the appeal against their acquittal was maintainable
only if preferred by the State Government under s. 417(1).
The High Court overruled the objection, reappraised the
evidence of the witnesses, upset the finding of the
Magistrate and convicted the appellants.
In appeal to this Court, on the questions: (1 ) As to
the maintainability of the appeal by the complainant; and
(2) Whether the matter should be sent back to the High Court
for disposal under s. 439 of the Code,
HELD: (1 ) Though the two. cases could be clubbed
together for convenience of trial under s. 239 of the Code
the nature and identity of the cases in relation to their
appealability under s. 417 were not altered. In the case
started against the appellants on the police report the
appeal against acquittal could have been filed only by the
State Government, and if no. such appeal was filed, the
complainant could only invoke the revisional powers of the
High Court under s. 439 if proper grounds were present. [883
A-C]
(2) The High Court can exercise its revisional powers
under s. 439 when invoked by a private complainant against
an order of acquittal against which the State has a right
of appeal under 's. 417, only in exceptional cases when
there is some glaring defect in the procedure and there is a
manifest error on a point of law and consequently there has
been a flagrant miscarriage of justice. The present case
however is one of mere appraisal of evidence. In such a case
the High Court under s. 439, could not re-examine the
evidence or order a retrial. Therefore, the case was no.t a
fit one for sending back to the High Court. [883 E-F; 884 E-
G; 885 A. F-H]
D. Stephens v. Nosibolla, [1951] S.C.R. 284, Logendranath
jha v. Polailal Biswas [1951] S.C.R. 676 and K. Chinnaswamy
Reddy v. State A..p. [1963] 3 S.C.R. 412, 418, followed.
881
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos.
160) and 171 of 1967.
Appeals by special leave from the judgment and order
dated May 12, 1967 of the Orissa High Court in Criminal
Appeal No. ‘194 of 1965.
S.N. Anand, for the appellants (in Cr.A. No. 160 of 67).
R.K. Garg, S.C.Agarwal, D.P. Singh, Sumitra Chakravarty
and Uma Dutt, for the appellants (in Cr.A. No.’ 171 of
1967).
V.C. Mahajan and R.N. Sachthey, for the respondent (in
Cr.A. No. 160 of 1967).
The Judgment of the Court was delivered by
Mitter, J. These two appeals by special leave are from
one judgment of the High Court of Orissa hearing an appeal
from an order of acquittal of 31 persons accused on charges
under as. 147, 323 and 325 of the Indian Penal Code for
being members of an unlawful assembly and having voluntarily
caused hurt and inter alia a grievous one by dislocating a
tooth by means of a knife-like thing of one Jagabandhu
Behera, the appellant before the High Court.
The incident is alleged to have happened on October 4,
1963 at about 11 a.m. in village Anantapur in course of
which the accused persons are said to. have assaulted
Jagabandhu Behera with lathis and sharp instruments. The
motive for the crime was said to be enmity arising out of
Gram panchayat election and previous litigation between
Jagabandhu Behera and Khetrabasi Samal, one of the said 31
persons. The first information report was lodged at 5 p.m.
by one Maguni Charan Biswal who however was not examined at
the trial. In this report ten persons were stated to have
taken part in assaulting and hurting Jagabandhu. More than
six weeks thereafter Jagabandhu filed a complaint before a
Magistrate in which he named 31 persons including those
against whom the first information report had been lodged as
his assailants. The complainant stated therein that he had
been assaulted so mercilessly as to render him unconscious
and he recovered consciousness in Anantapur Dispensary where
he was treated by a doctor. From there he was taken to a
hospital in Cuttack and was lodged there till November 18,
1962.
