Bhagwati v. Hari Singh — 1998 DIGILAW 870 (RAJ)

Honble SINGH, J.–This petition under Section 482 of the Criminal Procedure Code is directed against the judgment dated 19th July, 1995 passed by the learned Chief Judicial Magistrate. Jodhpur in Criminal Case No. 90/89, whereby the non-petitioners No.1 and 2 were acquitted of the charge under Sections 342 and 324 of the India Penal Code. The revision petition filed by the petitioner was rejected by the Addl. Sessions Judge by order dated 5th December,1995 on the ground that the revision petition was not maintainable. (2). The facts of the case so far as they are relevant may be summarised as below:- (3). Smt. Bhagwati, the petitioner was married to non-petitioner No.1 Hari Singh. The statement of Smt. Bhagwati was recorded by the S.H.O. of the P.S. Mathania on 16.7.1982. In her statement, Smt. Bhagwati stated that she went to her husbands house four or five days ago. On that day, her sister-in-law Smt. Chanda (non-petitioner No.2) was present. An ornament of Smt. Chanda was stolen. After some discussion between Smt. Chanda and her mother, Chanda went to her hus- bands house. On the same day in evening, the non-petitioner No.1 and 2 tortured the petitioner by inflicting injuries on various parts of her body including the private parts by placing hot``chimta. As a consequence, Smt. Bhagwati got burn injuries on the day of the incident, no report was made to the police. She continued to leave her husbands house. On 14.7.82, she was beaten by her husband Hari Singh (N.P.I.), Dev and his wife. A grievous injury was inflicted on her right arm and as a consequence her right arm was amputed. On receiving the grievous injury on her right arm, Smt. Bhagwati fell on the ground and lost her senses. (4). On the basis of the information given by Smt. Bhagwati on 16.7.82, the first information report No. 47/97 was registered at P.S. Mathania. After investiga- tion, two separate charge sheets were submitted. One charge sheet was submitted in respect of the occurrence, which occured four or five days before lodging of the report on 16.7.82 in which several born injuries were caused to Smt. Bhagwati by the non-petitioner No. 1 and 2. After investiga- tion, two separate charge sheets were submitted. One charge sheet was submitted in respect of the occurrence, which occured four or five days before lodging of the report on 16.7.82 in which several born injuries were caused to Smt. Bhagwati by the non-petitioner No. 1 and 2. The other chargesheet was submitted in respect of the incident which occured on 14th July, 1982 in which Smt. Bhagwati received grievous injury on her right arm on account of the blow inflicted on her right arm by her husband Hari Singh. (5). On the basis of the first charge sheet, the learned Chief Judicial Magistrate took cognizance of the offence under Section 342 and 324 r/w 34 of the IPC. On the basis of the second charge sheet, a separate case was registered in respect of the offences including the offences under Section 326 of the IPC. In this petition we are not concerned with the second case registered on the basis of the second charge sheet. (6). In criminal case No.90/89 State V Hari Singh & anr. both accused Hari Singh and Smt. Chanda were charge sheeted under Section 324 and 342 IPC. They pleaded not guilty to the charge. The trial was conducted and both the accused persons were acquitted of the charges under Sections 324 and 342 of the India Penal Code by the judgment dated 19th July,95. (7). The State has not filed any appeal or revision against acquittal, against the judgment dated 19th July, 95 whereby the accused-non petitioners were acquitted. (8). Smt. Bhagwati, who is the victim of the alleged offence, feeling aggrieved by the judgment dated 19th July, 95, whereby the non- petitioners No.1 and 2 acquitted by the learned Chief Judicial Magistrate, filed a revision petition in the Court of the Addl. Sessions Judge, Jodhpur. The revision petition was made over to the Addl. Sessions Judge cum Special Judge (SC/ST Cases) for disposal. After hearing the parties, the learned Addl. Sessions Judge rejected the revision petition on the ground that the order of acquittal could not be challenged by the revision petitioner under Section 397 of the Criminal Procedure Code, in view of the provisions contained in Section 378 of the Cr.P.C. The petitioner could not find any relief by filing the revision petition before the Court of Addl. Sessions Judge, Jodhpur. Sessions Judge, Jodhpur. Hence, she has moved this Court by filing a petition under Section 482 of the Criminal Procedure Code against the judgment of acquittal passed by the learned Chief Judicial Magistrate and the order passed by the learned Addl. Sessions Judge, Jodhpur. (9). Shri P.N. Mohnani, has appeared on behalf of the accused persons who are non-petitioners No.1 and 2. The Public Prosecutor has appeared on behalf of the State. (10). Arguments were heard. (11). In this petition, three important questions arise for consideration. They are: 1) Whether the petition under Section 482 of the Criminal Procedure Code is maintainable against the judgment of acquittal passed by the subordinate Court. 