PETITIONER:
KAPTAN SINGH & ORS.
Vs.
RESPONDENT:
STATE OF M.P. & ANR.
DATE OF JUDGMENT: 24/04/1997
BENCH:
M.K. MUKHERJEE, S.P. KURDUKAR
ACT
HEADNOTE
JUDGMENT
JUDGMENTM.K. MUKHERJEE, J.
Leave granted.
The six appellants before us were arraigned before the Sessions Judge, Morena for rioting and the murder of Baijnath in the night between June 5 &6, 1983. The trial Judge acquitted them of both the charges; and aggrieved thereby the respondent No.2, who was the grandfather of the deceased, sent a registered letter to the High Court. That letter was registered as a criminal revision and notice was issued to the appellants. After hearing the parties the High Court allowed the revision petition, set aside the acquittal of the appellants and remanded the matter to the trial Court to pass a fresh judgment after hearing the parties or, if need be, to hold a retrial. The above judgment of the High Court is under challenge in this appeal.
In assailing the judgment of the High Court Mr. Lalit, the learned counsel appearing for the appellants submitted that the High Court exceeded its revisional jurisdiction under Section 401 Cr. P.C. in that it reappraised the entire evidence from its own point of view and reached inferences contrary to those of the trial Court on almost every point, which was legally impermissible. In support of hes contention he relied upon the judgments of this Court in Chinnaswamy vs. State of Andhra Pradesh (AIR 1962 S.C 1788), Mahendra Pratap vs, Sarjn Singh (AIR 1968 S.C. 707), Khetra Basi vs. state of Orissa (AIR 1970 S.C. 272) and P.N.J. Raju vs. B.P. Appadn (AIR 1975 S.C. 1854 ), Wherein the scope and extent of the revisional jurisdiction of the High Court in dealing with an order of acquittal have been dealt with. In Chinnaswamy (supra) this Court held that though it was open to the High Court to set aside an order of acquittal even at the instance of the private parties the revisional jurisdiction should be exercised only in exceptional cases when there was some glaring defect in the procedure or there was a manifest error on a point of law and consequently there had been a flagrant miscarriage of justice. This Court Pointed out that it was not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies but indicated some cases which would justify the High Court to Interfere with an order of acquittal in revision. The cases so indicated are: 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 as not admissible 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 an offence. Which is invalid under law. In the other Cases referred to above this Court reiterated the principles laid down in Chinnaswamy (supra) and observed that the revisional jurisdiction when invoked by a private complainant against all order of acquittal ought not to be exercised lightly and that it could be exercised only in exceptional case where the interests of public justice required interference for the correction of a manifest illegality or the prevention of a gross miscarriage of justice.
Apart from the cases relied upon by Mr. Lalit, we find that in Ayodhya vs. Ram Sumer Singh (AIR 1981 SC 1415) a three judge Bench of this Court dealt with the power exercisable under Section 401 Cr. P.C. In that case the high Court, after referring to Chinnaswamy (supra), had said:
" In the instant case, we find that
this is a case of non-application
of mind on the part of the Court
below. The Probative value of the
First Information Report (Ex.KA 19)
has been entirely ignored. The
individual testimony of the eye
witnesses has not been discussed
and their reliable testimony has
been ignored, from which it
follows that material evidence has
not been considered and it has been
overlooked. The entire Judgment is
full of inconsistencies. The Court
below has misquoted the evidence at
some places, for example, while
dealing with the copy of statement
(Ex.KA 18). The Judgment consists
of faulty reasoning and lack of
judicial approach. Accepted canons
for appreciating evidence have been
thrown to the wind. The conclusions
on the question of motive are
against the weight of overwhelming
evidence in the case. In our
opinion, the view expressed by the
court below has resulted in grave
miscarriage of justice so far as
the opposite parties Uma Shanker,
Girja Shanker, Gauri Shanker,
Achhaibar, Jhabbar, Bansu, Ram
Katul, Ayodhya Dube and Vindhyachal
are concerned. The above, in our
opinion, are exceptional
circumstances which compel us to
order retrial of the aforesaid
opposite parties."
In upholding the above order of the High Court this Court observed as under:
"In our view the High Court has
given adequate reasons for
interfering with the acquittal and
ordering a retrial of the
appellants. We may add that the
High Court also expressed the view
that the instances mentioned by
this Court in Chinnaswamy vs. State
of Andhra Pradesh as justifying
interference with orders of
acquittal in the exercise of
revisional powers were
illustrative and not exhaustive. We
agree with the view expressed by
the High Court and we only wish to
say that the Criminal Justice
System does not admit of ’Pigeon
holing’ . If and the law do not
fall neatly into slots, When a
Court starts laying down rules
enumerated (1),(2),(3),(4) or
(a),(b),(c),(d), it is arranging
for itself traps and pitfalls.
Categories, classifications and
compartments, which statute does
not mention, all tend to make law
less flexible, less sensible and
less just."
From a conspectus of the above decisions it follows that the revisional power of the High Court while sitting in judgment over and 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. Read in the context of the above principle of law we have no hesitation in concluding that the judgment of the trial Court in the instant case is patently wrong and it has caused grave miscarriage of justice. The High Court was therefore fully justified in setting aside the order of acquittal. From the judgment of the trial Court we find that one of the grounds that largely weighed with it for acquitting the appellants was that an Inspector of CID who had taken up the investigation of the case and was examined by the defence (D.W.3) testified that during his investigation he hound that the story as made out by the prosecution was not true and on the Contrary the plea of the accused (appellants) that in the night of the incident a dacoity with murder took place in the house of Baijnath by unknown criminals and the appellants were implicated falsely was true . It is trite that result of investigation can never be legal evidence; and this Court in Vijender etc. Vs. State of Delhi (JT 1977 (3) SC 131), made the following comments while comments while dealing with this issue:
"The reliance of the trial Judge on
the result of investigation to base
is findings is again patently
wrong. If the observation of the
trial judge in this regard is taken
to its logical conclusion it would
mean that a finding of guilt can be
recorded against an accused without
a trial, relying solely upon the
police report submitted under
Section 173 Cr.P.C., which is the
outcome of an investigation. The
result of investigation under
chapter XII of the Criminal
procedure code is a conclusion that
an investigating officer draws on
the basis of materials collected
during investigating officer draws
on the basis of materials collected
during investigation and such
conclusion can only form the basis
of a competent Court to take
cognizance thereupon under Section
190(1) (b) cr. p. c. and to proceed
with the case for trial, where the
materials collected during
investigation are to be translated
into legal evidence, The trial
conclusion solely on the evidence
adduced during the trial; and it
cannot rely on the investigation or
the result thereof. Since this is
law, elementary principle of
criminal law, we need not dilate on
this point ."
The High Court was, therefore, fully justified in commenting upon the trial court’s impermissible and undue reliance on the evidence of DW 3 and , for that matter, the result of his investigation . Incidentally it may be mentioned that ignoring the report of investigation submitted by the Inspector the Magistrate took cognizance of the offences alleged against the appellants and committed the case to the court of Session. There are other patent infirmities in the judgment of the trial Court to which the High Court has adverted but in case any reason given by us for this comment of ours creates an unconscious impression upon the trial Court, we refrain from doing so.
We, therefore, find no merit in this appeal and dismiss it. Before parting with this judgment we would like to observe that in complying with the directions of the High Court, the trial Court should not be in any way influenced by any observation made by the High Court touching the merits of the case.