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2001 DIGILAW 695 (CAL)

Prosenjit Mitra v. Chanda Fozdar

2001-10-19

Narayan Chandra Sil

body2001
JUDGMENT N. C. Sil, J.: This revisional application was directed against the order dated 18.1.2001 passed by Sri Arup Das, learned Sessions Judge, Purulia in connection with Criminal Revision No. 40 of 1998 arising out of the order dated 05.01.1998 passed by the learned Judicial Magistrate, 4th Court, Purulia in connection with G. R. Case No. 525 of 1994. It is, inter alia, stated in the revisional application that the learned court below erred in law and facts and exercised the jurisdiction not vested on it. The learned Sessions Judge re-appreciated the evidence and came to a different conclusion exceeding his jurisdiction conferred under section 297 of Code of Criminal Procedure. It is also stated that the learned Sessions Judge had erroneously exercised revisional jurisdiction when from the facts and circumstances appearing on the record, no interference was warranted. It is argued by Mr. Sekher Basu, the learned Advocate for the revisionist that the learned Sessions Judge purportedly found discrepancies in the evidence, although the learned Sessions Judge did not discuss as to what are those discrepancies and on such finding the learned Sessions Judge directed the learned trial Judge to re-write the judgment. It is also pointed out by him that there was absolutely no question of framing of any additional charge. Mr. S. Basu, the learned Advocate for the revisionist has also drawn my attention to the provision of section 167 of the Evidence Act. He has also referred to the ratio decided in the case of Bansi Lal vs. Laxman Singh, AIR 1986 SC 1721 . It was held in that case that the High Court sitting in revisional jurisdiction is empowered to exercise the power to set aside the order of acquittal and direct a retrial of the acquitted accused but such power is to be exercised very sparingly. It was further observed by the Hon'ble Supreme Court that a mere circumstance that a finding of fact recorded by the trial court may in the opinion of the High Court be wrong, will not justify the setting aside of the order of acquittal and directing a retrial of the accused. It was further observed by the Hon'ble Supreme Court that a mere circumstance that a finding of fact recorded by the trial court may in the opinion of the High Court be wrong, will not justify the setting aside of the order of acquittal and directing a retrial of the accused. It was also observed that even in an appeal the Appellate Court would not be justified in interfering with an acquittal merely because it was inclined to differ from the findings off act reached by the trial court on the appreciation of the evidence and the revisional power of the High Court is much more restricted in its scope. 2. Mr. Himangshu Dey, learned Advocate for the O. P. wife has argued that nothing wrong was there in the judgment passed by the learned Sessions Judge and he has referred to a number of case laws. Thus, it was held in the case of Ayodhya vs. Ram Sumer Singh, AIR 1981 S. C. 1415, that when the Sessions Judge acquitted the accused by Ignoring the probative value of F. I. R. and reliable testimony of eye witnesses and without considering the material evidence on record and his judgment was full of inconsistencies and consisted of faulty reasoning, the order of the High Court in revision directing retrial by setting aside acquittal would be justified. Mr. Dey has also relied on the ratio decided in the case of Bansi Lal (supra) as referred to by Mr. S. Basu, the learned Advocate for the revisionist and has taken me through the ratio decided in the case of Akalu Ahir vs. Ramdeo Ram, AIR 1973 SC 2145 , discussed in that case. The right of the private person in preferring a revisional application before the Court has been discussed and established in the ratio decided in the case of Akalu Ahir. Mr. Dey has also referred to the ratio decided in the case of Kaptan Singh & Ors. vs. State of M. P. & Anr., 1997 (2) A. I. C. L. R. 592. It was decided in that case that the revisional power of the High Court while sitting in judgment over an order of acquittal should not be exercised unless there exists a manifest illegality in the judgment or order of acquittal or there is grave miscarriage of justice. Mr. It was decided in that case that the revisional power of the High Court while sitting in judgment over an order of acquittal should not be exercised unless there exists a manifest illegality in the judgment or order of acquittal or there is grave miscarriage of justice. Mr. Dey has also referred to the ratio decided in the case of Kishan Swaroop vs. Govt. of NCT of Delhi, 1998 SCC Cri. 1587, in which the right of private party to prefer a revisional application before the High Court has been decided in the affirmative. Mr. Dey has also referred to the ratio decided in the case of K. C. Pani vs. Ganesh Dalal, 1992 Cr. L. J. 281. In that case the High Court at Orissa had set aside the order of acquittal and directed the order of retrial on the ground that the trial court had overlooked the vital and crucial evidence adduced and based the judgment of acquittal on surmises. Mr. Dey has also referred to the ratio decided in the case of Nandkishore vs. State of Maharashtra, 1995 Cri. L. J. 3706, in which it was, inter alia, held that the evidence of the interested witnesses particularly to the related person of the victim cannot be rejected, for, disclosure of cruelly would normally be made only to such related persons. 