Judgment : Animadverting upon the order dated 29. 2006 passed by the learned Judicial Magistrate, Coonoor in C.C. No. 13 of 2005 this criminal revision petition is focused. 2. Pithily and precisely, the relevant facts, which are absolutely necessary and germane for the disposal of this criminal revision petition would run thus: (i) The police laid the police report in terms of Section 173(2) of the Code of Criminal Procedure as against the following accused persons: 1. Leela Fernandes 2. Reginold Fernandes 3. William Fernandes 4. Joycee Prerna 5. Usha Franglin 6. Krishnan 7. Ravi 8. Mohanakrishnan 9. Raghu Inasmuch as they pleaded not guilty, trial was conducted. (ii) During trial, on the prosecution side P.Ws.1 to P.W.12 were examined; Exhibits P-1 to P-12 were marked. On the accused side, no oral evidence was adduced; but Exhibits R-1 and R-2 were marked and the Court document, Exhibit C-1 was also marked. (iii) Ultimately, the trial Court acquitted the accused. (iv) Animadverting upon such judgment of acquittal, the de facto complainant preferred this revision on various grounds, the gist and kernel of them would run thus: The learned Magistrate, wrongly understood the evidence of P.Ws.1 and 11 on the ground that the APP himself cross-examined those witnesses as hostile witnesses erroneously. Due opportunity was not given to prosecute the case. By engaging an advocate so as to assist the prosecution, even though the petitioner herein obtained an order to that effect from the Hon’ble High Court. The chequered career in the case would speak by itself that the judgment of the learned Magistrate is not tenable and it has to be set aside. .(v) Accordingly, he prayed for setting aside the order passed by the learned Magistrate and for remanding the matter back to the trial Court for proceeding with the case, in accordance with law. 3. Heard both sides. 4. The point for consideration are as to: .(i) Whether the judgment of acquittal passed by the learned Magistrate is perverse and not in accordance with law? .(ii) Whether as per the High Court’s order dated 28. 2006, the petitioner is entitled to get the matter remanded back to the trial Court and adduce further evidence by engaging an advocate of his choice to assist the prosecution? 5. .(ii) Whether as per the High Court’s order dated 28. 2006, the petitioner is entitled to get the matter remanded back to the trial Court and adduce further evidence by engaging an advocate of his choice to assist the prosecution? 5. The whole kit and caboodle of facts and figures, which could be understood and captured, deduced and grasped from the records of the lower Court is that the de facto complainant attempted to lodge a complaint with the police. But, in view of the erratic conduct on the part of the officials, he could not lodge his complaint with the police, whereupon he sent it through post to the higher authorities; as such on the direction of the higher authorities, the complaint dated 5. 2004 sent by P.W.1 was registered in Crime No.298 of 2004 on 17. 2004 as against the accused persons, for the offences under Sections 147, 148, 447, 385 read with 149 IPC. 6. After conducting investigation the police laid the police report under Section 173(2) of the Code of Criminal Procedure, the warp and woof of them would be to the effect that on 30.4.2004, at about 7 p.m the accused persons formed themselves into an unlawful assembly with the common object to barge into the house of P.W.1 and take away his articles both valuable and non-valuable articles and also dispossess P.W.1 and his family members of that house and in pursuance of their common object they carried out their wish and also demolished the compound wall of the house in the occupation of the de facto complainant. 7. It is the grievance of the de facto complainant that the Assistant Public Prosecutor did not conduct the prosecution properly and in accordance with law and he even went to the extent of treating complainant P.W.1 and his wife P.W.11 as hostile witnesses, even though these witnesses stuck to their guns while deposing before the Court, as per the versions, as found set out in the first information report as well as in the Section 161 statement. 8. No doubt, according to the learned counsel for the revision petitioner, there are certain additions in the depositions of P.Ws.1 and 11 and the Court could have even de hors those additional versions or additional averments could have arrived at a conclusion as against the accused. But, it was not done so. 9. 8. No doubt, according to the learned counsel for the revision petitioner, there are certain additions in the depositions of P.Ws.1 and 11 and the Court could have even de hors those additional versions or additional averments could have arrived at a conclusion as against the accused. But, it was not done so. 9. The learned counsel for the revision petitioner also would project and put forth that P.Ws.2 and 3 were the servant maid and driver respectively, who earlier before the police, detailed and deleniated, narrated and described the incident. However at the time of deposing before the Court, they turned turtle and had a volte face, obviously and axiomatically, because they were not under the employment of the de facto complainant and as such the trial Court should have ignored those facts. 