JUDGMENT
Bhuvaneshwar Prasad, J.
1. In this case both the parties have been heard on the point of admission.
2 This application under Sections 397 and 401 of the Code of Criminal Procedure 1973, (in short the ‘Code’) has been filed under the following circumstances: The petitioner happens to be the informant of Gopalpur P.S. Case No 48/87. Briefly stated the facts of the case are that on 15.3.1987 opposite-party Nos. 2 to 5 had set fire to the house of the petitioner taking advantage of the facts that it was the proceeding night of the Holi festival. Accordingly this case was instituted under Section 435 of the Indian Penal Code before the Police Station and the Police submitted charge-sheet after completing the investigations. The cognizance was taken by the learned Sub-divisional Magistrate, Naugachhiya and the case was transferred to the court of the Judicial Magistrate, 1st class for trial.
3. It appears that the learned Magistrate, Sri Ram Siya Singh before whom the trial was held bad acquitted opposite-party Nos. 2 to 5 by his judgment dated 20.11.1988. It is against this judgment of the acquittal the present revision application has been filed.
4. In this revision application it has been contended that the impugned judgment is bad in law as well as wrong on facts. As many as four eyewitnesses were examined in this case who have supported the case of the prosecution. The learned trial court has committed an error by holding that the petitioner had stated before him that his signature on the fardbeyan was obtained by the police by force. His only grievance was that the police had not properly recorded his statement in the fardbeyan. The learned trial court has committed error of law in discarding the evidence of P. W. 2 and disbelieving the prosecution case on the ground that no boundary witness has been examined. The learned court below has also wrongly discarded the evidence of P.Ws. 3 and 4. On these grounds, amongst others it was contended that the impugned judgment be set aside.
5. I have stated the points mentioned in this revision application in detail in order to properly appreciate the case of the petitioner and to apply the relevant law in this case.
6. In this case the learned Counsel for opposite-party Nos. 2 to 5 had also been heard. He has invited my attention to the case of K. Chinnaswamy Reddy v. State of Andhra Pradesh . In this case it was held that no doubt it is open to a High Court in revision to set aside an order of acquittal even at the instance of a private parties, though the State may not have thought fit to appeal; but this jurisdiction should 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 has been a flagrant miscarriage of justice. Sub-section (4) of Section 439 of the Code, 1898 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 the acquittal into one of conviction by the indirect method of ordering retrial. This places limitation 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. The Hon’ble Supreme Court has further held that it is not possible to Jay down the criteria for determining such exceptional cases which would cover all contigencies. It however proceeded to give by way of illustrations sonic of those cases which would justify the High Court in interfering with a finding of acquittal in revision, After enumerating those cases by way of illustrations it was held that 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 High Court was doing indirectly what it could not be directly in view of the provisions of Section 439(4) of the Code. It may be mentioned here that this section corresponds Section 401(3) of the present Code.
7. The extent of the jurisdiction of the High Court in the matter of interfering in revision against an order of acquittal has been considered by the Hon’ble Supreme Court from time to time. In the case of D. Stephens v. Nosibolla , it was observed as follows:
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 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 taken a wrong view of the law or misappreciated the evidence on the record.
Again in the case of Logendranath Jha v. Shsi Polailal Biswas . Supreme Court (Sic) observed:
Though Sub-section (1) of Section 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 Section 423, yet 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 can 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 stops short of finding the accused guilty and passing sentence on him by ordering a retrial.
In the case of K. Chinnaswamy Reddy, (supra) after taking a note of these two decisions of was further observed as follows:
These two cases clearly lay down the limits of the High Court’s jurisdiction to interfere with an order of acquittal in revision in particular, Logendranath Jha’s case , stresses that it is not open to a High Court to convert a finding of accuittal into one of conviction in view of the provisions of Section 439(4) and that the High Court cannot do this even indirectly by ordering retial. What had happened in that case was that the High Court reversed pure findings of facts based on the trial court’s appreciation of evidence but formully 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 contained in the judgment of the High Court. In that connection this Court observed that there could be little doubt that the dice was loaded against the appellant’s of that case 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.
8. As stated above in the case of K. Chinnasmamy Reddly, (supra) certain cases have been given by way of illustration of as the case of exceptional nature in which High Court can justifiably interfere with the order of acquittal. It is clear that those cases are only illustrative and not exhaustive, as becomes clear from the judgment of Hon’ble Supreme. Court in the case of Mahendra iPratap Singh v. Sarju Singh . In this case all the three cases mentioned above were taken into consideration. Referring to the case of K. Chinnaswamy Reddy, (supra). It was observed that “although the list given by this Court in the said case is not exhaustive, it is obvious that the defects in the judgment under revision must be analogous to those actually ndicated by this Court”. From this it would appear that the exceptional circumstances should either be those enumerated in the judgment, in the case of K. Chinnaswamy Reddy, (supra) or those others which are analogous to those exceptional circumstances.
9. In the case of Ayodhya Dube v. Ram Sumer Singh , the scope of the revisional power of the High Court under Section 401 of the Code against the judgment of acquittal has been explained. Further the decision of the case of K. Chinnaswamy Reddy supra also came up for consideration in this case before the Hon’ble Supreme Court. In the said case the Sessions Judge had acquitted tee accused by ignoring the probative value of F.I.R. and reliable testimony of eye-witnesses and his judgment was full of inconsistencies and consisted of faulty reasoning. The High Court in revision directed retrial by setting aside the acquittal. The Hon’ble Supreme Court held that this order of the High Court was justified. After making a mention of the decision in K. Chinaswamy Reddy, (supra) it has been observed as follows:
…We only wish to say that the Criminal Justice System does nut admit of ‘pigeonholding’. Life and the Law do not fall neatly into slots. When a Court starts laying down rules enumerated (1), (2), (3), (4) or (a), (b), (c), (d), it is arranging for itself traps and pitfall. Categories, classifications and compartments, which statute does not mention, all tend to make law’ less flexible, less sensible and less just.
10. The learned Counsel for opposite-party Nos. 2 to 5 has placed reliance on the case of Akalu Ahir v. Ramdeo Ram 1973 BBCJ 498. In this case it was held that the High Court has been invested with this power to see that justice is done in accordance with the recognised rules of Criminal Jurisprudence and that the sub-ordinate court do not exceed their jurisdiction or abuse the power conferred on them by law. As a general rule, this power in spite of the wide language of Sections 435 and 439, Criminal Procedure Code does not contemplate interference with the conclusions of fact in the absence of serious legal infirmity and failure of justice. Further in this decision the extent of the High Court power of revision has been mentioned. The cases mentioned above were taken into consideration while passing this judgment. From all these decisions it can easily be found out under what circumstance the revisional power of this Court can be invoked to set aside an order of acquittal passed by the subordinate court.
11. I have heard the learned Counsel for the petitioner in detail with respect to tine judgment under revision. I have also perused and closely scrutinsed this judgment. I find that there has been proper discussion of the evidence of P. Ws. and various facts and circumstances of the case. The learned trial court has taken into consideration the fact that the accussed of the case were relations of the informant and they used to live in the same angan. He has also taken into the fact that there was enmity between the parties. He has advanced cogent reasons for disbelieving’ of the evidence of P. Ws. with respect to the alleged occurrence. The learned Counsel appearing on behalf of the petitioner at this stage, prima facie, has not been able show to such infirmity in the judgment which would warrant interference in exercise of the revisional power of this Court as mentioned in the case of K. Chinnaswamy Reddy (supra).
12. As such I do not find that this case is fit for admission, it is, accordingly rejected.
