PETITIONER:
LOGENDRANATH JHA & OTHERS
Vs.
RESPONDENT:
SHRI POLAILAL BISWAS.
DATE OF JUDGMENT:
24/05/1951
BENCH:
SASTRI, M. PATANJALI
BENCH:
SASTRI, M. PATANJALI
KANIA, HIRALAL J. (CJ)
DAS, SUDHI RANJAN
BOSE, VIVIAN
CITATION:
1951 AIR 316 1951 SCR 676
CITATOR INFO :
F 1955 SC 584 (3)
R 1962 SC1788 (5,6,8)
RF 1968 SC 707 (8)
R 1970 SC 272 (10)
RF 1973 SC2145 (4,8)
R 1975 SC 580 (4)
R 1978 SC 1 (15)
R 1986 SC1721 (9)
ACT:
Criminal Procedure Code (V of 1898), s. 439 (4)--Revi-
sion against acquittal--High Court's powers--Reversal of
findings of facts--Impropriety of.
HEADNOTE:
Though sub-s. (1) of s. 439 of the. Criminal Procedure
Code authorises the High Court to exercise in Its discretion
any of the powers conferred on a court of appeal by s. 423,
yet sub-s. (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
can in the absence of any error on a point of law re-ap-
praise the evidence and reverse the findings of facts on
which the acquittal was based, provided only it stops short
of finding the accused guilty and passing sentence on him,
by ordering a re-trial.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 17
of 1951.
Appeal against a Judgment and. Order dated 22nd January,
1951, of the High Court of Judicature at Patna (Imam J.) in
Criminal Revision No. 1533 of 1950
677
S.P. Sinha (P.S. Safeer and K.N. Aggarwal, with him) for
the appellants.
The respondent did not appear.
1951. May 24. The Judgment of the Court was delivered by
PATANJALI SASTRI J.–This is an appeal by special leave
from an order of the High Court of Judicature at Patna
setting aside an order of acquittal of the appellants by the
Sessions Judge, Purnea, and directing their retrial.
The appellants were prosecuted for alleged offences
under sections 147, 148, 323, 324, 326, 302 and 302/149 of
the Indian Penal Code at the instance of one Polai Lal
Biswas who lodged a complaint against them before the po-
lice. The prosecution case was that, while the complainant
was harvesting the paddy crop on his field at about 10 a.m.
on 29th November, 1949, a mob of about fifty persons came on
to the field armed with ballams, lathis and other weapons
and that the first appellant Logendranath Jha, who was
leading the mob, demanded a settlement of all outstanding
disputes with the complainant and ,said he would not allow
the paddy to be removed unless the disputes were settled.
An altercation followed as a result of which Logendra or-
dered an assault by his men. Then Logendra and one of his
men, Harihar, gave ballam blows to one of the labourers,
Kangali, who fell down and died on the spot. Information was
given to the police who investigated the case and submitted
the charge-sheet. The committing Magistrate found that a
prima facie case was made out and committed the appellants
to the Court of Sessions for trial.
The appellants pleaded not guilty alleging inter alia,
that Mohender and Debender, the brothers of Logendra (appel-
lants 2 and 3) were not present in the village of Dandkhora
with which they had no concern, as all the lands in that
village had been allotted to Logendra at a previous parti-
tion, that Logendra himself was not in the village at the
time of the occurrence but arrived
678
soon after and was dragged to the place at the instance of
his enemies in the village and was placed under arrest by
the Assistant Sub-Inspector of Police who had arrived there
previously. It was also alleged that there were two factions
in the village, one of which was led by one Harimohan, a
relation of the complainant, and the other by Logendra and
there had been numerous revenue and criminal proceedings and
long-standing enmity between the families of these leaders
as a result of which this false case was foisted upon the
appellants.
The learned Sessions Judge examined the evidence in
great detail and found that the existence of factions as
alleged by the appellants was true. He found, however, that
the appellants’ plea of alibi was not satisfactorily made
out, “but the truth of the prosecution”, he proceeded to
observe, “cannot be judged by the falsehood of the defence
nor can the prosecution derive its strength from the weak-
ness of the defence. Prosecution must stand on its own legs
and must prove the story told by it at the very first stage.