10. The learned counsel for the revision petitioner also would implore and entreat, this Court to see that, even though photos were taken by the police, the prosecution did not take sincere steps to secure those photos and mark them along with the negatives. According to the revision petitioner, the Magistrate was informed orally about the High Court’s order dated 28. 2006 even then, he proceeded to dispose of the matter without giving due opportunity to the de facto complainant as per the order of this Court. 11. Whereas the learned counsel for the respondents/accused, would by way of attempting to torpedo end pulverize the argument as put forth by the learned counsel for the revision petitioner submit that this Court while exercising its revisional jurisdiction would be reluctant, to interfere with the orders passed by the lower Court in acquitting the accused unless there is any perversity or non-application of law in analysing and understanding the evidence; here, the de facto complainant and his wife P.Ws. 1 and 11 quite antithetical to their own case, deposed before the Court, which alone actuated and accentuated, propelled and impelled the lower Court to arrive at the conclusion as against the de facto complainant, warranting no interference by this Court. 12. The learned Government advocate (Criminal side) would submit that no appeal has been preferred by the State. 13. 1 and 11 quite antithetical to their own case, deposed before the Court, which alone actuated and accentuated, propelled and impelled the lower Court to arrive at the conclusion as against the de facto complainant, warranting no interference by this Court. 12. The learned Government advocate (Criminal side) would submit that no appeal has been preferred by the State. 13. At this juncture, I would like to recollect and call-up the following decisions: (i) Bindeshwari Prasad Singh alias B.P. Singh and Others v. State of Bihar (now Jharkhand) and Another AIR 2002 SC 2907 : (2002) SCC (Crl) 1448: (2002) 6 SCC 650 : (2002) MLJ (Crl) 939 an excerpt from it would run thus at p. 942 of MLJ (Crl): “13. The instant case is not one where any such illegality was committed by the trial Court. In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not reappreciate the evidence to reach a finding different from the trial Court. In the absence of manifest illegality resulting in grave mis-carriage of justice, exercise of revisional jurisdiction in such cases is not warranted. 14. We are, therefore, satisfied that the High Court was not justified in interfering with the order of acquittal in exercise of its revisional jurisdiction at the instance of the informant. It may be that the High Court on appreciation of the evidence on record may reach a conclusion different from that of the trial Court. But that by itself is no justification for exercise of revisional jurisdiction under Section 401 of the Code of Criminal Procedure against a judgment of acquittal. We cannot say that the judgment of the trial Court in the instant case was perverse. No defect of procedure has been pointed out. There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial vitiating the trial itself…” (ii) Sathyajit Banerjee and Others v. State of W.B. and Others (2005) SCC (Cri) 276 an excerpt from it would run thus: “22. No defect of procedure has been pointed out. There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial vitiating the trial itself…” (ii) Sathyajit Banerjee and Others v. State of W.B. and Others (2005) SCC (Cri) 276 an excerpt from it would run thus: “22. The cases cited by the learned counsel show the settled legal position that the revisional jurisdiction, at the instance of the complainant has to be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice.” A plain reading of the aforesaid decisions would highlight and spotlight the fact that revisional jurisdiction should be sovereignly exercised as against the order of acquittal and only in rare cases where there is clear injustice or perversity in the order of acquittal is found exemplified as per the records, the revisional Court could interfere. 14. In such circumstances, I could see considerable force in the submission made by the learned counsel for the revision petitioner that Assistant Public Prosecutor should not have cross examined P.W.1/the de facto complainant and also P.W.11, simply on the ground that there are some additions in the depositions over and above what was there in the First Information report as well as in their Section 161 statements. 15. It is a trite proposition of law that even the evidence of witnesses, who have been treated hostile could be relied upon by the trial Court provided it would be of some use to the prosecution case. But in this case, apparently, the learned Magistrate, has not directed his attention on that. No doubt, a plain reading of the order of the learned Magistrate would exemplify and disclose that he was concentrating in picking holes in the evidence of witnesses here and there and it amounts to simply throwing the baby along with the bath water. 