GANESHA Vs SHARANAPPA
Bench: CHANDRAMAULI KR. PRASAD,KURIAN JOSEPH
Case number: Crl.A. No.-001948-001948 / 2013
Diary number: 3305 / 2009
Advocates: MANJEET KIRPAL Vs
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REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1948 OF 2013 (@ SPECIAL LEAVE PETITION (Crl.) No. 4531 of 2009)
GANESHA ..… APPELLANT VERSUS
SHARANAPPA & ANR. ..... RESPONDENTS
J U D G M E N T
CHANDRAMAULI KR. PRASAD, J.
Petitioner, besides three other accused, was
put on trial for offence under Section 341, 323,
324 and 504 read with Section 34 of the Indian
Penal Code. Judicial Magistrate, First Class,
Yadgiri Taluk, Gulbarga District, Karnataka, by its
judgment and order dated 14th of September, 2006
passed in CC No. 355 of 2006, acquitted them of all
the charges.
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Aggrieved by the aforesaid, the informant
preferred Criminal Revision Petition No. 147 of
2007 and the High Court, by the impugned judgment
and order dated 5th of August, 2008 maintained the
order of acquittal of all accused persons,
excepting accused no. 3, Ganesha who has been held
guilty for the offence punishable under Section 324
of the Indian Penal Code and sentenced to undergo
simple imprisonment for a period of six months and
also to pay a fine of Rs.5,000/-, and in default
of payment of fine, to undergo further simple
imprisonment for a period of three months.
It is against this order that Ganesha has
preferred this special leave petition.
Leave granted.
The prosecution was set in motion on the basis
of a report given by the informant, Sharanappa,
inter alia, alleging that he made a protest when he
saw the accused persons grazing their cattle in his
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land and thereby damaging the mulberry crop. It
was alleged that Ganesha, the appellant herein
assaulted the informant with a Badige (stick) which
caused injury near his left eye. The rest of the
prosecution story is not being narrated as the
accused who have allegedly participated in that
have been acquitted and we are not concerned with
that in the present appeal. The trial court, on
appraisal of the evidence, came to the conclusion
that the prosecution has not been able to prove its
case beyond all reasonable doubt and, accordingly,
acquitted all the accused. However, in revision,
the High Court re-appraised the evidence and found
the reasoning assigned by the trial court to be
totally perverse and contrary to the evidence on
record. The High Court relied on the evidence of
Sharanappa, the informant (PW-2), Maremma (PW-4),
Sujatha (PW-5) and Hussainappa (PW-6), who claimed
to be the eye-witnesses of the occurrence. The
High Court found Maremma (PW-4) and Hussainappa
(PW-6) to be the independent eye-witnesses and
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reliable. The High Court further observed that the
evidence of Dr. Surekha (PW-1), who examined the
injured and gave the wound certificate (Exhibit 2)
corroborated the case of the prosecution.
Accordingly, the High Court set aside the order of
acquittal of the present appellant and convicted
him as above. While doing so, the High Court
observed as follows:
“17. In my view, the aforesaid reasoning of the trial court is totally perverse and contrary to the evidence on record. We have seen from the evidence of P.Ws. 2, 4, 5 and 6 that all of them have come out successfully in their cross- examination and all of them have spoken to the fact of A-3 assaulting P.W. 2 with a stick near his left eye and the other accused persons catching hold of P.W.2. Furthermore, it is also clear from the evidence of P.Ws. 2 and 5 that the incident happened in the land of the complainant when the cattle belonging to the accused went to the land of the complainant for grazing the crop. Therefore, no doubt arises as to the place of incident.”
Mr. Akshat Shrivastav, learned counsel
appearing on behalf of the appellant raises a very
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short point. He submits that the High Court in
revision could not convert a finding of acquittal
into one of conviction and at most, while
exercising the revisional jurisdiction, could
direct for re-trial. Mr. V.N. Raghupathy, learned
counsel appearing on behalf of the respondents,
however, submits that the High Court having found
the reasoning assigned by the trial court to be
totally perverse and contrary to the evidence on
record is not precluded from setting aside the
order of acquittal and convicting the accused for
the offence charged.
Having appreciated the rival submissions we
find substance in the submission of learned counsel
for the appellant. Section 401 of the Code of
Criminal Procedure, for short ‘the Code’, confers
power of revision to the High Court, same reads
as follows:
“401. High Court’s powers of revision.- (1) In the case of any proceeding the record of which has been called for by itself or which
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otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392.
(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.
(3) Nothing in this section shall be deemed to authorise a High court to convert a finding of acquittal into one of conviction.
(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.
(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.”
