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2001 DIGILAW 395 (PAT)

Baidyanath Prasad Singh v. State Of Bihar

2001-04-30

INDU PRABHA SINGH

body2001
Judgment INDU PRABHA SINGH, J. 1. This application under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (in short, the Code) is directed against the judgment of acquittal passed on 27.9.1997 by Shri Shiva Shankar Sharma, 9th Additional Sessions Judge, Patna in S.T. No. 482 of 1996. By this judgment and order, the learned trial Court acquitted opposite-party Nos. 2 to 6 of the charges under Sections 304- B and 498-A of the Indian Penal Code and also under Sections 3/4 of the Dowry Prohibition Act, for causing the death of one Anamika Kumari @ Renu on account of non-fulfilment of demand of dowry. 2. The prosecution case, in short, is that the present petitioner, as informant, had submitted his written report to police on 7.4.1995 alleging therein that the deceased Anamika Kumari, the daughter of the petitioner was married to opposite-party No. 3, Shivendu Shekhar Singh on 27.1.1993. Opposite Party No. 2, Surendra Mohan Singh, the father of opposite-party No. 3 had given a list of various articles to the petitioner before the solemnisation of the marriage whose estimated value was about Rs. 1,00,000/-. Since the financial condition of the petitioner was not sound he could not satisfy the demand of opposite-party Nos. 2 and 3. Even after the marriage the demand for those articles was repeated by opposite-party No. 2. When the informant failed to fulfil the demands of the opposite-party they started torturing the deceased-Anamika Kumari both mentally adn physically. The petitioner was not allowed to meet the deceased. When on 5.4.1995 he came to take the deceased with him on the occasion of the marriage of his second daughter opposite-party refused to allow the deceased to accompany him. When Anamika Kumari intervened and protested to the opposite-party she was physically assaulted by them in presence of the petitioner. 3. On 7.4.1995 at about 7 a.m. the petitioner got a telephonic massage informing him about the death of his daughter, Anamika Kumari. On this he rushed to Patna along with his wife and met opposite-party Nos. 5 and 6 at their residence. They told them that Anamika Kumari has been admitted in Patna Medical College and Hospital. On rushing to Patna Medical College and HOspital they could learnt that she was no more. They, however, noticed that blood was oozing out from the dead body of the deceased and her bangles were, broken. 5 and 6 at their residence. They told them that Anamika Kumari has been admitted in Patna Medical College and Hospital. On rushing to Patna Medical College and HOspital they could learnt that she was no more. They, however, noticed that blood was oozing out from the dead body of the deceased and her bangles were, broken. On this the petitioner came to the police station and lodged the written report on the basis of which Sri Krishnapuri P.S. Case No. 46/95 was lodged. Post-mortem examination on the dead body was held by the doctor and after completing the investigation charge-sheet was submitted by the police against the members of the opposite-party under Sections 304-B and 498-A of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act. The case was committed to the Court of Sessions and the trial Court framed the charges under the sections mentioned above. In the course of the investigation the statement of PWs Ram Baran Kante (PW 1), Ugan Sahni (PW 2) and Bishwajit Kumar Singh were recorded under Section 164 of the Code, in which they had categorically stated about the alleged occurrence. But during the trial Ram Baran Kanti (PW 1) and Ugan Sahni (PW 2) did not support the case of the prosecution while Bishwajit Kumar Singh was not examined in the Court. 4. PWs 4, 8 and 9 have fully supported the case of the prosecution. PW 7 is a Judicial Magistrate who recorded the statements of the witnesses under Section 164 of the Code. There was sufficient evidence on record to prove the charges against the members of the opposite-party. The learned Court below, however, did not rely on the evidence of PWs 4, 8 and 9, and acquitted the members of the opposite-party. 