16. There is absolutely, no discussion on the point as to who actually caused destruction to the compound wail, etc. It is also fact that initially the complainant cited three police officers as accused, as according to him, they in collusion with other accused indulged in criminal activities as against him. 16. There is absolutely, no discussion on the point as to who actually caused destruction to the compound wail, etc. It is also fact that initially the complainant cited three police officers as accused, as according to him, they in collusion with other accused indulged in criminal activities as against him. But at the time of laying charge sheet, the names of the police officials have been dropped and even the de facto complainant did not agitate over it by approaching this Court. 17. The records would speak by itself that constantly and interminably, P.W.1 aired his grievance by filing applications before the Magistrate Court and also by approaching this Court on the ground that a fair trial was not accorded to him so as to put forth his case effectively. In that connection alone, he ultimately, approached this Court by filing Crl. O.P.No. 13531 of 2006 and in that my learned Predecessor passed an order dated 28. 2006, the operative portion of it would run thus: “7. During the course of trial, 8 witnesses have been examined. Though P.W.1 has been examined, he may continue the chief examination, if he wants to produce more materials. Learned Magistrate may receive the additional materials. Similarly the other witness, who is supporting the version of P.W.1 may also be examined. In case, there are additional materials, the learned Magistrate may proceed with the case in accordance with law. The petitioner being de facto complainant may assist the Assistant Public Prosecutor and according to the advice of his own advocate, P.W.1 may proceed with the case in accordance with law.” 18. It is therefore crystal clear that my learned Predecessor thought it fit to grant permission to P.W.1 to give further evidence even by engaging an advocate by assisting the prosecution; but that was not put into execution at all. 19. The learned counsel for the revision petitioner would submit that the purport of the order of this Court was conveyed to the Magistrate but he belittled and slighted it etc. But I am at a loss to understand as to why the revision petitioner had not chosen to file at least a memo pointing out that this Court had passed such an order and that he would produce a copy of it later. But I am at a loss to understand as to why the revision petitioner had not chosen to file at least a memo pointing out that this Court had passed such an order and that he would produce a copy of it later. For that matter, even though the accused happened to be a party before this Court in the earlier proceedings, nonetheless, they have also not conveyed the message effectively to the Magistrate. The order of this Court was passed on 28. 2006 whereas the Magistrate has passed the judgment of acquittal on 29. 2006, so to say, one month and three days afterwards. Readily, it is not known as to what transpired during that one month and three days period and that too in these days of availability of speedy communication. 20. Be that as it may, one fact is clear that this Court after hearing both sides, even before the disposal of the case by the learned Magistrate, thought that P.W.1, so to say, the de facto complainant should be given ample opportunity to conduct the case by engaging an advocate of his own choice so as to assist the prosecution, but that was not done at all. The certified copy of the memo filed before the learned Magistrate, would reveal that the Magistrate also was kept informed about the pendency of the said Criminal Original Petition before this Court. However, its disposal on 28. 2006 was not informed to the Magistrate in writing. 21. Hence, in these circumstances, I am of the considered opinion that the learned Magistrate was not justified in passing order in that matter, without giving due opportunity to the petitioner to put forth his case by engaging an advocate to assist the prosecution. Since this Court is a revisional Court, I have decided to remit the matter back to the learned Magistrate and I do not want to express any opinion on the merits of the case as it would in one way or other prejudice either of the parties. 22. The learned counsel for the accused would submit that some of the accused persons are in U.K. and the date of the alleged offence was 30.4.2004 and in such a case, they would find it difficult to come back to India. 23. 22. The learned counsel for the accused would submit that some of the accused persons are in U.K. and the date of the alleged offence was 30.4.2004 and in such a case, they would find it difficult to come back to India. 23. I would make it clear that the respondent/accused could file an application under Section 205 of the Code of Criminal Procedure and the same shall be considered by the learned Magistrate for exempting their appearance during hearing dates except at the time of examination as per Section 313 of the Code of Criminal Procedure. 24. Accordingly, the order of the lower Court is set aside and the matter is remitted back to the learned Magistrate for giving further opportunity to P.W.1 to engage an advocate of his choice to assist the prosecution and adduce additional evidence. I also make it clear that this Court is not ordering retrial but it is only for adducing additional evidence. Accordingly, the learned Magistrate shall dispose of the matter fully as per law, within a period of three months from the date of receipt of a copy of this order. 25. With the above direction, this criminal revision is allowed.