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From a plain reading of sub-section (1) of
Section 401 of the Code it is evident that the High
Court, while exercising the powers of revision, can
exercise any of the powers conferred on a court of
appeal including the power under Section 386 of the
Code, relevant portion whereof reads as follows:
“386. Powers of the Appellate Court. – After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may –
(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re- tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;
xxx xxx xxx”
Section 386(a) thus authorizes the appellate
court to reverse an order of acquittal, find the
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accused guilty and pass sentence on the person
found guilty. However, sub-section (3) of Section
401 of the Code contemplates that the power of
revision does not authorize a High Court to convert
a finding of acquittal into one of conviction. On
the face of it, the High Court while exercising the
powers of revision can exercise all those powers
which have been conferred on the court of appeal
under Section 386 of the Code but, in view of sub
section (3) of Section 401 of the Code, while
exercising such power, cannot convert a finding of
acquittal into one of conviction.
However, in a case where the finding of
acquittal is recorded on account of misreading of
evidence or non-consideration of evidence or
perverse appreciation of evidence, nothing prevents
the High Court from setting aside the order of
acquittal at the instance of the informant in
revision and directing fresh disposal on merit by
the trial court. In the event of such direction,
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the trial court shall be obliged to re-appraise the
evidence in light of the observation of the
revisional court and take an independent view
uninfluenced by any of the observations of the
revisional court on the merit of the case. By way
of abundant caution, we may herein observe that
interference with the order of acquittal in
revision is called for only in cases where there is
manifest error of law or procedure and in those
exceptional cases in which it is found that the
order of acquittal suffers from glaring illegality,
resulting into miscarriage of justice. The High
Court may also interfere in those cases of
acquittal caused by shutting out the evidence which
otherwise ought to have been considered or where
the material evidence which clinches the issue has
been overlooked. In such an exceptional case, the
High Court in revision can set aside an order of
acquittal but it cannot convert an order of
acquittal into that of an order of conviction. The
only course left to the High Court in such
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exceptional cases is to order re-trial. The view,
which we have taken finds support from a decision
of this Court in Bindeshwari Prasad Singh vs. State of Bihar (2002) 6 SCC 650, in which it has been held as follows:
“12.………Sub-section (3) of Section 401 in terms provides that nothing in Section 401 shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction. The aforesaid sub- section, which places a limitation on the powers of the revisional court, prohibiting it from converting a finding of acquittal into one of conviction, is itself indicative of the nature and extent of the revisional power conferred by Section 401 of the Code of Criminal Procedure. If the High Court could not convert a finding of acquittal into one of conviction directly, it could not do so indirectly by the method of ordering a retrial. It is well settled by a catena of decisions of this Court that the High Court will ordinarily not interfere in revision with an order of acquittal except in exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice. The High Court will not be justified in interfering with an order of acquittal merely because the trial court has
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taken a wrong view of the law or has erred in appreciation of evidence. It is neither possible nor advisable to make an exhaustive list of circumstances in which exercise of revisional jurisdiction may be justified, but decisions of this Court have laid down the parameters of exercise of revisional jurisdiction by the High Court under Section 401 of the Code of Criminal Procedure in an appeal against acquittal by a private party.”
In the present case, the High Court in our
opinion, rightly came to the conclusion that it is
one of the exceptional cases as the finding of
acquittal is on a total misreading and perverse
appreciation of evidence. On the face of it, the
High Court rightly set aside the order of acquittal
but it gravely erred in converting the order of
acquittal into that of conviction, instead of
directing re-hearing by the trial court.
Ordinarily we would have set aside the order of the
revisional court to the extent aforesaid and
directed for re-hearing by the trial court, but
taking into account the nature of offence, at such
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a distance of time we would not like to charter
that course.
Before we part with the case, we may observe a
common error creeping in many of the judgments
including the present one. No distinction is made
while using the words ‘informant’ and
‘complainant’. In many of the judgments, the person
giving the report under Section 154 of the Code is
described as the ‘complainant’ or the ‘de facto
complainant’ instead of ‘informant’, assuming that
the State is the complainant. These are not words
of literature. In a case registered under Section
154 of the Code, the State is the prosecutor and
the person whose information is the cause for
lodging the report is the informant. This is
obvious from sub-section (2) of Section 154 of the
Code which, inter alia, provides for giving a copy
of the information to the ‘informant’ and not to
the ‘complainant’. However the complainant is the
person who lodges the complaint. The word
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‘complaint’ is defined under Section 2(d) of the
Code to mean any allegation made orally or in
writing to a Magistrate and the person who makes
the allegation is the complainant, which would be
evident from Section 200 of the Code, which
provides for examination of the complainant in a
complaint-case. Therefore, these words carry
different meanings and are not interchangeable. In
short, the person giving information, which leads
to lodging of the report under Section 154 of the
Code is the informant and the person who files the
complaint is the complainant.
In the result, we allow this appeal, set aside
the order of the High Court and decline to direct
re-hearing by the trial court.
........................J [CHANDRAMAULI KR. PRASAD]
.......................J [KURIAN JOSEPH]
NEW DELHI NOVEMBER 19, 2013
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