Bagala Prosad Kar v. Seikh Johad — 1986 DIGILAW 298 (CAL)

JUDGMENT 1. THIS is. an appeal filed by the complainant against the order of acquittal dated 10. 8. 78 passed by Sri D. P. Shama, Judicial Magistrate, 1st class, Bankuru in Case no. O. R. 958/74/t. R. 192/76. The complainant lodged a first information repot before the Officer- in- Charge, Bariora Police Station in the district of Bankura or a on 22,7. 74 alleging that on that date at about 6. 30/700 am, when he had gone to his with four plough and with manick ch. Garai and other labourers in order to transplant paddy seedlings there in and when they were working on the held for above 22/23 Minutes, the accused respondents along with others armed with the, tangi, from rods etc. attacked them and a used Sk. Johad assented the complaint with jathi and accused Jotil assaulted him on he right should with iron cod and accused 5k, 3ohad attacked him with the tangi, but he anyhow escaped. Thereafter the accused persons assaulted his men and snatched away his ploughs and cattle. The police on investigation submitted charge sheet against the accused person. Charges were framed against the accused persons under sections 324-, 379 and 411 of the Indian Penal Code which was read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried. Their defence is that he was all along in possession of the disputed land, that the complainant along with 10/11 persons formed an unlawful assembly with the common object of dispossession the accused Johad his brother from the said land and started damaging the transplanted paddy and also the seed bed, that the vendor of Bagala to whom Bagla claims to have purchased 50 decimals of land m plot No. 62 of Bahadur pur mouza which is the disputed land never possessed the disputed land that when the accused. "johad and others protested to the illegal acts being committed by the complainant party the complainant and his men assaulted them and others for which a criminal case has been started against them and as a counterblast this false case has been started in order to save themselves. 2. "johad and others protested to the illegal acts being committed by the complainant party the complainant and his men assaulted them and others for which a criminal case has been started against them and as a counterblast this false case has been started in order to save themselves. 2. THE learned magistrate on considering the whole evidence on record arrived at the finding that the prosecution has failed to prove that the complainant was in actual possession of the disputed land on the alleged date of occurrence, that the documents produced would clearly indicate that he was not in such possession, that in the circumstances the defence story appears to be probable, that if the accused party were in possession and. the complainant party went to cultivate the land forcibly even if the complainant party received some injuries the accused cannot be convicted under section 324 as they had the right of private defence of person as well property. It is also contended trial it is-admitted that there is a counter case, that the accused party also received injury and that the complainant did not explain. as to hove the accused could also receive the injuries. With these findings the learned Magistrate held tire injuries. With these findings the learned Magistrate held that the'' prosecution has hopelessly failed to prove the case as alleged against the accused persons and on the other hand, the defence case is well prove by the evidence of the prosecution witnesses themselves in the circumstances the learned magistrate acquitted the accused respondents under section 248 (1)of the Code of Criminal Procedure and directed the seized articles to be returned to the persons from whom seized. Being aggrieved the complainant has preferred this appeal on taking special leave. It is contended in the memorandum of appeal that the learned magistrate has failed to consider that the evidence on record has clearly provided the charge under section 379 of the indian Penal Code and that the learned magistrate has not considered this aspect of the case at all. It is contended in the memorandum of appeal that the learned magistrate has failed to consider that the evidence on record has clearly provided the charge under section 379 of the indian Penal Code and that the learned magistrate has not considered this aspect of the case at all. It is also contended that the seized cattle and ploughs were recovered by the police from the khamar of the accused persons who would clearly prove that the accused persons actually snatched away the ploughs and cattle and the charge under section 3 79 of the Indian Penal Code must be held to have been proved beyond all reasonable doubt. . It is further contended that the learned magistrate failed to consider that the right of private defence if at all available to the accused respondents would not entitle the accused respondent to commit there in respect of ploughs and cattle of the appellant and that the acquittal of the accused persons of tie charge under section 32 4 of the Indian Penal Code on the plea that if the accused persons caused injury to the appellant and his men the same were done in exercise of the right of private defence, completely failing to consider that the accused respondents never took the plea of right of private defence at any stage of the trial and has taken the specific plea that the injuries of the complaint party were self-inflicted ones is illegal and perverse. 