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2001 DIGILAW 250 (PAT)

Kailash Yadav @ Kailu Yadav v. State Of Bihar

2001-03-20

ANIL KUMAR SINHA

body2001
Judgment ANIL KUMAR SINHA, J. 1. This revision application has been directed against the judgment and order dated 17-11.1998, passed by the 6th Additional Sessions Judge, Purnea in Crl. appeal No. 25 of 1998 whereby and whereunder he acquitted the Opposite Parties No. 2 to 11 of the charges and set aside the judgment and order passed by the trial Court who convicted the Opposite Parties No. 2 to 11 under different counts and sentenced them to undergo imprisonments. 2. It appears from the judgment of the appellate Court that it has taken pains to consider all the evidence facts and circumstances available on record and after making a thread bare discussion of the evidence of PWs 1, 2 and 3 who are the witnesses to prove the alleged occurrence was of the view that their evidence lacked corroboration by any independent witness although about 20 villagers had assembled at the place of occurrence but none came forward to corroborate the evidence of PWs 1,2 and 3 who are the informant and his brothers and as such highly interested witnesses and accordingly held that their testimony cannot be relied upon specially in view of the fact that a series of litigation is going on between the informant and the accused persons since last twenty years and there is also a counter version to the prosecution story for which a case was pending. That apart, the learned appellate Court was of the view that I.O. was not examined and his non-examination caused serious prejudice in the defence of the accused persons because many contradictions which were elicited in the cross-examination of PWs 1, 2 and 3 could not be verified and that the place of occurrence also could not be established beyond reasonable doubts due to the non-examination of the I.O. The appellate Court has also pointed out certain contradictory statements made by the witnesses. Therefore, the learned appellate Court was of the view that the prosecution had not proved the charges against the accused persons beyond all reasonable doubts and accordingly set aside the judgment of the trial Court and discharged the appellants/accused persons. Learned counsel appearing for the petitioner however, reiterated that PWs 1, 2 and 3 had proved the charges against the Opposite Parties Nos. 2 to 11 beyond doubts and the appellate Court was not justified in acquitting them of the charges. 3. Learned counsel appearing for the petitioner however, reiterated that PWs 1, 2 and 3 had proved the charges against the Opposite Parties Nos. 2 to 11 beyond doubts and the appellate Court was not justified in acquitting them of the charges. 3. Learned counsel appearing for the respondents No. 1 to 11 however submitted that the petitioner who is the private person has no locus standi to file the present revision which emanated from the order passed by the appellate Court and even the permission of the public prosecutor was not obtained. As such, it was submitted that this revision should be dismissed in limine. 4. The law is well settled in the case of K. Chinnaswamy Reddy V/s. The State of Andhra Pradesh and another, AIR 1962 SC 1788 , wherein the Apex Court held as follows : "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 in our opinion be exercised by the High Court only in exceptional cases, where there is some glaring defect in the procedure or there is manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub-section (4) of Section 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 convert 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 limitation of the power of the High Court to set aside a finding of acquittal in revision and it is only exceptional cases that this power should be exercised. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may however indicate some cases of this kind, which would in our opinion 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 admitted by the trial Court to be inadmissible, or where the material evidence has been overlooked either by the trial Court or by the appeal Court or where the acquittal is based on a compounding of the offence, which was invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature. Where the High Court can justifiable interfere with an order of acquittal, and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of Section 439 (4)." In another decision in the case of Kishan Swaroop V/s. Government of NCT of Delhi, AIR (sic) SC 991, the Apex Court held as follows : "From the impugned judgment we find that the High Court has referred to the provisions of Sections 378 and 210 of the Code of Criminal Procedure to conclude that it was the primary responsibility of the State to file appeal/revision and therefore, no criminal revision in respect of an order which is appealable at the instance of the state could/should be entertained without the requisite permission of the public prosecutor. In drawing the above inference the High Court failed to notice that if the Code of Criminal Procedure did not empower a private party to file a revision petition against and order of acquittal passed in a case instituted on police report a formal permission of the public prosecutor would not entitle him to do so. In drawing the above inference the High Court failed to notice that if the Code of Criminal Procedure did not empower a private party to file a revision petition against and order of acquittal passed in a case instituted on police report a formal permission of the public prosecutor would not entitle him to do so. To put it differently, a public prosecutor cannot vest a private party with a right which it has not got under the Code." In revision powers of the High Court vis-a-vis the right of a private party to move in revision against an order of acquittal passed in a case instituted upon a police report, the Court observed in Chinnaswamy Reddys case as under : "It is true that it is open to a High Court in revision to set jurisdiction should in our opinion 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." 5. In view of law propounded by the Apex Court as referred above it would be found that the criteria determined by the Apex Court are absolutely lacking in the present case, in as much as there is no case of the petitioner that the trial Court had no jurisdiction or it had shut evidence which the prosecution wished to produce or appellate Court had wrongly held evidence which was admitted by the trial Court as inadmissible or where the material evidence has been overlooked by the appellate Court or the acquittal is based on the compounding of the offence which is invalid under the law. In such view of the matter the petitioners case does not fall under any criteria of exceptional nature and that being so the revision preferred by the petitioner in the capacity of private party does not appear in the capacity of private party does not appear to be maintainable in view of the ratio laid down by the Apex Court. 6. In view of the facts and circumstances discussed above and the law laid down by the Apex Court, I am of the view that there is no merit in the present revision application which does not appear to be maintainable. Accordingly this revision application is dismissed.