5. It is not in dispute that the alleged occurrence had taken place within 7 years of the marriage of the deceased. It is well settled by series of decisions of the Honble Supreme Court and this Court that in a case under Section 304-B of the Indian Penal Code, the trial Court should consider the genesis of the occurrence. The same is the case with respect to the other sections mentioned above. The learned Court below, however, acquitted the members of the opposite- party without any satisfactory reasons. Its findings are against law and are, therefore, liable to be set aside. The same is the case with respect to the other sections mentioned above. The learned Court below, however, acquitted the members of the opposite- party without any satisfactory reasons. Its findings are against law and are, therefore, liable to be set aside. On these grounds it has been contended that the impugned judgment and order be set aside and the members of the opposite-party Nos. 2 to 6 be punished in accordance with law. 6. The above allegations have been denied by opposite-party Nos. 2 to 6. They have contended that there was no ill-treatment of the deceased, Anamika Kumari. She was received well by the family of opposite-party Nos. 2 to 6 and was treated well. In short they have completely denied the allegations made against them. 7. The parties have been-heard in detail on the various questions of law and facts raised by them. Before, however, I proceed to discuss the contentions of the parties I would like to summarise the law on this subject. In this case charges under Sections 304- B and 498-A of the Indian Penal Code were framed against opposite-party Nos. 2 to 6. They were further charge the offences under Sections 3/4 of the Dowry Prohibition Act. They have pleaded not guilty to those charges and have claimed to be tried. I will firstly briefly refer to the sections mentioned above. Section 304-B was inserted in the Indian Penal Code by Amending Act 43 of 1986 and it was brought into effect on 19.11.1986. This shows that it was a freshly added section to Indian Penal Code. It provides that where the death of a woman is caused by bodily injury or occurs otherwise then under normal circumstances within 7 years of her marriage and if it was shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demand for dowry such death shall be called dowry death and such husband or relative shall be deemed to have caused her death. This section shows that if the death of a woman takes place within 7 years of her marriage on account of bodily injury; and not under normal circumstances; and if it is shows that before her death she was subjected to cruelty or harassment by her husband or any relative of her husband, the legal presumption will arise that such husband or his relative had caused her death. In this section, the word "shall" has been used and it has been provided that it shall be deemed that her death was caused by her husband or his relative under the circumstances mentioned above. So briefly speaking in a case like this there will be strong legal presumption of causing the dowry death against the husband or his relative. In this connection a reference may also be made to Section 113-B of the Indian Evidence Act. It provides that when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with any demand for dowry the Court shall presume that such person has caused the dowry death. Thus, according to this section also there would be strong presumption of causing the dowry death under the circumstances mentioned in it and here also the word "shall" has been used in the section. It is important to mention here that this section was also added to the Indian Evidence Act in the year 1986. 8. I will next refer to Section 498-A of the Indian Penal Code. This relates to cruelty by husband or relatives of husband perpetrated towards a woman. It provides that if the husband or relative of the husband of a woman subjects such woman to cruelty, he shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. At this stage, I shall not referred to Sections 3/4 of the Dowry Prohibition Act. 9. At the outset I would like to mention that in the FIR itself there was allegation that blood was oozing out of the dead body of the deceased, Anamika Kumari and that her bangles wee broken. At this stage, I shall not referred to Sections 3/4 of the Dowry Prohibition Act. 9. At the outset I would like to mention that in the FIR itself there was allegation that blood was oozing out of the dead body of the deceased, Anamika Kumari and that her bangles wee broken. The post-mortem examination on the dead body was held but unfortunately the learned Court below did not allow time to the prosecution to prove the post-mortem examination report or to examine the doctor who held it. On the aspect of shutting out the evidence of the prosecution witnesses in this case, I will refer to in detail subsequently. However, the very fact that blood was found oozing out of the dead body and bangles were broken clearly indicates/possibility that violence was used against Anamika Kumari and harassment was caused to her. I have already noticed about the provision of Section 304-B which gives strong presumption of the complicity of the husband or his relatives in causing the dowry death of the deceased. In this connection a reference may also be made to the definition of the word "shall presume" as given in Section 4 of the Indian Evidence Act, according to which whenever it is directed by this Act that the Court shall presume a fact it shall regard such fact as proved unless and until it is disproved. I am referring to the aforesaid provisions of law since they