3. THE appeal has been contended both by the State as well as by the accused respondents. Mr. Kishore Mukherjee, learned Advocate on behalf of the respondent contended that the case being a police case instituted on the charge' sheet submitted by the police, the complainant has no right of appeal because in view of section 3 78 (4) of the Code of Criminal Procedure the complainant has the right of appeal only in a case instituted on complaint. The learned advocate for the State, Miss Parul Banerjee, has also submitted that the contention of the learned Advocate for the accused respondent is correct that when the State has not preferred any appeal in this police case, the complaint did not have any right of appeal. She, however, concedes that the memo of appeal may be converted into a revision petition. 4. She, however, concedes that the memo of appeal may be converted into a revision petition. 4. SUB section (4) of section 378 of the Code of Criminal Procedure confers on the private complainant right of appeal subject to leave granted by High Court in any case instituted on complaint. So far as the case instituted on a police report is concerned, the complainant has admittedly no such right in view of the clear wording of the Code of Criminal Procedure. The Supreme Court has also observed in Bhi-mappa v. Lakshman (AIR 1970 SC 115 3) that sub-section (4) of section 378 refers to a case in which congnizance is taken on complaint of facts constituting an offence. So this decision of the Supreme Court also clearly indicates that an informant who lodged first information report and on the basis of the police report, the informant who is commonly known as de facto complainant cannot have any right of appeal against the order of acquittal and it is the State along who could prefer an appeal against such an order of acquittal. The learned advocate for the appellant at the time of the hearing concedes that facts. He however, submits that the present memorandum of appeal may be converted into a revision case and the appeal may be treated a revision case and be disposed of. The learned Advocate appearing for the appellant has cited a decision of Orissa High Court reported in AIR 1965 Orissa 114. Our Calcutta High Court has also taken the view in Kasimuddin v. Junus Ali (1983 Cr. L. J. 887 = 87 C. W. N. 3 76)that in the case of the acquittal in a. police case the complainant cannot file an appeal against acquittal, but the memo of appeal submitted may be treated as memo of revision. Mr. Our Calcutta High Court has also taken the view in Kasimuddin v. Junus Ali (1983 Cr. L. J. 887 = 87 C. W. N. 3 76)that in the case of the acquittal in a. police case the complainant cannot file an appeal against acquittal, but the memo of appeal submitted may be treated as memo of revision. Mr. Kishore Mukherjee, learned advocate appearing for the accused respondents has conceded that the High Court has the jurisdiction to convert the memo of appeal into a memo of revision, but he has cited before me two decisions of the Supreme Court and has urged that when the State has not preferred any appeal in a case instituted on police report the revisional jurisdiction conferred under section 401 of the Code of Criminal Procedure ought not to be exercised lightly when it is invoked by a private complainant against the order of acquittal which could have been appealed against by the Government. He has cited a Supreme Court decision in Stephens v. Nasibulla ( AIR 1951 SC 196 ) in support of his submission. He has also referred to me the decision of Pakallalpati v. Bonapalli ( AIR 1975 SC 1854 ) in which the Supreme Court has observed that revisional jurisdiction when invoked by a private compdaihant against an order of acquittal can be exercised only in exceptional case where the interest of public justice requires interference for a correction of manifest illegality or the prevention of a gross miscarriage of justice. It has further been observed that in such a case revisional jurisdiction cannot be invoked only because the lower court has not appreciated the evidence properly. There are also other decisions of the Supreme Court on the same line. In Satyendra Nath Datta v. Ram Narayan ( AIR 1975 SC 580 ) and Akalu Ahir v. Ramdeo Ra, ( AIR 1973 SC 2145 ) the Supreme court has expressed the same view. 5. THUS bearing these principles in mind we shall have to consider as to whether in this case this court will interfere with the order of acquittal passed by the learned magistrate. 6. 5. THUS bearing these principles in mind we shall have to consider as to whether in this case this court will interfere with the order of acquittal passed by the learned magistrate. 