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2008 DIGILAW 100 (JK)

Jeet Ram Chowdhary v. Gian Chand

2008-04-03

VIRENDER SINGH

body2008
1. The revision on hand is filed by the first informant Jeet Ram Chowdhary, (hereinafter to be referred to as the complainant) impugning the judgment of learned 2nd Additional Sessions Judge, Jammu dated 11-12-2001, whereby all the three respondents (hereinafter referred to as accused) stand acquitted in a police case bearing FIR No.63/92 registered at police Station, Khore under sections 109/201/498-A and 306 RPC read with Section 3/5 of Dowry Act. 2. Admitted position is that State has not preferred any appeal against the acquittal earned by the accused and for this reason, complainant has arrayed the State as pro forma respondent. 3. Heard learned counsel for both the sides and with their assistance, perused the record. 4. The grievance projected by Mr. Kalgotra is that the learned trial Court was not legally entitled to critically appreciate and weigh the evidence of the prosecution under section 273 Cr. PC, as according to learned counsel, at this stage, the accused could be acquitted only if there was no evidence available on record, whereas in the present case, there was sufficient evidence with the prosecution and, therefore, it was not a case of acquittal at least under section 273 Cr. PC. 5. According to Mr. Kalgotra, not only the impugned judgment is suffering from the aforesaid material flaw, even on merits, the accused have no escape as provisions of section 114-B of Evidence Act read with section 498-A of RPC are attracted in this case. The deceased had died an unnatural death within seven years of marriage and the case of the complainant was that she was being harassed continuously by her husband and other relatives. The circumstances around created by all the accused abetted her to commit suicide. Mr. Kalgotra states that since the revision stands admitted, the entire evidence has to be re-appreciated afresh. 6. Mr. Kalgotra, however, agrees that in a revision filed by the complainant in a State case, where the accused have earned acquittal, the finding of acquittal cannot be converted into finding of conviction, but it can certainly be disturbed for the purposes of remanding the case to the trial Court for deciding it afresh in accordance with law and the complainant, in fact, prays for the said relief only through the medium of instant petition. 7. Controverting the submissions advanced by Mr. Kalgotra, Mr. 7. Controverting the submissions advanced by Mr. Kalgotra, Mr. Surinder Singh submits that section 273 has been enacted to save the time of the Court and also to save the accused from unnecessary harassment to face the trial any further, if the Court at this stage feels that there is no evidence to convict the accused of the offence. Therefore, even if the Judge has given good reasons for not placing reliance on the prosecution evidence on record, no prejudice is caused to the prosecution. According to learned counsel, at this stage, the learned trial Judge, in any case, cannot record an order of conviction against the accused and, therefore, giving a detailed judgment of acquittal, at least, may not be termed as illegal one. It is at the most a procedural irregularity causing no miscarriage of justice. 8. The instant revision, in my view, calls for a debate on certain aspects. 9. Scope of interference in a criminal revision filed by a complainant against an order of acquittal earned by the accused in police challan case (State case) is well explained by Apex Court in case Bindeshwari Prasad Singh alias B.P. Singh and others v. State of Bihar (AIR 2002 SC 2907). In the said case, their Lordships observed in para 14 as under. "14 ................ This Court has repeatedly observed that in exercise of revisional jurisdiction against an order of acquittal at the instance of a private party, the Court exercises only limited jurisdiction and should not constitute itself into an appellant Court which has a much wider jurisdiction to go into questions of facts and law, and to convert an order of acquittal into one of conviction. It cannot be lost sight of that when a re-trial is ordered, the dice is heavily loaded against the accused, and that itself must caution the Court exercising revisional jurisdiction.. ......." 10. In a very latest judgment rendered by Apex Court in case Johar & Ors. v. Mangal Prasad & Anr, 2008 AIR SCW 1106, their Lordships have held that jurisdiction to enter into a revision petition although is not barred but severally restricted particularly when it arises from a judgment of acquittal. 11. From the aforesaid legal position, it can now be very comfortably said that the revisional jurisdiction being in nature of correctional jurisdiction is required to be exercised in the case of circumspection. 