appear to have been ignored by the learned trial Court while coming to a decision in this case. 10. Before proceeding any further, I would like to refer to the concluding portion of the paragraph 15 of the judgment of the learned trial Court which runs as follows : "May be that these accused persons inflicted both mental and physical torture to Anamika for the sake of dowry within 7 years of her marriage and also took away her precious life but the Court can act only on the basis of the evidence of must. From the aforesaid observation of the learned Court below it becomes clear that the learned Additional Sessions Judge was also conscious of the fact that the accused persons (opposite-party Nos. 2 to 6} might have inflicted mental and physical torture to Anamika for the sake of dowry within 7 years of her marriage and also took away her precious life. From the aforesaid observation of the learned Court below it becomes clear that the learned Additional Sessions Judge was also conscious of the fact that the accused persons (opposite-party Nos. 2 to 6} might have inflicted mental and physical torture to Anamika for the sake of dowry within 7 years of her marriage and also took away her precious life. As noticed above both in Section 304-B of the Indian Penal Code as also in Section 113-B of the Indian Evidence Act, the Court shall have to presume the causing of the dowry death by the husband or his relative under the circumstances mentioned therein. This gives rise to strong presumption against the husband or his relatives of having caused dowry death of the deceased since I have already noticed the meaning of 4he word "shall presume" as mentioned in Section 4 of the Evidence Act. It is under the aforesaid circumstances that the case against opposite-party Nos. 2 to 6 has to be examined. 11. In paragraph 13 of the judgment of the learned Court below it has been mentioned that neither the informant nor his wife nor the Investigating Officer or the Doctor could be examined in this case. It has further been mentioned that several other prosecution witnesses have also not been examined. Even the post-mortem examination report or the viscera report has not been brought on the record. In this connection a reference has been made to the order dated 7.4.1997 passed in Cr. Misc. No. 5281/97 by this Court directing the trial Court to conclude the trial on priority basis without giving further adjournment on any petition filed by the informant and under the aforesaid circumstances the prosecution case was closed by the trial Court by its order dated 12.5.1997. Even a petition under Section 311 of the Code filed by the informant for examining the remaining prosecution witnesses was rejected by he trial Court by order dated 1.9.1997. It appears that under the aforesaid circumstances the necessary prosecution evidence could not be adduced before the trial Court resulting in failure of justice and the case ended in acquittal. 12. It has been mentioned in this paragraph that the informant had filed a petition under Section 311 of the Code for the examination of the necessary witnesses as Court witness. Section 311 of the Code runs as follows : "311. 12. It has been mentioned in this paragraph that the informant had filed a petition under Section 311 of the Code for the examination of the necessary witnesses as Court witness. Section 311 of the Code runs as follows : "311. Power to summon material witness or examine person present.Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case." (Emphasis supplied) The learned Court below has further mentioned that those witnesses could not be examined by the Court due to complete negligence on the part of the informant and the prosecution. Even if this view of the learned Court below may be correct, the prime object of the courts in India is to dispense justice. The paramount duty of the Court is to do justice between the parties. If the Court finds that the cause of justice is going to be defeated by the negligent act of the party to the litigation it should not feel that it is so power-less in the matter as not to serve cause of justice by taking remedial measures since the cause of justice has to be achieved by the Court (sic). It is precisely for this reason that the provisions of Section 311 of the Code has been made and the Court has been empowered to examine such witness whose evidence appears to be essential to the just decision of the case. Section 311 of the Code gives sufficient power to the Court to examine such witness if his examination is essential for the just decision of the case. In this connection a reference may be made to the order sheet of the learned Court below dated 1.9.1997 in which it has been observed as follows : "Even the prayer to call for the viscera report was not made while the prosecution case was open and in currency. It is a fact that examination of these witnesses were quite expedient for just decision of the case but thatch totally lay on the part of the informant." 