The Magistrate ‘examined the complainant on the same day
and directed another Magistrate of the First Class to
inquire and report. On January 23, 1963 after getting the
report of such inquiry and hearing the person against whom
the complaint was made on their protest petition, the
Magistrate held “that there was a prima facie case against
the accused persons under ss. 147/ 323 I.P.C. except the
first ten accused persons as per the complaint petition
since they had already been sent for trial in
882
G.R. No. 1943 of 1962″. He took cognizance against accused
persons from serial Nos. 11 to 31 as per the complaint
petition under ss. 147/323 I.P.C.
The G.R. case had already been started on the basis of
the first information report. On July 12, 1963 the
complainant Jagabandhu Behera filed a petition to club the
complaint case along with the analogous G.R. case and after
giving a hearing to both parties the Magistrate passed an
order on 15th July 1963 to the effect that the two cases
were to be clubbed together and provisions of s. 252 Cr.P.C.
were to be followed. The proceedings went on for an
inordinately long time and ultimately on August 23, 1965 the
trying Magistrate delivered a judgment acquitting all the
accused. Jagabandhu Behera filed an appeal to the High
Court under s. 417(3) of the Code of Criminal Procedure and
the grounds urged in support of such appeal were
substantially based on the. alleged failure of the
Magistrate to take a proper view of the evidence.
Before the High Court, a point was taken on behalf of
the respondents challenging the maintainability of the
appeal as against accused 1 to 10 against whom cognizance
was taken on the police report. Among these ten persons
are the appellants in the two appeals to this Court. It was
urged that as these ten persons had figured as accused in
G.R. Case No. 1943 of 1962 an appeal against their acquittal
would not lie at the instance of the complainant under s.
417(3) but would only be maintainable if preferred under s.
417(1) by the State Government. It was also contended that
mere clubbing together of the two cases, the G.R. case and
the complainant’s case, for joint trial would not change the
character thereof so as to convert the G.R. case into a
complaint case.
The High Court over-ruled this objection mainly on
the ground that s. 239 Cr.P.C. allowed the trial of a number
of persons whether accused of the same offence or of
different offences if these were committed in the course of
the same transaction. The High Court then considered the
merits of the appeal, examined the evidence of the
prosecution witnesses and took the view that the testimony
of prosecution witnesses 1, 2 and 5 who claimed to have
witnessed the incident themselves had been discarded by the
Magistrate on extraneous considerations. Sifting the
evidence for itself the High Court held that seven of the
accused i.e. the appellants to this Court were guilty of
some of the charges framed against them and passed sentences
ranging from three months to six months in different cases
after setting aside the acquittal.
It was contended before us on behalf of the appellants
that the appeal to the High Court was incompetent and in our
view this contention must be accepted. There were two
separate cases
883
of which cognizance’ was taken separately. One was started
on the basis of a police report while the other was on the
complaint of Jagabandhu Behera. As the accused in both the
cases were said to have committed the offences. in the.
course. of the same transaction, the cases were clubbed
together for the purpose of trial and such a course was
clearly permissible under s. 239 Cr.P.C. That did not
however alter the nature of the cases so as to affect their
appealability under s. 417. The two cases retained their
individuality except for the convenience of the trial. If
the cases had ended in conviction they would have had to be
separately recorded. The first ten accused would have
had to appeal from their conviction and sentence in the G.R.
case and similarly the remaining accused from the complaint
case. If the State. did not think it proper to direct the
Public Prosecutor to present an appeal to the High Court
from the order of acquittal in the G.R. case it might have
been open to the complainant to. invoke the powers of the
High Court under s. 439 of the’ Code if proper grounds; for
revision were present.
Counsel for the respondents. argued that this was a case
where we should not allow the appeal on the ground that the
High Court had gone wrong in exercising its powers under s.
417(3) of the Code but should send the matter back to the
High Court for disposal according to law including the
powers under s. 439 of the Code. It was said that
Jagabandhu Behera had been beaten up. by a number of persons
in a public place in broad day light and although there
might be infirmities in the evidence adduced on behalf of
the prosecution and contradictory statements made by some of
the prosecution witnesses, we should not put an end to the
proceedings here but send the matter back to the High Court
for proper disposal.
