Court No. - 34
Case :- CRIMINAL REVISION No. - 285 of 1998 Revisionist :- Bhagwan Singh Opposite Party :- State Of U.P. And Others Counsel for Revisionist :- Akhilesh Srivastava Counsel for Opposite Party :- Govt. Advocate,Nazrul Islam Jafri
Hon'ble Sudhir Agarwal,J.
1. This revision is surviving only in respect of accused-Respondent 2 since Kishanpal (Respondent-3), as per report of Chief Judicial Magistrate, Aligarh dated 21.03.2017, has already died and to that extent revision has abated.
2. Heard Sri Akhilesh Srivastava, learned counsel for revisionists and perused the record.
3. This criminal revision under Section 397/401 Cr.P.C., has been filed aggrieved by order dated 12.02.1998 passed by XIIth Additional District and Sessions Judge, Aligarh in Session Trial No. 416 of 1993, whereby Respondents-2 and 3 were acquitted from the offence under Section 307 IPC.
4. It is contended that there was eye witness yet Court below has disbelieved the same but I find that there were two witnesses of fact claimed to be eye witnesses, i.e., PWs-1 and 2. With respect to PW-2 Court below has found that he appears to be a tutored witness and sole testimony of PW-1 has not been found reliable on account of proven enmity between parties.
5. Court below has recorded finding of fact and disbelieved the evidence. It cannot be said that reasons given by Court below are perverse or contrary to law, hence merely because a second opinion can be formed, that cannot be a ground for interference in a case of acquittal.
6. Even otherwise, scope of judicial review in exercise of revisional jurisdiction is not like an appeal. It is a supervisory jurisdiction which is exercised by the Court to correct the manifest error in the orders of subordinate courts but should not be exercised in a manner so as to turn the Revisional court in a Court of Appeal. The legislature has differently made provisions for appeal and revision and the distinction of two jurisdictions has to be maintained.
7. Construing old Section 439 of Criminal Procedure Code, 1898, pertaining to revisional jurisdiction, the Court in D. Stephens Vs. Nosibolla, AIR 1951 Sc 196 said that revisional jurisdiction under Section 439 of the Code ought not to be exercised lightly particularly when it is invoked by private complainant against an order of acquittal which could have been appealed against by the Government under Section 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. In other words, the revisional jurisdiction of the High Court cannot be invoked merely because the lower court has taken a wrong view of law or misappreciated the evidence on record.
8. In K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, AIR 1962 SC 1788 it was held that revisional jurisdiction should be exercised by the High Court in exceptional cases only when there is some glaring defect in the procedure or a manifest error on a point of law resulting in flagrant miscarriage of justice. However, this was also a case in which revisional jurisdiction was invoked against an order of acquittal. If the Court lacks jurisdiction or has excluded evidence which was admissible or relied on inadmissible evidence or material evidence has been overlooked etc., then only this Court would be justified in exercising revisional power and not otherwise.
9. The above view has been reiterated in Mahendra Pratap Singh Vs. Sarju Singh, AIR 1968 SC 707; Khetrabasi Samal Vs. State of Orissa, AIR 1970 SC 272; Satyendra Nath Dutta and another Vs.
Ram Narain, AIR 1975 SC 580; Jagannath Choudhary and others Vs. Ramayan Singh and another, 2002(5) SCC 659; and, Johar and others Vs. Mandal Prasad and another, 2008 Cr.L.J. 1627 (S.C.).
10. In Duli Chand Vs. Delhi Administration, 1975(4) SCC 649 the Court reminded that jurisdiction of High Court in criminal revision is severely restricted and it cannot embark upon a re-appreciation of evidence. While exercising supervisory jurisdiction in revision the Court would be justified in refusing to re-appreciate evidence for determining whether the concurrent findings of fact reached by learned Magistrate and Sessions Judge was correct.
11. In Pathumma and another Vs. Muhammad, 1986(2) SCC 585 reiterating the above view the Court said that in revisional jurisdiction the High Court would not be justified in substituting its own view for that of a Magistrate on a question of fact.
12. In Munna Devi Vs. State of Rajasthan and another, 2001(9) SCC 631 the Court said:
“The revision power under the Code of Criminal procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the First Information Report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged.”
13. In Ram Briksh Singh and others Vs. Ambika Yadav and another, 2004(7) SCC 665, in a matter again arising from the judgment of acquittal, the revisional power of High Court was examined and the Court said:
“4. Sections 397 to 401 of the Code are group of sections conferring higher and superior courts a sort of supervisory jurisdiction. These powers are required to be exercised sparingly. Though the jurisdiction under Section 401 cannot be invoked to only correct wrong appreciation of evidence and the High Court is not required to act as a court of appeal but at the same time, it is the duty of the court to correct manifest illegality resulting in gross miscarriage of justice.”
14. Moreso, if an appeal is filed against acquittal despite the fact that plenary power of Appellate Court to review the whole evidence on which order of acquittal is founded has been recognized by a Three Judge Bench of Supreme Court in Shivaji Sahebrao Bobade and another vs. State of Maharashtra, AIR 1973 SC 2622 and it has been followed in Girija Prasad (Dead) by L.Rs. vs. State of Madhya Pradesh, 2007(7) SCC 625 and State of Goa vs. Sanjay Thakran, 2007(3) SCC 755, still Court has held that in the matter of acquittal there are certain other principles which are to be kept in mind.
15. In Chandrappa vs. State of Karnataka, 2007(4) SCC 415 Court said that an Appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the Trial Court.
16. Further in State of Rajasthan vs. Shera Ram alias Vishnu Dutta, 2012(1) SCC 602 Court said that High Court is required to see that unless there are substantial and compelling circumstances, the order of acquittal is not required to be reversed in appeal. All these authorities have been referred and followed in Shivasharanappa and others vs. State of Karnatapa and others, 2013(5) SCC 705.
17. In the present case above principles are not only applicable in entirety but makes the jurisdiction of this Court further narrower for the reason that here the judgment of acquittal has been challenged in revision where the scope of judicial review is further limited as already discussed above and not as wide as that of Appellate Court. Therefore, unless there is a patent and culpable illegality justifying interference in judgment of acquittal, this Court shall not and should not interfere in criminal revision.
18. The revision is dismissed. Interim order, if any, stands vacated
19. Certify this judgment to the lower Court immediately.
Order Date :- 27.09.2019 AK