TMI Blog1973 (5) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... has, therefore, to be scrutinised with care so that neither the guilty party wrongly escapes on the plea of enmity, nor an innocent person gets wrongly convicted on that basis. 3. In this case there were three eye witnesses. Ramdeo Ram, the victim of the fire shots, appeared as P.W. 1. Puljharia as P.W. 9 and Ploughman Bhuidhar Chamar as P.W. 10. The trial Judge after considering the evidence on the record felt no doubt about the fact that Ramdeo Ram had been injured by gun shots, but he did not feel impressed by the prosecution evidence with respect to the manner in which the occurrence had taken place, with the result that in his opinion, the prosecution had not been able to prove the charges against the accused persons beyond reasonable doubt. 4. The State did not file any appeal against the order of acquittal. Ramdeo Ram, the victim of the gun shots, however, presented in the High Court in January, 1969 a revision petition under Sections 435 and 439, Cr.P.C. from the order acquitting the four accused persons. From a note on the printed application for revision, it appears that the name of Jagarnath Kanu was expunged from the array of respondents in the revision : vide, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l in this Court, it was contended that the High Court had over-stepped the limits of its power in dealing with revisions against orders of acquittal at the instance of private parties It was further contended that as a court of revision, the High Court was not justified in examining the evidence as if it was a court of appeal and was, as such, required to see if the evidence had been correctly appraised by the trial court. Finally it was strenuously pressed that order directing a re-trial on the facts and circumstances of this case was not only uncalled for but was calculated to result in grave injustice to the appellant. 6. Turning first to the legal position, it is necessary to bear in mind that an appeal is a creature of statute and there is no inherent right of appeal. Section 404, Cr.P.C. expressly so provides. In U.J.S. Chopra v. State of Bombay [1956] 2 S.C.R. 94. while discussing the historical background of Section 439(6), Cr.P.C., S.R. Das, J., as then he was, pointed out that in England there is no provision for an appeal by the Crown against an order of acquittal and in our country Section 407 of the CrPC 1861 prohibited an appeal from acquittal. The CrPC 1872 by Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to make one portion of the CrPC conflict with another, as would seem to be the case when in the garb of exercising revisional power, the High Court in effect exercises the power of appeal in face of statutory prohibition. 8. The unrestricted right of appeal from acquittal is specifically conferred only on the State and a private complainant is given this right only when the criminal prosecution was instituted on his complaint and then also subject to special leave by the High Court. It is further provided in Section 439(5), Cr.P.C. that where no appeal is brought in a case in which an appeal is provided, no proceedings by way of revision would be entertained at the instance of the party who could have appealed. The State Government, therefore, having failed to appeal, cannot apply for revision of an order of acquittal. Again on revision, the High Court is expressly prohibited from converting an acquittal into a conviction. Considering the problem facing the Court in this case in the background of this scheme, the High Court when approached by a private party for exercising its power of revision from an order of acquittal, should appropriately refrain from interfering except ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quoting certain passages from those decisions 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, Jogendranath Jha's case stresses that it is not open to a High Court to convert a finding of acquittal 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 re-trial. 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 formally complied with Sub-section (4) by directing only a re-trial 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 appellants 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 prosecuti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not the duty of the High Court to do so while dealing with an acquittal on 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 . 9. In the present case also we feel that the High Court has reweighed the evidence from its own point of view and though at the outset it noticed the correct legal position and expressly acknowledged the limits within which it was called upon to decide whether or not to interfere with the order of acquittal, in actual practice, it does not seem to have attended to the rules laid down by this Court in the four decisions noticed by it. As observed in D. Stenben's case (supra), the revisional jurisdiction under Section 439, Cr.P.C. is not to be lightly exercised when invoked by a private party against an order of acquittal against which the Government has a right of appeal under Section 417. This jurisdiction is not ordinarily invoked or used merely because the lower court has taken a wrong view of the law or mis-appreciated the evidence on record. Again, as pointed out ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