3. The case was under section 498A IPC before the learned Judicial Magistrate, 4th Court, Purulia. The learned Magistrate after having considered the evidence of the witnesses and the materials placed before him was pleased to find the accused persons not guilty for the offence under section 498A IPC and as such the accused persons were acquitted by him under section 248(1) of Cr. P.C., although the certified copy of the judgment of the trial court placed before us shows that the acquitting section has been wrongly mentioned therein as section 448(1) Cr. P.C. 4. It appears that as many as 5 witnesses were examined on behalf of the prosecution while the accused No.2, Indrajit Mitra had examined himself as witness for the defence before the learned trial Magistrate. Several letters had been produced before the learned trial Magistrate and those were exhibited there. It appears that the learned trial court had taken those letters into consideration. Several letters had been produced before the learned trial Magistrate and those were exhibited there. It appears that the learned trial court had taken those letters into consideration. In those letters the wife was repeatedly requested by her in-laws and her husband to come back to her in-laws house. The learned Magistrate appears to have considered the evidence adduced by the witnesses before him. In course of his dealing with the case it was found by him that the G. D. Entry No. 190 dated 12.3.1993 was lodged at Mouri Police Outpost alleging inter alia that despite several persuasions when Chanda, the wife did not come to her in laws house, Indrajit went to bring her back, but he was insulted and assaulted in the house of Chanda's father. It also appears from the judgment of the learned Magistrate that Prosenjit, the husband filed a suit for restitution of conjugal rights in the court of District Judge which was decreed. After having considered everything and also the fact that no independent witness was examined by the prosecution, the learned trial court came to the conclusion that the charge framed against the accused persons under section 498A was not established. 5. The learned Sessions Judge sitting in revisional jurisdiction had observed that the trial court ignored the evidence as regards the payment of dowry and that the judgment of the learned trial court was based on the fact that it failed as no independent witness was examined. The learned Sessions Judge thus made his observation as below: “The evidence is there for ill-treatment. .........Therefore, the case of dowry demand is prima facie made out.” (emphasis added) and with such observation the learned Sessions Judge ,was pleased to direct the learned trial Magistrate: "The case is remand (sic) back to the learned trial court for proper adjudication by writing a fresh judgment on the basis of materials on record after hearing both the sides in the light of above observation." (underlined for emphasis) Thus, the learned Sessions Judge in his judgment appears to have disclosed his mind with the observation that “the evidence is there for ill-treatment” and with that observation the learned Sessions Judge has directed the learned trial court to write a fresh judgement not only on the basis of materials on record but on the light of the observation made out by the learned Sessions Judge himself. This has made the judgment of the learned Sessions Judge perverse inasmuch as the mind of the learned trial Magistrate will be haunted by the observation of the learned Sessions Judge “the evidence is there for ill-treatment.” And in such case it cannot be expected of the learned trial Magistrate that his decision will be free, fair and without fear. Besides, the learned Sessions Judge had directed the learned trial Magistrate only to re-write the judgment after hearing both the sides, although it was observed by the learned Sessions Judge that there was prima facie case made out as regards dowry demand. The learned Sessions Judge did not keep it open for the Magistrate to frame additional charge and to take evidence thereon. Further, the revisionist before the learned Sessions Judge did not appear to have been aggrieved for not framing the charge under dowry prohibition laws. 6. It is the settled principle that the private person has also got the right to prefer a revisional application if it is found that such private person has been affected and aggrieved by the judgment or order of the court. And this is what is, in fact, not challenged by the revisionist before us. The learned Magistrate in the instant case appears to have weighed the evidence of the witnesses to the best of his abilities. There appears nothing as regards any objection to proving the letters produced by the defence before the learned trial Magistrate. The learned trial Magistrate had also considered the decree in a suit for restitution of conjugal rights filed by the husband. There appears nothing in the judgment of the trial Magistrate that he had acquitted the revisionists only for want of independent witnesses. The learned Sessions Judge does not appear to have considered these aspects in his laconic judgment. Accordingly, there is no occasion for us to hold that this is a glaring case of injustice in the judgment of the trial court resulting there some violation of fundamental principles of law. The Hon'ble Supreme Court in the judicial pronouncements, as discussed earlier, directed the revisional authorities to invoke revisional jurisdiction very sparingly in case the revision is filed against the acquittal. Accordingly, we do not find any application of the case laws referred to by the learned Advocate for the respondents. 7. The Hon'ble Supreme Court in the judicial pronouncements, as discussed earlier, directed the revisional authorities to invoke revisional jurisdiction very sparingly in case the revision is filed against the acquittal. Accordingly, we do not find any application of the case laws referred to by the learned Advocate for the respondents. 7. In view of the discussions made above in the foregoing lines and having relied upon the ratio decided in the case of Bansi Lal & Ors. (supra), the present revisional application is hereby allowed on contest. The impugned order dated 18.1.2001 passed by the learned Sessions Judge, Purulia in Criminal Revision No. 40 of 1998 is hereby set aside. 8. A copy of this judgment be sent down to both the learned lower courts forthwith. Revisional application allowed.