13. It is a fact that examination of these witnesses were quite expedient for just decision of the case but thatch totally lay on the part of the informant." 13. From this observation made in this order sheet it would appear that probably the learned trial Court was labouring under a misconception of law that it is for the informant, to produce witnesses. It further appears that even the learned trial Court was of the view that the examination of the witnesses whom the prosecution wanted to examine was quite expedient for the just decision of the case. Under this circumstances it is not clear what prevented the learned Court below to exercise his powers under Section 311 of the Code and to examine those persons as Court witnesses. As mentioned above the prime object of any Court of law is to dispense with justice to the litigants in accordance with law. If the law authorised the Court to examine any person as a Court, witness and if the Court was convinced that examination of such witness was quite expedient for the just decision of the case, it was for the Court to exercise his powers under Section 311 of the Code and to examine those witnesses. It cannot take the plea that since non-examination of this witness was totally due to latch on the part of the informant, he will not allow the petition filed under Section 311 of the Code. This shows that probably the learned Court below was not conscious of his obligation to do even handed justice between the litigants and to exercise his powers as given to him under Section 311 of the Code. 14. In this connection my attention has been drawn to the order-sheet dated 10.4.1997 of this case. In this order-sheet the learned trial Court has himself observed as follows ; "I am of the view that official witnesses would be summoned only after the examination of the factual witnesses. The informant and his better half are yet to be examined." Under this circumstances the Court refused to issue process against the official witnesses but has not missed to take advantage of the situation by observing in order sheet dated 1.9.1997 that even the prayer to call for the viscera report has not been made while the prosecution case was open. Thus, it appears that the learned Court below has put the Public Prosecutor also in a fix while his earlier prayer for summoning the official witness was rejected by the Court by order dated 10.4.1997, he was accused of not making any prayer for calling for a viscera report in the order dated 1.9.1997. 15. From the order sheet dated 10.3.1997 of the learned trial Court it would appear that the Court had ordered for the issue of bailable warrants of arrest to the factual witnesses. The learned counsel appearing on behalf of the petitioner has submitted that once the Court has issued warrant of arrest for the appearance of any witness it was obligatory on its part to secure their presence by exercising his powers under the Code. In this connection a reference may be made to Section 230 of the Code. It provides the procedure for holding the session trial.l It further provides that on the date fixed in the trial, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution. The aforesaid provision is identical with the provision in Section 242(3) of the Code, whose sub-section (2) also provides that the Magistrate may on the application of the prosecution issue a summons to any of his witness directing him to attend or to produce any document or any thing. It has been held in a Full Bench decision of Madras High Court in the case of the State V/s. Veerappan and others, AIR 1980 Mad 260 (FB), that it is the duty of the Court to issue summons to the prosecution witnesses and to secure the presence of witnesses by exercising all the powers conferred under this Code. A similar view has been taken in the case of State of Orissa V/s. Sib Charan Singh, AIR 1962 Ori 157 . The word "produced" used in, this section as also in sub-section (3) of Section 242 should be given a restricted meaning. The Court also has a duty o enforce attendance of the witnesses by issuing process and this view has also been taken by this Court in the case of the State of Bihar V/s. Polo Mistry and others, AIR 1964 Pat 351 . The Court also has a duty o enforce attendance of the witnesses by issuing process and this view has also been taken by this Court in the case of the State of Bihar V/s. Polo Mistry and others, AIR 1964 Pat 351 . In the present case as has already been noticed the Court had ordered for the issue of bailable warrants of arrest on 10.3.1997 as will appear from the order sheet of this date. The order sheet dated 17.3.1997 shows that the compliance report of the warrants of arrest was being awaited. On behalf of the petitioner it has been seriously contended that once Court had issued warrant of arrest against the witnesses it is its bounden duty to secure the presence of