2) It it is held that a petition under Section 482 Cr.P.C. is maintainable against the judgment of acquittal, whether it is a fit case in which the inherent powers of the Court should be exercised for the purpose of quashing and setting aside the judgment dated 19th July, 95 whereby the accused-non-petitioner No.1 and 2 were acquitted. 3) In case the judgment of acquittal dated 19th July, 95 is quashed and set aside of the order would be most appropriate in view of the fact that the order of acquittal cannot be converted into an order of conviction by this Court while exer- cising inherent power under Section 482 of the Criminal Procedure Code. (12). Shri P.N. Mohnani learned counsel appeared on behalf of the non- petitioner No.1 and 2 raised a preliminary objection that by virtue of provisions contained in sub-Section 3 of the Section 397 of the Cr.P.C., the petition is not maintainable as it is infact a second revision petition in the Court in the guise of a petition under Section 482 of the Criminal Procedure Code and the second revision petition is not maintainable. (13). After carefully considering this preliminary objection, I find no force in it. The learned Addl. Sessions Judge who disposed of the revision petition held that the revision petition was not maintainable against the judgment of acquittal. The learned Addl. Sessions Judge thus held that he had no jurisdiction to entertain the revision petition under Section 397 Cr.P.C., there was no adjudication of any question of fact or law on merits. The learned Addl. Sessions Judge who disposed of the revision petition held that the revision petition was not maintainable against the judgment of acquittal. The learned Addl. Sessions Judge thus held that he had no jurisdiction to entertain the revision petition under Section 397 Cr.P.C., there was no adjudication of any question of fact or law on merits. When a Court passes an order holding that it has no jurisdiction to entertain the petition, the petition under Section 397 Cr.P.C. it cannot be said that the order of disposal of the petition has been passed on merits and it bars a second revision petition under sub-sec. (3) of the Section 397 Cr.P.C. (14). Besides, in the instant case, there is nothing to show that the present revision petition is a second revision petition under Sub-Section (3) of the Section 397 Cr.P.C. Infact, once the learned Addl. Sessions Judge, Jodhpur held that the revision petition under Section 397 was not maintainable against the judgment of acquittal, the petitioner had no alternative except to invoke the inherent jurisdiction of this court by moving the petition under Section 482 of the Criminal Procedure Code. I, therefore, hold that this petition under Section 482 Cr.P.C. is maintainable and the preliminary objection raised by Shri Mohnani has no merit. (15). Having decided the preliminary objection raised on behalf of the non-petitioner Nos. 1 and 2, I proceed to decide the questions mentioned above in the following order. (16). The first question arising for the decision is whether the petition under Section 482 Cr.P.C. is maintainable against the judgment of acquittal passed by the subordinate Court.. In case of K. Chandraswamy Reddy vs. State of Andhra Pradesh and Anr. ( AIR 1962 SC 1788 ), the Honble Supreme Court considered the question whether the order of acquittal passed by the subordinate Court could be quashed and set aside, otherwise than by filing an appeal against acquittal. In case of K. Chandraswamy Reddy, the appellant was convicted under Section 457 and 380 IPC. During trial, the prosecution produced its evidence. The trial was conducted by the learned Asstt. Sessions Judge. An appeal was preferred before the Sessions Judge. The learned Sessions Judge gave benefit of doubt to the appellant and passed the order of acquittal. The revision petition was filed by one Rammaya against the order of acquittal. During trial, the prosecution produced its evidence. The trial was conducted by the learned Asstt. Sessions Judge. An appeal was preferred before the Sessions Judge. The learned Sessions Judge gave benefit of doubt to the appellant and passed the order of acquittal. The revision petition was filed by one Rammaya against the order of acquittal. The High Court allowed the revision petition and remanded the matter to the Sessions Judge for re-trial. The order of the High Court directing re-trial was challenged before the Honble Supreme Court in special appeal. the special appeal was, however filed by one of the two accused persons. The main contention of the appellant before the Honble Supreme Court was that the revision petition had been filed by the private party and, there were no exceptional circumstances which