LAL KISHORE JHA v.

STATE OF JHARKHAND & ANR. (SLP (Crl.) No. 4848 of 2011)

MAY 2, 2011 [Aftab Alam and R.M. Lodha, JJ.]

[2011] 5 SCR 1015

The following Order of the Court was delivered

O R D E R

1. Delay condoned.

2. Heard Mr. Nagendra Rai, learned senior advocate, appearing for the  

petitioner.

3. The petitioner is convicted under Sections 494 and 498-A of the Penal  

Code and is sentenced to rigorous imprisonment for two years on each count.  

The sentences are directed to run concurrently.

4. Mr. Rai submitted that the petitioner was acquitted by the appellate  

court  and the High Court,  while  disposing of  the revision filed against  the  

order of acquittal, exceeded its jurisdiction in passing an order that resulted  

into  the  conviction  of  the  petitioner.  He  submitted  that  in  exercise  of  the  

powers under Section 401 of the Code of Criminal Procedure, 1973, an order  

of acquittal cannot be converted into an order of conviction and what the High  

Court could, at best do was to order a retrial of the petitioner. In support of the  

submission,  he  relied  upon  the  decisions  of  this  Court  in  Vimal  Singh  v.  

Khuman Singh & Anr.,  (1998) 7 SCC 223 and  Mahendra Pratap Singh v.  

Sarju Singh, AIR 1968 SC 707.

5. We find no merit in the submission of Mr. Nagendra Rai and we are  

satisfied that the decisions relied upon by him have no application to the facts  

of this case. All that the High Court has done is to set aside the order passed

by  the  appellate  court  and  restore  the  order  of  conviction  and  sentence  

passed by the trial court.

6.  At  this  stage,  it  will  be useful  to  take a brief  look at  the facts  and  

circumstances that led the High Court to interfere in the matter. While the trial  

was going on, the accused purported to enter into some sort of a settlement  

with the complainant (his wife). In terms of the settlement, he accepted to  

take her (the complainant) back at his house even though he had taken a  

second wife in the meanwhile. Hence, when the complainant was examined  

before  the  trial  court  she  did  not  press  the  charges  but  expressed  her  

willingness to live with her husband and his second wife. Later on, however,  

before the conclusion of  the trial  she filed a petition before the trial  court  

stating  that  the  accused  (the  husband)  had  breached  the  settlement  and  

thrown her out from his house.

7. In those circumstances, the trial court recalled her for re examination  

as a court witness under Section 311 of the Cr.P.C. On her examination as a  

court  witness,  she  fully  supported  the  allegations  made  by  her  in  the  

complaint. Eventually, the trial court convicted the petitioner under Sections  

494 and 498-A of the Penal Code.

8. In appeal, the appellate court held that the order passed by the trial  

court, recalling the complainant for examination as a court witness was bad  

and invalid  and her  evidence  as  a  court  witness  could  not  be  taken  into  

account for recording the finding of guilt against the petitioner.

9. In revision, the High Court set aside the order of the appellate court on  

this score and consequently the order of the trial court stood restored.

10. We are fully satisfied that in the facts and circumstances of the case,  

the High Court took the correct view of the matter and its order cannot be said  

to be excess of the revisional jurisdiction under Sections 397 and 401 of the  

Cr.P.C.

11. We find no merit in the special leave petition. It is dismissed.