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2020 DIGILAW 621 (JK)

Gun Manufacturers Association v. State

2020-11-25

SANJAY DHAR

body2020
Judgment Sanjay Dhar, J.—Through the medium of instant revision petition filed under Sections 435 to 439 of J&K Cr.P.C, the petitioner has called into question the judgment dated 31.01.2014 passed by the learned Principal Sessions Judge, Jammu (hereinafter referred to as the ‘trial Court’) in the challan titled State vs. Vinay Kumar Verma and another (File No.50/Sessions) for offences under Sections 420/467/468/471 RPC. 2. The petitioner claims to be a duly registered Gun Manufacturers Association which is entrusted in pursuing the cases of illegal arms manufacturing. According to the petitioner, the arms manufacturing company M/S Himalaya Arms Company is being run by respondent Nos. 3 and 4 herein on the basis of a fake and forged manufacturing licence. The petitioner has given details of the FIRs pertaining to forgery of gun manufacturing licences which includes FIR No. 3/2010 registered with Police Station Gangyal, Jammu out of which the impugned judgment has arisen. 3. The petitioner has challenged the impugned judgment whereby respondent Nos. 3 and 4 herein have been acquitted of the charges for commission of offences under Sections 420/467/468/471 RPC on the grounds that the learned trial Court has overlooked the evidence on record; that the investigation of the case has been conducted in a shabby manner; that the learned trial Court has not correctly appreciated the evidence on record; that vide order dated 4.01.2013 passed by this Court in OWP No. 926/2012 titled M/S Surat Singh vs. Union of India and others, the Court had made an observation that the gun manufacturing licence of the firm belonging to respondent No3 is forged and fabricated. 4. Learned counsel for respondent Nos. 3 and 4 has raised a preliminary objection with regard to the maintainability of the instant revision petition on the ground that the State has not chosen to file an appeal against the impugned judgment of acquittal and even the complainant/informant has not chosen to do so. According to the learned counsel, petitioner-association was not even a prosecution witness in the challan, that was subject matter of the impugned judgment, therefore, it cannot maintain the instant revision petition. 5. I have heard learned counsel for the parties and perused the record of the case. 6. According to the learned counsel, petitioner-association was not even a prosecution witness in the challan, that was subject matter of the impugned judgment, therefore, it cannot maintain the instant revision petition. 5. I have heard learned counsel for the parties and perused the record of the case. 6. A perusal of the record shows that FIR No. 3/2010 for offences under Sections 420/467/468/471 RPC was registered with the Police Station, Gangyal, Jammu on the basis of a written complaint lodged by PW Suram Chand wherein it was alleged that he had come to know that a person namely Vinay Verma (petitioner herein), a resident of Trikuta Nagar Jammu in connivance with some other persons was running a gun manufacturing factory under the name and style of ‘Himalay Arms Company’ on the basis of a licence issued in the name of his father. It was further alleged that the aforenamed person had prepared forged documents by affixing thumb impression of his father on the same thereby committing fraud. Accordingly, the matter was investigated by the police and ultimately offences under Sections 420/467/468/471 RPC were found established against respondent Nos. 3 and 4 and a charge-sheet was laid before the trial Court. The learned trial Court, after recording the statements of five, out of fifteen witnesses cited in the charge-sheet, closed the evidence of the prosecution and acquitted the accused on the ground that there was no evidence to connect the accused with the alleged crime. 7. Before proceeding to examine the merits of the case, we need to deal with the preliminary objection with regard to the maintainability of the revision petition. 8. Provisions contained in Section 417 of J&K Cr.P.C show that it is the primary responsibility of the State to file an appeal against the judgment of acquittal and in case the judgment of acquittal is passed in a case instituted upon a complaint, the appeal can be filed by the complainant subject to grant of leave by the High Court. Thus, statutory right to file an appeal in a case instituted upon a police challan is the sole prerogative of the State. Even though, under the Central Cr.P.C, Section 378, a right is given to a victim to file an appeal against the judgment of acquittal, yet there is no such corresponding provision in the J&K Cr.P.C. 9. Thus, statutory right to file an appeal in a case instituted upon a police challan is the sole prerogative of the State. Even though, under the Central Cr.P.C, Section 378, a right is given to a victim to file an appeal against the judgment of acquittal, yet there is no such corresponding provision in the J&K Cr.P.C. 9. The petitioner in the instant case has invoked the revisional jurisdiction of this Court under Section 435 & 439 of J&K Cr.P.C. Normally, no criminal revision in respect of an order which is appealable at the instance of the State could/should be entertained. However, the High Court, in exercise of its powers under Section 435 of J&K Cr.P.C, is vested with the jurisdiction to call for and examine the record of any proceedings before inferior criminal court situate within its local jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. 10. The Supreme Court in the case of K. Chinnaswamy Reddy vs. State of A.P. and another, 1963 3 SCR 412 , after reviewing the earlier decisions, prescribed the extent of jurisdiction of the High Court in the matter of interfering in revision against an order of acquittal in the following manner: “ 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 a. 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 on 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 on 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 interfering 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)”. 11. The above principles have been reiterated by the Supreme Court in the cases of Mahendra Pratap Singh vs. Sarju Singh and another, AIR 1968 SC 707 . 12. The aforequoted legal position on the issue makes it clear that High Court would interfere with a judgment of an inferior Court only in the circumstances enumerated by the Supreme Court in K. Chinnaswamy Reddy’s case (supra). 13. Adverting to the instant case, a perusal of the trial Court record shows that the person, on the basis of whose report the challan against the accused was laid before the trial Court, has categorically stated in his statement before the trial Court that his father had given the gun manufacturing licence to the accused as there was an agreement executed between complainant’s father and the accused whereby 5% share of profits was to be set aside in favour of father of the complainant and the balance amount was to be retained by the accused. He has further stated that after receiving a sum of Rs.36,000/-, the accused stopped making further payments, which prompted him to lodge a report against them. In his cross-examination, the complainant has admitted that due to some misunderstanding, he had filed a report against the accused and after lodging of the report, he received further sums from the accused. The other witnesses recorded in the case have also not supported the case of the prosecution and, in fact, one of the witnesses to the alleged forged documents, PW Rakesh Kumar has stated that father of the informant has executed various documents regarding the partnership business in his presence. Thus, the star witness of the prosecution and other witnesses examined in the case did not even remotely connect the accused/respondents No.3 and 4 to the alleged crime. 14. In the face of aforesaid nature of evidence on record, there was no option for the trial Court, but to acquit the accused. Thus, the instant case does not fall in the category of cases where any material evidence has been overlooked by the trial Court or where the trial Court has shut out the evidence which the prosecution wished to produce. The instant case does not appear to be of exceptional nature where this Court would exercise its revisional powers. 15. Apart from the above, the instant revision petition has been filed by an association which is neither the complainant nor a prosecution witness in the instant case. A criminal revision petition cannot be treated as a public interest litigation where anybody and everybody can come before the Court to agitate their grievances against the order/judgment passed by the trial Court. The petition is not maintainable on this ground also. 16. For the foregoing reasons, the instant petition is held to be not maintainable and even on merits, this Court does not find the instant case to be of an exceptional nature warranting interference by this Court in exercise of its revisional jurisdiction. The petition is dismissed accordingly.