would justify the High Court in interfering with an order of acquittal at the instance of private party. The Honble Supreme Court after taking into consideration the arguments advanced by the parties and considering the ratio of case in Lokendra Jha vs. Polailal Biswas ( 1951 SCR 676 ), up held the High Courts power to quash and set aside the order of acquittal in a revision filed under Section 439 of the Cr.P.C. (1898), Their Lordships observed:- ``It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of 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 there has been a flagrant miscarriage of justice. Sub-Section (4) of S. 439 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 cover the finding of acquittal into one of conviction by the indirect method of ordering retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only inexceptional cases that this power should be exercised. This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only inexceptional cases that this power should be exercised. It is not possible to lay down the criteria for determinating such exceptional cases which would cover all contingencies. Some cases of this kind however may be indicated which would 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 where the appeal Court has wrongly held evidence which was ad- mitted by the trial Court to be inadmissible. (17). In a recent decision given in Kishan Swaroop vs. Govt. of NCT of Delhi (3), the order of acquittal was challenged by the revision petitioner before the Delhi High Court. At the time of hearing the arguments, the High Court posed the question whether the appellant (private party) could file a revision petition without the con- sent of the Public Prosecutor. The High Court after hearing the arguments and relying upon the judgment of K. Chinnaswamy Reddy V State of Andhra Pradesh (supra), answered the same in the affirmative and dismissed the revision petition without prejudice to the appellants right to approach the High Court afresh after obtaining the requisite permission. The order passed by the Delhi High Court was challenged before the Honble Supreme Court. Their Lordships of the Honble Supreme Court reiterated the view taken by the Honble Supreme Court in Chandraswamys case (supra) and allowed the appeal and quashed the impugned order of the Delhi High Court. (18). In view of these authoritative pronouncement of Honble Supreme Court, there is no doubt about the legal position that an order of acquittal can be challenged even by a private party by filing a revision under Section 397 of the Criminal Procedure Code but the power vested in the High Court are to be exercised in special cases where flagrant has been caused and it is necessary in the interest of justice to direct the retrial and setting aside the order of acquittal. (19). (19). Learned counsel Shri Mohnani appeared for the non-petitioners No.1 and 2 has contended that even if it is held that the order can be challenged in the revision petition, such order cannot be challenged by filing a petition under Section 482 of the Criminal Procedure Code. I have carefully considered the contentions raised on behalf of the non-petitioners No. 1 and 2. In Krishnan and anr. Vs. Krishna Veni (4), the Honble Supreme Court considered the provisions of Sections 397, 401, 482 and 483 of the Criminal Procedure Code, 1973. Regarding the provisions contained in Section 397 read with Section 401 of the Criminal Procedure Code, their Lordships pointed out that the exercise of revisional power under Section 397 read with Section 401 is to call for the records of any inferior Criminal Court and to examine the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court and to pass appropriate orders. It was further observed that in the exercise of power of revision any High Court may call for the records as also suo motu exercise the power under Sections 397 and 401 to exercise on the grounds mentioned therein i.e. to examine the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior Court and to dispose of the revision in the manner indicated under S. 401 of the Code. The revisional power of the High Court merely conserves the power of the High Court to see that justice is done in accordance with the recognised Rules of Criminal Jurisprudence and that its subordinate Courts do not exceed the jurisdiction or abuse the power vested in them under the Code, or to prevent abuse of the process of the inferior Criminal Courts or to prevent miscarriage of justice. Their Lordships of the Honble Supreme Court considered the provisions of Section 483 of the Criminal Procedure Code and observed that the object of the Section 483 and purpose behind conferring the revisional power under S. 397 read with S. 