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2001 DIGILAW 430 (PAT)

Yogendra Sah v. Brij Nandan Sah

2001-05-15

ANIL KUMAR SINHA

body2001
Judgment ANIL KUMAR SINHA, J. 1. This revision application has been directed against the judgment and order dated 1.12.1998 passed by Sri S.C. Srivastava, Judicial Magistrate, 1st Class, Pupari at Sitamarhi in G.R Case No. 601/88, whereby he acquitted the accused-persons of the charges levelled against them. 2. Some of the facts is relevant for proper appreciation in this revision application are stated as hereunder. The complainant-petitioner filed a complaint in the Court of S.D.J.M., Pupari at Sitamarhi against opposite party Nos. 1, 2 and four others under Sections 467, 468, 420/120-B of the Indian Penal Code on the allegation that opposite party No. 1 had agreed to sell 0.03 acre of land to the complainant for consideration of Rs. 12,000/- out of which a sum of Rs. 3,100/- had been paid to opposite party No. 1 as advance and a sum of Rs. 8,500/- was paid at the time of execution of sale deed which was registered on 5.4.1988 and the remaining sum of Rs. 400/- was to be paid at the time of giving the receipt of the sale deed. Subsequently, the complainant offered a sum of Rs. 400/- to opposite party No. 1 and demanded the registration receipt but the opposite party No. 1 avoided to give the same on some pretext. The petitioner suspected something foul and obtained certified copy of he sale deed and found that the figure 8 occurring on the right side of 8,500/- was penned through and figure 8 was inserted on the left of figure 400, thus showing the dues of Rs. 8,400/-. It is, therefore, alleged that opposite party No. 2 made some interpolation at the end of the sale deed. The complaint was sent to the police station for investigation and final report was submitted by the police. But after considering the police report and the case diary, the Court took cognizance against opposite party No. 1 under Section 420 of the Indian Penal Code. Accordingly, the charge under Section 420 of the IPC was framed against opposite party No. 1 and the trial proceeded. In course of the trial PWs 1 and 2 were examined, cross-examined and discharged. Thereafter, a petition was filed to issue summons upon opposite party No. 2 as sufficient materials were available on record against him. Accordingly, the charge under Section 420 of the IPC was framed against opposite party No. 1 and the trial proceeded. In course of the trial PWs 1 and 2 were examined, cross-examined and discharged. Thereafter, a petition was filed to issue summons upon opposite party No. 2 as sufficient materials were available on record against him. The Court issued summons against opposite party No. 2 under Section 319 of the Cr PC and a fresh charge was framed against opposite party No. 2 under Section 467 of the IPC on 17.7.1990 and opposite party No. 1 was separately charged under Section 463 of the IPC on the same day. Both the accused denied the charges so framed against them and the trial proceeded. It appears that PW 2 was not produced for his cross-examination as required under Section 319(4) of the Cr PC. However, four witnesses were examined, cross-examined and discharged after the framing of fresh charge against opposite parties. 3. It appears from the impugned judgment delivered by the trial Court that the trial Court did not consider the evidence of PW 2 on the ground that he was not produced for his evidence after framing of charge after in being summoned under Section 319 of the Cr PC. 4. The learned counsel appearing for the petitioner submitted that the trial Court has committed serious illegality by not considering the evidence of PW 2, namely, Feku Sahnor any reason has been assigned by the trial Court for discarding the evidence of other PWs. As such, it was submitted that the impugned order passed by the trial Court should be set aside and the matter should be remitted back to the Court below for passing a fresh order in accordance with law. The learned counsel appearing for the opposite parties, however, contended that the trial of opposite party No. 2 could not be separated and as such the trial Court was justified in ignoring the evidence of PW 2. It was also contended that after framing of the fresh charge the defence did not get opportunity to cross-examine PW 2 The submission of the learned counsel appearing for the opposite parties have got no merit in it in view of the admitted position that PW 2 had not been examined after framing of the fresh charge. It was also contended that after framing of the fresh charge the defence did not get opportunity to cross-examine PW 2 The submission of the learned counsel appearing for the opposite parties have got no merit in it in view of the admitted position that PW 2 had not been examined after framing of the fresh charge. However, the submissions advanced by the learned counsel for the petitioner are well founded, inasmuch, as I am of the view that even if the prosecution had not produced PW 2 for his cross-examination after framing of fresh charge against opposite party No. 2 after being summoned under Section 319 of the Cr PC, the learned trial Court should have considered the evidence of PWs 1 and 2 which was recorded before the stage of 319 of the Cr PC and it could not have totally discarded the evidence of PW 2 on he grounds as stated above. 5. It is no doubt, true that the revisional jurisdiction of the High Court against the order of acquittal should be exercised in exceptional circumstances. In case of K. Chinnaswamy Reddy V/s. State of Andhra Pradesh and another, reported in AIR 1962 SC 1788 , the Apex Court held as hereunder : "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. 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 limitations in the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. This places limitations in the power of the High Court to set aside a finding of acquittal in revision and it is only in 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 interferring 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 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 is 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 justifiably 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). We have therefore, to see whether the order of the High Court setting aside the order of acquittal in this case can be upheld on these principles." 6. In the instant case, I find that the trial Court has not considered the material evidence of PW 2. As such the decision referred to above is fully applicable in the instant case. 7. In the circumstances of the case, the impugned judgment of acquittal recorded by the trial Court is set aside and the matter is remitted back to the Court below for passing a fresh order in accordance with law in the light of observation made above. The learned trial Court shall, however, give opportunity of fresh hearing and give opportunity to record evidence, if any, produced by the prosecution on the date fixed without giving any latitude of unnecessary adjournment. 8. In the result, therefore, this revision application is disposed of.