In our view, the law does not permit such a course to be
adopted on the facts of this case. The powers of the High
Court under s. 439 Cr.P.C. although wide are subject to
certain limitations. Section 439 (4) expressly provides
that the section shall not be deemed to authorise the High
Court to convert a finding of acquittal into one of
conviction.
This Court has had to. examine the jurisdiction of the High
Court under this section on several occasions. In D.
Stephens v. Nosibulla (1) it was pointed out (see at p. 291)
that :-
“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
[1951] S.C.R. 284.
881
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 take.n a
wrong view of the law or misapprehension the
evidence, on record”.
Again in Logendranath Jha & Others v.
Polailal Biswas(1) where the High Court had
set aside an order of acquittal of the
appellants by the Sessions Judge and directed
their retrial, this Court (see at p. 681) said
:-
“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 reappraise 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
characterising 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”. In K.
Chinnaswamy Reddy v. State of Andhra
Pradesh(2). The court proceeded to define the
limits of the jurisdiction of the High Court
under s. 439 of the Criminal Procedure Code
while setting aside an order of acquittal. It
was said:
“: ….. this jurisdiction should in
our opinion be exercised by ‘the High Court
only m exceptional cases, when there is some
glaring defect in the procedure and there is a
manifest error on a point of law and
consequently there has been a flagrant
miscarriage of justice. 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 wh
ere the
appeal court has wrongly held evidence which
was admitted by the trial court to be
inadmissible, or where material evidence has
been overlooked
(1) [1561] S.C.R. 676. (2) [1963] 3 S.C.R.
412, 418.
885
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”.
It may be that a case not covered by any of the
contingencies mentioned above may still arise. But, where,
as here, the appeal court (the High Court in tiffs case) has
set aside the order of acquittal almost entirely on the
ground that the Magistrate should not have disbelieved the
three eye witnesses, viz., P.Ws. 1, 2 and 5, the case
clearly falls within the contingencies mentioned in the
above decision of this Court. The High Court judgment does
not show that the trial court shut out any evidence which
the prosecution wanted to produce or admitted any in
admissible evidence or overlooked any material evidence.
The Magistrate examined the evidence produced by the
prosecution. According to him, there was strong enmity
between the two parties of Jagabandhu Behera and Khetrabasi
Samall and although the incident was supposed to have: taken
place in front of a large number of shops and before a large
gathering, only one person from those shops, P.W. 5 who was
a chance witness occasionally going to the place for the
purpose of carrying on his business in fish, was examined by
the prosecution and there was no explanation for not
examining the other witnesses named in the complaint
petition. P.W. 1, one of the witnesses mentioned in the
judgment of the High Court and relied on by it was the
complainant’s father-in-law and as such a person interested
in the success of the prosecution. Relying on the testimony
of the doctor who had examined Jagabandhu Behera, the
Magistrate found himself unable tO accept the evidence of
the prosecution witnesses to the effect that the injury to
the tooth was caused by a sharp-cutting instrument in which
case other external injuries could not have been avoided.
The Magistrate was doubtful as to whether the accused
persons had any hand in the commission of the crime and
although the assault on Jagabandhu was a brutal one there
was, according to the Magistrate, no proof beyond
reasonable doubt that it was the accused persons who had
committed it. The High Court proceeded to reappraise the
evidence of the witnesses and upset the finding of the
Magistrate thereon on the ground that he “had not taken the
trouble of sifting the grain from the chaff”. Clearly such
a course is not permissible under s. 439 of the Criminal
Procedure Code. Nor in our opinion the facts, and
circumstances of this case warrant the ordering of a re-
trial by the High Court if it felt disposed to exercise
powers under s 423 Cr.P.C. expressly included in s. 439.
Sending the ease back to the High Court can serve no useful
purpose.
As the appeal to the High CoUrt was incompetent, we allow
the appeals and direct the cancellation of their bail bonds.
V.P.S. Appeal allowed.
886