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to meet out justice. In addition, the inherent power of the High Court is preserved by S. 482. The power of the High Court, therefore, is very wide. However, High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior Criminal Court in its judicial process or illegality of sentence or order. (21). It was further observed by their Lordships that the inherent power of the High Court is not one conferred by the Code but one which the High Court already has in it and which is preserved by the Code. The object of S. 397(3) is to put a bar on simultaneous revisional applications to the High Court and the Court of Sessions so as to prevent unnecessary delay and multiplicity of proceedings. As seen, under Sub-Section (3) of S. 397, revisional jurisdiction can be invoked by ``any person but the Code has not defined the word `person. (22). In view of the observations made by the Honble Supreme Court in the cases mentioned above, it must be said that the High Court can interfere with the order of acquittal passed by the subordinate Court, in view of the provisions contained in Sections 401, 482 and 483 of the Criminal Procedure Code in appro- priate cases. The question No.1 decided accordingly. (23). The second question is to be decided whether it is a fit case in which the order of acquittal passed by the learned Judicial Magistrate on 19th July,1995 should be quashed and set aside. (24). The learned counsel for the petitioner has submitted that in this case, the order of acquittal has been passed by the learned Chief Judicial Magistrate on the ground that there was no sufficent evidence to convict the non-petitioner No.1 and 2 on the charges under Section 342 and 324 of the Indian Penal Code. (24). The learned counsel for the petitioner has submitted that in this case, the order of acquittal has been passed by the learned Chief Judicial Magistrate on the ground that there was no sufficent evidence to convict the non-petitioner No.1 and 2 on the charges under Section 342 and 324 of the Indian Penal Code. It is contended that, in fact the petitioner was one of the most important witness of the case and the Doctor who has examined the injuries of the petitioner and prepared the medico legal report were not examined by the trial Court, though the petitioner presented herself before the trial court on several occasions. It is further submitted by the learned counsel for the petitioner that since the petitioner had appeared on several occasions before the trial Court for the purpose of giving her statement in support of allegations made in the first information report and there is nothing to show that the petitioner was un-willing or was not interested in producing herself for examination during trial. It is also submitted by the learned counsel for the petitioner that in the instant case, the learned Judicial Magistrate closed the prosecution evidence on 10th May, 95 as no prosecution witness was present on that date but the learned Chief Judicial Magistrate failed to consider whether it was necessary for him to examine the petitioner and the Doctor for the just decision of the case, in view of the provisions contained in Section 311 of the Criminal Procedure Code. It is contended by the learned counsel for the petitioner that even if the respondent No. 3, who was the Prosecutor in this case failed to produce the witnesses on 10th May,95 for examination, it was necessary for the learned Chief Judicial Magistrate to apply his judicial mind to the facts and circumstances of the case and to consider whether it was necessary for him to call any witness for the just decision of the case and since it has not been done, it is case of non-application of judicial mind by the learned Chief Judicial Magistrate under Section 311 Cr.P.C. (25). It is also submitted by the learned counsel for the petitioner that in the judgment dated 19th July, 95, the learned Chief Judicial Magistrate has observed that the petitioner could not be examined as she had expired and this wrong impression on the part of the learned Chief Judicial Magistrate was responsible for the unfortunate omission to issue summons to the petitioner and examine her un- der Section 311 Cr.P.C. On the above grounds, the learned counsel for the petitioner has submitted that there has been miscarriage of justice on account of failure of consideration to examine the petitioner and the Doctor who had examined the injuries of the petitioner and the learned Chief Judicial Magistrate also failed to examine the petitioner under Section 311 Cr.P.C. because he was under the wrong impression that the petitioner had expired. It is, therefore, prayed by the learned counsel for the petitioner that the order of acquittal in the instant case deserves to be quashed and set aside in view of the above mentioned facts and circumstances of the case. (26). Learned counsel appearing for the non-petitioner No.1 and 2 has submit- ted that in this case there is no necessity of interfering with the order of acquittal as the case is an old one and after expiry of about 15 years, it would be unjust to direct retrial of non-petitioners No.1 and 