such a witness and it cannot throw the responsibility of the production of such a witness on the prosecution or the informant. Under this circumstance technically the learned trial Court was responsible for the non-examination of the material witnesses whose examination according to me was quite expedient for the just decision of the case as observed in the order sheet dated 1.9.1997. Under this circumstance if those witnesses could not be examined in the Court, the Public Prosecutor or the informant cannot be solely blamed for the same. The responsibility for their appearance in the Court was also of the trial Court since processes of warrants of arrest against such witness were already issued, by it. Hence it was obligatory on the part of the trial Court to take it to the necessary conclusion securing the attendance of the witnesses. This has not been done and still the learned trial Court has closed the case of the prosecution as noticed above on 12.5:1997. If. at all. non-production of the witnesses under the aforesaid circumstances would not be to any latch of the informant or the Public Prosecutor but on account of failure of the Court to secure their presence by taking recourse to the provisions of law in this regard. 16. It is important to mention here that the order dated 17.3.1997 shows that the informant had filed a transfer petition against the trial Court. The order sheet dated 12.5.1997 shows that this transfer petition was still pending. The allegation made in the transfer-petition may or may not be correct or may even be frivolous. 16. It is important to mention here that the order dated 17.3.1997 shows that the informant had filed a transfer petition against the trial Court. The order sheet dated 12.5.1997 shows that this transfer petition was still pending. The allegation made in the transfer-petition may or may not be correct or may even be frivolous. It is well settled that the Court is not only to do justice but also to show that justice is being done between the parties. If under this circumstances the Court proceeded in the matter without awaiting the result of the transfer-petition it cannot be said that to be a prudent act. It is only the order sheet dated 28.8.1997 which shows that this transfer-petition was finally rejected. This is also a circumstance about which I would like to make a mention at a later stage of the judgment. 17. From the impugned judgment as also from the order sheet it appears that probably the Court felt that its hands were fettered and it could not allow any further adjournment in the case for the examination of PWs on account of the order dated 7.4.1997 passed by this Court in Cr. Misc. No. 5281/97. It appears from this order that opposite-party No. 3 had filed a petition for grant of bail before this Court. This order sheet further shows that earlier his prayer for bail was rejected by this Court by order dated 13.3.1996. This order sheet, however, shows that this Court was hearing a bail matter in which the informant was not present. At least there is nothing in the order sheet to show that the informant or even Public Prosecutor was present or heard by the Court at the time of disposing of this petition. In this order sheet it has been observed as follows : "It is stated that due to delaying tactics adopted by the informant the trial has not been concluded as yet, inasmuch as he has filed several petition for the transfer of the case to some other Court which has ultimately been rejected." This observation has been made in this order by this Court. In this connection it has been pointed out by the learned counsel that the informant was not adopting any delaying tactics. In this connection it has been pointed out by the learned counsel that the informant was not adopting any delaying tactics. It has further been submitted that this observation by the Court was being made in absence of the informant and the A.P.P. If really the Court wanted to know about the petition for transfer or otherwise of the allegation made about the delaying tactics the proper course would have been to issue notice to the informant to meet any such allegation, here is, however, nothing in this order sheet to show that the informant was also noticed or that he was present when this matter was being heard and disposed of on 7.4.1997. It has further been pointed out that the law gives a person an option to file transfer-petition against a Court which cannot be denied to him. If a transfer-petition is filed by a party it cannot in all cases be held that it was done as a delaying tactics; more so when the informant is not present in the Court. Moreover there is obviously a mis-statement made in this order sheet inasmuch as it has been observed that all transfer- petitions have been ultimately rejected. If the informant would have been present on this date (7.4.1997), this mis-statement of fact in the order sheet could not have been made since it is clear