11. From the aforesaid legal position, it can now be very comfortably said that the revisional jurisdiction being in nature of correctional jurisdiction is required to be exercised in the case of circumspection. Law is well settled that order of acquittal passed by a criminal Court cannot be interfered with while exercising the revisional jurisdiction, unless it is shown that the Court lacks competence to pass the order or has exceeded the jurisdiction vested in it resulting into an illegality or impropriety. Factual finding of the criminal Court would not be open to interference if it is not perverse, i.e., not supported by the evidence available on the record. In exercise of its revisional jurisdiction, the revisional Court is not legally entitled to convert a finding of acquittal into a finding of conviction by indirect method of ordering re-trial by re-appreciation of the evidence. 12. In the instant case, the order impugned has been passed though under section 273 Cr. PC, but after due appreciation of evidence. Therefore, in my view, the following questions arise for consideration: Whether appreciation of prosecution is permissible under section 273 Cr. PC? If the same is not permissible, whether recording of an order of acquittal in terms of section 273 Cr. PC after due appreciation of evidence, renders the order illegal? For answering first question, it is necessary to understand the scope of section 273 Cr. PC, which reads thus: "Section 273. Acquittal If after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal." 13. From bare reading of the Section, it transpires that the Session Judge is bound to record an order of acquittal if, in his opinion, there is `no evidence available on record to show that accused had committed the offence for which he has been charged and tried. However, said power can only be exercised after the prosecution has led its evidence and the statement of the accused is recorded in terms of section 342 Cr. PC and further that the prosecution and the accused have been heard. However, said power can only be exercised after the prosecution has led its evidence and the statement of the accused is recorded in terms of section 342 Cr. PC and further that the prosecution and the accused have been heard. The word `evidence used in the Section would mean only the legal evidence, i.e., the evidence which can legally be admitted in evidence and is capable of being read against the accused irrespective of its qualitative value. Qualitative value of the evidence in law can be determined in criminal trial by critically examining the evidence on the touchstone of cross-examination and probability factor. Such appreciation of evidence of the prosecution at the stage of section 273 Cr. PC is not permissible. Therefore, the Session Judge for finding out as to whether the case is of no evidence has to look at the evidence of the prosecution to see whether there is any evidence connecting the accused to the commission of offence available on the record of the case. If there is no such evidence, the accused is entitled to acquittal. If there is such evidence available, but the same cannot be read against the accused being inadmissible evidence, still the accused is to be acquitted. But if there is evidence suggesting that the accused has committed the offence and such evidence is legally admissible, the acquittal of the accused by holding the evidence not reliable for conviction after its due appreciation, would not be permissible. 14. The expression `no evidence used in section 273 of Cr. PC thus means that there is not on record any evidence which would amount to legal proof of the offence charged against the accused and would certainly not mean no satisfactory trustworthy or conclusive evidence. The Court cannot address to the question at this stage with regard to the sufficiency or reliability of evidence for recording acquittal. 15. If the present case is seen in the light of the aforesaid discussion, I do not feel hesitant in observing that the learned trial Court has committed an irregularity by considering the question of reliability of the evidence. 15. If the present case is seen in the light of the aforesaid discussion, I do not feel hesitant in observing that the learned trial Court has committed an irregularity by considering the question of reliability of the evidence. No doubt, in the concluding Para of the judgment, it is said that it appears to be a case of no evidence which is the requirement of law for recording an order of acquittal under section 273, but if one reads the entire judgment, the learned trial Judge, no doubt, considered the question of reliability of evidence by discussing almost all the witnesses including the Investigating Officer. It has gone to the extent of even observing that the prosecution story is nothing, but an after thought. This approach, at this stage, was unwarranted. 