2 on the charges under Section 342 and 324 IPC. It is further submitted that the non-petitioner No.1 has already been convicted under Section 326 IPC in second case on charge of inflicting serious grie- vous injuries to the petitioner with a sharp weapon. (27). In short, the argument advanced by Shri Mohnani appearing for the non-petitioner no.1 and 2 is that since the non-petitioner has already convicted and sentenced under Section 326 IPC, substantial justice has been administered and it is not necessary to interfere with the order of acquittal in this petition. (28). Some other facts also deserve notice. One of those facts in that no first information report was lodged after the alleged incident in which the petitioner was subjected to tortur by inflicting burn injuries on several parts of the body. No complaint was filed soon after the alleged incident and infact the petitioner narrated about the first incident which had occured five days before, whom she gave her statement on 16th July, 1982. No complaint was filed soon after the alleged incident and infact the petitioner narrated about the first incident which had occured five days before, whom she gave her statement on 16th July, 1982. This fact has been considered by me. Undoubtedly, there is a delay in making the report about the incident. On perusal of the medico legal report prepared by the Doctor, it is evident that at the time of medical examination, the Doctor found a large number of injuries on several parts of the body of the petitioner. Prima facie, it cannot be said that the delay in reporting the incident to police in any manner makes allegations doubtful. (29). The other circumstance to be taken into account is that the petitioner in this case is a helpless woman who was allegedly subjected cruel treatment by her husband, her sister in law Smt. Chanda and two other persons namely Deo Ji and his wife. The petitioner has lost a portion of the right arm on account of injuries in- flicted on her. She had been appearing in the trial Court on several occasions for recording of her statement and her statement was not recorded for one reason or the other. All these facts taken in together, indicate that the learned Chief Judicial Magistrate have committed a grave error by not calling the petitioner and the Doctor who had examined her injuries, under Section 311 of the Criminal Procedure Code because the learned Chief Judicial Magistrate was under the wrong impression that the petitioner had already expired. Keeping in view all the principles laid down by the Honble Supreme Court in several other cases, I feel called upon to exercise the power under Sections 482, 483 and 401 of the Criminal Procedure Code to quash and set aside the judgment dated 19th July, 1995 passed by the learned Chief Judicial Magistrate, whereby he acquitted the non- petitioner No.1 and 2 of the charge under Section 342 and 324 of the Indian Penal Code. The question number three is decided accordingly. (30). The last question is to be considered in this case is what order would be appropriate in view of the fact that this Court cannot convert any order of acquittal into an order of conviction. In the case of K. Chinnaswami Reddi (supra), the Honble Supreme Court considered this question. The question number three is decided accordingly. (30). The last question is to be considered in this case is what order would be appropriate in view of the fact that this Court cannot convert any order of acquittal into an order of conviction. In the case of K. Chinnaswami Reddi (supra), the Honble Supreme Court considered this question. Their Lordships observed as under :- `` The next question is what order should be passed in a case like the present. The High Court also considered the aspect of the matter. Two contingencies arise in such a Case. In the first place there may be an acquittal by the trial Court. In such a case if the High Court is justified, on principles we have enunciated above, to interfere with the order of acquittal in revision. The only course open to it is to set aside the acquittal and send the case back to the trial Court for retrial. In view of the above observations of the Honble Supreme Court, the proper course is to be quash and set aside the order of acquittal dated 19th July, 1995 and remand the case to the learned Chief Judicial Magistrate for retrial on charges under Sections 342 and 324 of the Indian Penal Code. For the reasons mentioned above, the petition is allowed and the order of acquittal dated 19th July, 1995 passed by the learned Chief Judicial Magistrate, acquitting the non-petitioner No.1 and 2 for the charges under Section 342 and 324 of the Indian Penal Code is hereby quashed and the case is remanded back to the learned trial Court with a direction that the non-petitioner No.1 and 2 should be tried of the charge under Section 342 and 324 of the Indian Penal Code in accordance with law. The petition is disposed of accordingly.