that the order dated 12.5.1997 will show that the transfer petition was still pending and the order sheet dated 28.8.1997 would show that this transfer-petition was ultimately rejected by the Court. Hence to state that the transfer-petitions were already ultimately rejected on or before 7.4.1997 itself will not be a correct statement of fact. If the informant would have been present at the time of passing of the order on 7.4.1997, he could have certainly pointed out to the Court that his transfer-petition was still pending. While disposing of bail-petition of opposite-party No. 3 this Court observed as follows : "It is stated that 7 witnesses have already been examined. In that view of the matter, I direct the trial Court to conclude the trial on priority basis as expeditiously as possible without giving any further adjournment on any petition filed by the informant in this case. In that view of the matter, I direct the trial Court to conclude the trial on priority basis as expeditiously as possible without giving any further adjournment on any petition filed by the informant in this case. It is made clear that if the remaining witnesses were not made available on the date fixed it will be open to the trial Court to close the witness of the prosecution and conclude the trial in terms of the order aforesaid. With the aforesaid observation and direction this application is disposed of." 18. As pointed out above this order was passed in absence of the informant. It has been observed that no further adjournment was to be granted on any petition filed by the informant in this case. It may be mentioned here that the Public Prosecutor or Additional Public Prosecutor remains incharge of the prosecution of a sessions case and not the informant. The Public Prosecutor or the Additional Public Prosecutor has to produce the prosecution witnesses for their examination and the law does not give any role to the informant for their production. Hence it has been submitted that under the aforesaid circumstances there was no occasion for the informant to file any petition for time, since no such time petition may or may not have been filed by the Additional Public Prosecutor Incharge of this case. Also probably it was not pointed out to the learned single Judge that already warrants of arrest were issued to the witnesses by the Court and it was for the Court to secure their presence by exhausting all the process and by exercising the powers as given under law. Hence as such the informant was not required to file any petition for adjournment. Moreover, in the concluding portion it has been ordered that if the remaining witnesses are not made available on the date fixed it will be open to the trial Court to close the evidence of the prosecution and conclude the trial in terms of the order aforesaid. The learned trial Court interpretated it by saying that this direction properly meant that no adjournment at all could be granted to the informant to produce the witnesses. As already mentioned this order appears to have been passed in absence of the informant or the Public Prosecutor Incharge of this case. The learned trial Court interpretated it by saying that this direction properly meant that no adjournment at all could be granted to the informant to produce the witnesses. As already mentioned this order appears to have been passed in absence of the informant or the Public Prosecutor Incharge of this case. This order further directs that the witnesses were to be made available by the informant in the trial Court but it is silent on the point as to how they could be made available by the informant or even by the Additional Public Prosecutor Incharge of the case, since the Court has already issued warrants of arrest against them. However, the learned trial Court interpretated this order to mean that no further adjournment would be granted to the informant or the Additional Public Prosecutor for adducing any further evidence and even the petition filed under Section 311 of the Code was rejected. Since this ordered dated 7.4.1997 has been passed by this Court, I do not think it proper to make any observation in this regard. I am, however, simply mentioning the facts and circumstances under which this order was passed. 