16. Now the next question arises for consideration is, whether consideration of evidence with a view to adjudge its reliability for acquittal of the accused can be said to be material irregularity vitiating the entire trial. At the same time, the said irregularity has also caused miscarriage of justice so as to disturb the finding of acquittal for the purposes of remitting the case back to the trial Court, as Mr. Kalgotra prayed for. 17. Section 273 Cr. PC has been enacted for enabling the Session Judge to record an order of acquittal before calling the accused to enter upon his defence, if he finds that there is no legal evidence available on record for connecting him with the offence charged. It goes without saying that under section 273 Cr. PC, the accused can only be acquitted and not convicted. I test this case on another anomaly. Had the trial Court allowed the accused to resort to the other two stages and then heard both the sides as it is, the net result would have been the same. To understand it with more clarity, reference to sections 274 and 275 of Cr. PC has become relevant. These two sections are also the enabling sections providing an opportunity to the accused to enter into defence. Had the trial Court passed a detailed order on the reliability of evidence calling upon the accused to enter into the stage of section 274 of Cr. PC, it could be said that it amounted to expression of opinion causing prejudice to the accused. Had the trial Court passed a detailed order on the reliability of evidence calling upon the accused to enter into the stage of section 274 of Cr. PC, it could be said that it amounted to expression of opinion causing prejudice to the accused. In that eventuality, the irregularity or defect in the procedure adopted would have certainly caused flagrant miscarriage of justice. The factual position in the case on hand is altogether converse. 18. Their Lordships, in Johars case (Supra), have observed that while exercising its revisional jurisdiction, the Court is expected to see as to whether the defect in procedure has caused flagrant miscarriage of justice to the prosecution in a case of acquittal. In my considered view, the detailed appreciation of evidence by the learned trial Judge has caused no prejudice to the prosecution or, as a matter of fact, to the complainant much less causing flagrant miscarriage of justice. The impugned judgment is dated 11-12-2001. Record reveals that the accused were examined on 10-12-2001 under section 342 of Cr. PC. The case was then posted for 11-12-2001 on which date both the sides were heard and the impugned order was passed. This reflects that all the procedural requirements were complete before the prosecution case was heard under section 273 of Cr. PC. At the cost of repetition, I may state here that this section is for the benefit of the accused and not the prosecution, whereas section 276 Cr. PC is for either side, as at that stage, the trial has ultimately to end either into acquittal or conviction. So, taking the present case on this rationale, it can be comfortably said that no miscarriage of justice is caused to the prosecution/complainant side by recording an order of acquittal. 19. To be fair to both the sides, I have once again considered the case of the prosecution with regard to the reliability of evidence but within the limited scope of appreciation following the ratio laid down by Honble Supreme Court in the aforesaid cases Bindeshwari Prasad Singh alias B.P. Singh and others v. State of Bihar; and Johar & Ors. V. Mangal Prasad & Anr. (supra). I have gone through the record also. But for referring to section 114-B of Evidence Act, which needs to be read with section 498-A of RPC for the purposes of drawing the presumption, Mr. V. Mangal Prasad & Anr. (supra). I have gone through the record also. But for referring to section 114-B of Evidence Act, which needs to be read with section 498-A of RPC for the purposes of drawing the presumption, Mr. Kalgotra has not been able to pin point any flaw on any count in the impugned judgment. In fact, his main thrust was only on the procedural irregularity committed by the learned trial Court. I am also of the considered view that the learned trial Court has given good reasons for not placing reliance on the prosecution evidence. No material aspect of the case has been left untouched by it. At the cost of repetition, I may observe here that, no doubt, for recording the order of acquittal, the learned trial Court has observed that it is a case of `no evidence, so as to bring it within the purview of section 273 of the Code, but, in fact, the reasons enumerated in the impugned judgment leave no room of doubt to say that the learned trial Court has considered the reliability of prosecution evidence. If the present case is re-scanned from that angle, in my considered view, there is no infirmity or perversity in the impugned judgment, warranting indulgence of this Court. The net result is that the instant revision petition is dismissed. 20. Before parting with the judgment, I may observe here that the criminal courts dealing with the session case(s), while recording an order of acquittal at the stage of section 273 Cr. PC, should not consider the question of reliability of evidence at all, lest it may give the impression that a procedural irregularity is committed. Let it be a note of caution. Registrar Judicial to circulate the judgment amongst all the Session Judges of the State.