The manner of occurrence alleged by the prosecution must be
established beyond doubt before the accused persons can be
convicted”. Approaching the case in this manner and seeing
that the basis of the prosecution case was that Polai had
batai settlement of the disputed land and had raised the
paddy crop which he was harvesting when the occurrence took
place, the learned Sessions Judge examined the evidence of
the prosecution witnesses who belonged to the opposite
faction critically and found that the story of the prosecu-
tion was not acceptable. Polai, who was alleged to have
taken the land on batai settlement from his own maternal
grandmother Parasmani who brought him up from his childhood,
was only 19 years old and unmarried and was still living
with his grandmother. He did not claim to be a bataidar of
any other person. “In these circumstances”, said the learned
Judge, “it does not appear to me to be probable that Polai
would have been allowed to maintain himself by running adhi
cultivation of his mamu’s land in the lifetime of
679
his nani who has brought him up from his infancy like her
own child. Nor does it appeal to me that the unmarried boy
Polai would have undertaken upon himself the task of run-
ning batai cultivation of the lands of his mamu where he has
been living since his childhood without any trouble, more
particularly in view of the heavy expenses of cultivation
brought out by the evidence of Tirthanand (P.W. 14)”. He,
therefore, disbelieved the whole story that Polai had taken
the lands of his grandmother or his uncles as bataidar for
cultivation and that he was engaged in harvesting the paddy
crop on the lands at the time of the occurrence. This false
story, in his opinion, “vitally affected the prosecution
case regarding the alleged manner of the occurrence”. He
also found a number of discrepancies and contradictions in
the evidence of the prosecution witnesses, which, in his
view, tended to show that the prosecution was guilty of
concealment of the real facts. ‘ ‘In view of such conceal-
ment of real facts,” the learned Judge concluded, “it does
not appear to me to be possible to apportion liability and
to decide which of the two parties commenced the fight and
which acted in self-defence. Such being the position, it is
not possible at all to hold either party responsible for
what took place. In such a view of the matter coupled with
the fact that the manner of occurrence alleged by the prose-
cution has not been established to be true beyond doubt, I
think that the accused persons cannot be safely convicted of
any of the offences for which they have been charged.” The
learned Judge accordingly acquitted the appellants of all
the charges framed against them.
Against that order the complainant Polai preferred a
revision petition to the High Court under section 439 of the
Criminal Procedure Code., The learned Judge who heard the
petition reviewed the evidence at some length and came to
the conclusion that the judgment of the learned Sessions
Judge could not be allowed to stand as the acquittal of the
appellants was “perverse’ ‘. In his opinion, “the entire
judgment displays a lack
680
of true perspective in a case of this kind. The Sessions
Judge had completely misdirected himself in looking to the
minor discrepancies in the case and ignoring the essential
matters so far as the case is concerned,” and there was no
justifiable ground for rejecting the prosecution evidence
regarding the cultivation and harvesting by Polai. And he
concluded with the warning “I would, however, make it per-
fectly clear that when the case is re-tried, which I am now
going to order, the Judge proceeding with the trial will not
be in the least influenced by any expression of opinion
which I may have given in this judgment.”
On behalf of the appellants Mr. Sinha raised two conten-
tions. In the first place, he submitted that having regard
to section 417 of the Criminal Procedure Code which provides
for an appeal to the High Court from an order of acquittal
only at the instance of the Government, a revision petition
under section 439 at the instance of a private party was
incompetent, and, secondly, that sub-section (4) of section
439 clearly showed that the High Court exceeded its powers
of revision in the present case in upsetting the findings of
fact of the trial Judge. ‘ We think it is unnecessary to
express any opinion on the first contention of Mr. Sinha
especially as the respondent is unrepresented, as we are of
opinion that his second and alternative contention must
prevail.
It will be seen from the judgment summarised above that
the learned Judge in the High Court re-appraised the evi-
dence in the case and disagreed with the Sessions Judge’s
findings of fact on the ground that they were perverse and
displayed a lack of true perspective. He went further and,
by way of “expressing in very clear terms as to how perverse
the judgment of the court below is”, he indicated that the
discrepancies in the prosecution evidence and the circum-
stances of the case which led the Sessions Judge to discred-
it the prosecution story afforded no justifiable ground for
the conclusion that the prosecution failed to establish
their case. We are of opinion that the learned Judge in the
High Court did not properly appreciate the
681
scope of inquiry in revision against an order of acquittal.
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 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. 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. No
doubt, the learned Judge formally complied with sub-section
(4) by directing only a retrial of the appellants without
convicting them, and warned that the court retrying the case
should not be influenced by any expression of opinion con-
tained in his judgment. But there can be little doubt that
he loaded the dice against the appellants, and it might
prove difficult for any subordinate judicial officer dealing
with the case to put aside altogether the strong views
expressed in the judgment as to the credibility of the
prosecution witnesses and the circumstances of the case in
general.
We are of opinion that the learned Judge in the High
Court exceeded his powers of revision in dealing with the
case in the manner he did, and we set aside his order for
retrial of the appellants and restore the order of acquittal
passed by the Sessions Judge.
Appeal allowed.
Agent for the appellant: Kundan Lal Mehta.
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