19. It has been seriously argued before me on behalf of the opposite-party that the informant has got no locus standi to file a revision-petition against the judgment of acquittal passed by the Session Court. It has been pointed out that, if at all, this power is vested in the State Government in terms of Section 378 of the Code to file an appeal in the case of acquittal. As a matter of fact it has been submitted that no revision application would lie against the judgment of acquittal inasmuch as there is a provision for filing an appeal as per Section 378 of the Code. As against it the learned counsel for the petitioner has submitted that the law provides that in a situation like this a revision will lie. In this connection my attention has drawn to the case of K. Chinnaswamy Reddy V/s. State of Andhra Pradesh and others, AIR 1962 SC 1788 . In this case it appears that in the sessions trial the Assistant Sessions Judge acquitted the appellants under Section 41J of the Indian Penal Code, in a case vhich was instituted on police report. On appeal the learned Sessions Judge acquitted them. In this case it appears that in the sessions trial the Assistant Sessions Judge acquitted the appellants under Section 41J of the Indian Penal Code, in a case vhich was instituted on police report. On appeal the learned Sessions Judge acquitted them. The informant filed a revision petition before the High Court against the judgment of acquittal. The High Court allowed the revision petition and ordered for re-trial. Against this order, one of the accused, namely, K. Chinnaswamy moved the Honble Supreme Court. In paragraph 7 of this judgment it has been observed 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." However, it was observed that this jurisdiction by the High Court has to be exercised only in exceptional cases and it cannot be used for conver ting a finding of acquittal into one of conviction by the indirect method of ordering retrial. The exceptional cases have been mention in this judgment and one of them is as follows : "Where the -trial Court has wrongly shut evidence which the prosecution wished to produce." 20. In the present case as has been noticed above the trial Court has shut out the prosecution evidence and, therefore, as per the terms of this judgment it was one of the exceptional cases in which a revision would lie at the instance of the informant against the judgment of acquittal. The ratio of this decision has been upheld in the case of State of Orissa V/s. Nakula Sahu and others, AIR 1979 SC 663 . In this decision, against the judgment of conviction, a revision was filed in the High Court which set aside the judgment of conviction passed by the trial Court and upheld the judgment passed by the lower Appellate Court, which had acquitted the respondents. On appeal the matter went before the Honble Supreme Court. Here also it was held that the jurisdiction of the High Court under Section 439 (old 401) (new) is to be exercised only in exceptionally cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice. Here also it was held that the jurisdiction of the High Court under Section 439 (old 401) (new) is to be exercised only in exceptionally cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice. In the present case as has been noticed above there has been miscarriage of justice on account of wrongly shutting out the prosecution evidence. In the case of Ayodhya Dube and others V/s. Ram Sumer Singh, AIR 1981 SC 1415 , the Honble Supreme Court upheld the ratio of the decision in the case of K. Chinnaswamy {supra}. 21. The learned counsel appearing on behalf of the opposite-party has drawn by attention to the case of Kishan Swaroop V/s. Govt, of NCT of Delhi, AIR 1998 SC 990 : 1998 (2) East Cr C 625 (SC). In this decision also the ratio of the decision in the case of K. Chinnaswamy (supra) was followed and it was observed as follows in paragraph No. 4 : "In dealing with the 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 this Court observed in Chinnaswamy Reddy (on which judgment the High Court relied) as under : 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, 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." Thus, this decision also does not help the learned counsel for the opposite- parties. 22 In this connection a reference may also be made to the case of Vimal Singh V/s. Khuman Singh, AIR 1998 SC 3380 : 1998 (2) East Cr C 1098 (SC). 22 In this connection a reference may also be made to the case of Vimal Singh V/s. Khuman Singh, AIR 1998 SC 3380 : 1998 (2) East Cr C 1098 (SC). In this decision also reliance was placed on the case of Chinnaswamy (supra), and it was observed that in case the trial Court illegally shut out relevant evidence the revisional power of the High Court can be exercised under Section 401 of the Code and the High Court can order for re-trial. 23. From the aforesaid it becomes clear that the informant has got a locus standi in the matter and it cannot be said that he could not have filed the revision-application. Hence, I do not find merit in the submission of the learned counsel for the opposite-party. In this connection, I would like to mention that this matter come up for consideration before a Division Bench of this Court of which, I was also a member in the case of Kara Bilash Prasad V/s. Binda Tanti and others, 2000 (1) PLJR 879 , in which also it was held that the revision against the order of acquittal at the instance of the informant or a witness or any other interested person in litigation is maintainable. 