6. ON behalf of the accused respondents it is contended that in the memorandum of appeal it has not been indicated that the judgment of the trial court is so perverse that the interest of public justice require that it should be interfered with for the correction of a manifest illegality and prevention of gross miscarriage of justice. It is submitted that in the memorandum of appeal the appellant made a contention that the learned magistrate did not appreciate the evidence properly, but he submits that in view of the clear decisions of the Supreme court the revisional jurisdiction in this case cannot be invoked only because the trial court has not appreciated the evidence and that he has clearly marshalled the facts; and has come to the finding of fact on the basis of the evidence on record and in such circumstances the impugned order of acquital is not liable to be set aside in exercise of the extraordinary power of revision under section 401 of the Code of Criminal Procedure. On behalf of the appellant the learned Advocate has submitted that the learned magistrate has not taken into consideration the charge of theft even though there was sufficient material to bring home the said charge and that has occasioned a great illegality which has resulted in gross miscarriage of justice. He has also drawn my attention to the relevant portion of all the evidence to show that the learned magistrate has failed to consider this case in its proper perspective and has illegally held that the accused party were entitled to right to private defence. 7. I have carefully perused the judgment passed by the learned magistrate. He has also drawn my attention to the relevant portion of all the evidence to show that the learned magistrate has failed to consider this case in its proper perspective and has illegally held that the accused party were entitled to right to private defence. 7. I have carefully perused the judgment passed by the learned magistrate. I have also gone through the evidence, both oral and documentary and find that the learned magistrate on the basis of the admitted facts that the proceeding initiated under section 144 of the Code of Criminal Procedure by the uncle of the complainant as well as by the complainant for the year in dispute were dismissed noted that the complainant party did not have his possession in the land in dispute and therefore there was no occasion for the complainant to go with his men to cultivate the land and in the circumstances the defence case that the complainant party came to dispossess Sk. johad and his brother from the disputed land appears to be probable. I am of the view that this finding of fact cannot be interfered with by this court of revision when such finding of fact is based on evidence. Even if there is some misappreciation of evidence, it is not within the jurisdiction of the court of revision to interfere with such finding of fact. But in my view such finding does not suffer from any misappreciation of evidence. There is also another very important fact to consider in this case. The complainant claims that he is cultivating the land through his bargdar. if that be so, how could the complainant with his men could go to the disputed land to cultivate the land personally go the finding of the learned magistrate in this respect does not appear to be at all perverse. In such view of the matter of the accused respondents rushed to the land to rise their protest and 'in the melee both the complainant party and the accused respondents received some injuries. He charge under section 324 of the Indian Penal Code cannot be held. to have been established beyond all reasonable doubt. . In such view of the matter of the accused respondents rushed to the land to rise their protest and 'in the melee both the complainant party and the accused respondents received some injuries. He charge under section 324 of the Indian Penal Code cannot be held. to have been established beyond all reasonable doubt. . The right of private defence may not be specifically pleaded, if from the evidence on record the court finds that such right is avail able to the defence, the court can hold that the accused party might have assaulted the complainant party in exercise of that right. Moreover, in this case the accused party also received injuries. The accused party also filed a counter case which is also a police case. Therefore the defence story has been rightly held by the learned magistrate to be very probable. 8. I would now come to the contention of the learned Advocate for the appellant that the learned magistrate has not considered the charge under section 3 79 of the Indian Penal Code. It is true that some cattle and ploughs were seized from the kharnar of the accused respondents by virtue of the seizure list by the Investigating Police Officer, but there is no evidence to show that those seized articles and cattle actually belonged to the complainant the complainant did not adduce any clear evidence to prove that those articles and cattle seized actually belonged to him. In the absence of such evidence, the learned magistrate, did not commit any illegality in acquitting the accused respondents of the said charge. He has even ordered the return of the seized articles and the cattle to the accused respondents. That was presumably on taking the view that the complainant party could not prove that those belonged to the complainant party. 9. IN the result I am convinced that it is not a fit case in which the revisional jurisdiction of this court should be invoked. The appeal, which is converted as a revision case, be dismissed. Revision case dismissed.