24. From the facts of the present case it would appear that before the learned trial Court PWs 1 and 2 had not supported the case of the prosecution and were, therefore, declared hostile. The learned counsel for the prosecution, however, drew their attention to the statement made by them under Section 164 of the Code and recorded by a Magistrate. Before the learned trial Court they have denied to have made those statements under Section 164 of the Code, which have, however, been proved by the examination of the Magistrate (PW 7) and have been marked as Exts. 2 and 2/1. In their statements recorded under Section 164 of the Code they have fully supported the case of the prosecution. However, before the trial Court they have resiled for their earlier statement made under Section 164 of the Code and have given a go by to the prosecution case. 2 and 2/1. In their statements recorded under Section 164 of the Code they have fully supported the case of the prosecution. However, before the trial Court they have resiled for their earlier statement made under Section 164 of the Code and have given a go by to the prosecution case. On behalf of the opposite- party it has been submitted that the statements of these witnesses recorded under Section 164 of the Code cannot be said to be substantive evidence in the eyes of laws and at best they can be used at contradict or to corroborate the witnesses. On behalf of the petitioner it has been submitted that they wanted to use those statements made under Section 164 of the Code not as substantive evidence but only to contradict the evidence of PWs 1 and 2 since before the trial Court they have given a complete goby to their earlier statements recorded under Section 164 of the Code. 25. The law on this point appears to be well settled. In this connection, I will firstly refer to the case of Bhuboni Sahu V/s. The King Emp., AIR (36) 1949 PC 257. In this decision it has dearly been held by Privy Council that the statement made under Section 164 of the Code can never be used as substantive evidence of the facts stated but it can be used to support or challenge the evidence given in the Court by a person who made the statement. This view has also been taken in the case of Ram Kishaa Singh V/s. Harit Kaur and another, AIR 1972 SC 468 , in which it was held the statement made under Section 164 of the Code is not substantive evidence but it can be used to corroborate or to contradict a witness. Similarly a three Judges Bench of the Honble Supreme Court in the case of State of Rajasthan V/s. Kartar Singh, AIR 1970 SC 1305 , has clearly held that the statement of a witness recorded under Section 164 of the Code is not substantive evidence but it can only be used to corroborate or to contradict a witness examined in the Court. Also in the case of Mamand and others V/s. Emperor, AIR 1946 PC 45, it has been held that if the Court finds that in view of his statement recorded under Section 164, a witness had been won over by the defence his evidence must be entirely ignored. 26. From the aforesaid it would appear that the statements made under Section 164 of the Code cannot be said to be as substantive evidence. It can only be used to corroborate or to contradict a witness examined in the Court. The learned, counsel for the peti- tioner has submitted that it is precisely to cgntradict PWs 1 and 2 that they wanted to use the statement of these witnesses recorded by the Magistrate under Section 164 of the Code and that they do not want to use them as substantive evidence. The submission made by the learned counsel for the petitioner has got merit and has to be accepted. From this it would appear that on this account the evidence of PWs 1 and 2 given in the Court by which they have given a complete goby to the prosecution case has to be ignored in view of their statement made under Section 164 of the Code. 27. From the detailed discussions made above it becomes perfectly clear to me that this judgment of acquittal cannot be sustained as the learned trial Court has shut out the evidence of the prosecution witnesses and as the impugned judgment also suffers from many other glaring legal defects about which I have already mentioned above. Also in view of the decision in the case of Vimal Singh [supra], while disposing of the revision application this Court can order for re-trial. 28. In the result, this revision application is allowed and the impugned judgment is quashed. It is ordered that the learned trial Court will proceed with the re-trial of the case from the stage at which the evidence of the prosecution was closed on 12.5.1997. Trial Court will permit the informant and the prosecution to adduce further evidence which they may think necessary in order to prove their case and to this extent the order dated 12.5.1997 will stand modified. The learned trial Court will further proceed to conclude the trial and to pass the judgment in accordance with law as soon as possible. 29. With the aforesaid observation this revision application is allowed.