VERY IMPORTANT POINT
In a private complainant s revision u/s 401 Cr.P.C. 1973 against acquittal High Court was not justified in reversing acquittal by directing Trial Court for writing out a fresh judgment by giving proper judicial mind to the evidence on record. Such a direction is an unjustified significant departure from the regular norm in the matter of pronouncement of judgment.

Headnote:Criminal Procedure Code, 1973-Section 401-High Court s power of revision (= Section 439 of old Cr.P.C. 1898)-Criminal trial for offences u/Sections 302/34 IPC-Trial Court acquitted the accused-Revision against acquittal by private complainant-High Court reversed the acquittal with direction "the matter is sent back to the court below for writing a fresh judgment by giving proper judicial mind to the evidence on record"-Whether sustainable in law? (No, as this is an justified significant departure in the matter of pronouncement of judgment)-Difference between revision and appeal stated-Case law referred-Appeal allowed.
       Held : Writing of a fresh judgment by giving proper judicial mind to the evidence on record has been the observation of the High Court - and what would be the consequences - would the learned trial Judge be ever able to apply the judicial mind in the matter of dispensation of justice - We are afraid, our answer cannot but be in the negative. (Para 6)
       The main question which the High Court has to consider in an application in revision is whether substantial justice has been done. If however, the same has been an appeal, the applicant would be entitled to demand an adjudication upon all questions of fact or law which he wishes to raise, but in revision the only question is whether the court should interfere in the interests of justice. Where the court concerned does not appear to have committed any illegality or material irregularity or impropriety in passing the impugned judgment and order, the revision cannot succeed. If the impugned order apparently is presentable, without any such infirmity which may render it completely perverse or unacceptable and when there is no failure of justice, interfere cannot be had in exercise of revisional jurisdiction. (Para 9)
       The High Court possesses a general power of superintendence over the actions of courts subordinate to it. On its administrative side, the power is known as the power of superintendence. On the judicial side, it is known as the duty of revision. The High Court can at any stage even on its own motion, if it so desires, and certainly when illegalities or irregularities resulting in injustice are brought to its notice call for the records and examine them. This right of the High Court is as much a part of the administration of justice as its duty to hear appeals and revisions and interlocutory applications - so also its right to exercise its powers of administrative superintendence. Though however, the jurisdictional sweep of the process of the High Court, however, under the provisions of Section 401 is very much circumscribed, as noticed hereinbefore. Having regard to the aforesaid, we do feel it expedient to record that in the contextual facts presently under consideration before this Court, the High Court cannot but be said to have exceeded its revisional jurisdiction in setting aside the order of acquittal. (Paras 11 & 12)
       In any event, writing of a fresh judgment as directed by the Court is rather a significant departure in the normal disposal of revisional applications. Opportunities have been given for further argument but would that by itself tilt and scale - this aspect of the matter has already been noticed earlier, as such we need not dilate thereon excepting recording that an extremely significant departure from the normal form of Court orders stands challenged in this Court. We have had the opportunity of going through the judgment of the learned Sessions Judge and paragraph 30 thereof has already been noticed in extenso and a perusal thereof would not justify the comments of the learned Single Judge of the High Court neither it would be said to be within the jurisdiction of the High Court to pass the order impugned in exercise of revisional jurisdiction under Section 401 of the Code. In the view as above, the order impugned cannot be sustained and as such the appeal is allowed. The order impugned is set aside and the order of the learned Sessions Judge stands restored. The bail bonds, if any, stand discharged. (Paras 13, 14 & 15)

ORDER

Banerjee, J.-Leave granted.

2. A significant departure from the regular norm in the matter of pronouncement of judgment is the key factor in the present appeal. Mentioned hereinbefore a significant departure in the matter of pronouncement of judgment - but what is it so significant so as to warrant interference of this Court under Article 136 of the Constitution - Before adverting to the same, however, a brief factual reference would be convenient and necessary for appreciation of such a departure - against an order of acquittal recorded by 3rd Additional Sessions Judge, Muzaffarpur in Sessions Trial No. 258 of 1992, a revisional application stands filed before the High Court of Judicature at Patna recording therein that on appreciation of evidence the order, as passed by the learned Sessions Judge, was totally perverse on the face of the judgment. It is on the basis aforesaid, the learned Single Judge in the revisional application in his judgment (impugned before this Court) in three different settings in the body of the judgment stated :

(a) "Be it what it may, I am not going into the merit of the case in depth but on perusal of the impuged judgment particularly paragraph 30 and the materials on records, I also hold that reasonings of acquittal given by the learned Sessions Judge are definitely not proper and justifiable on the face of it and if not justifiable then it may go to the extent of perversity."

(b) "But in the present case I find that four eye witnesses to the occurrence were found to be present at the scene of occurrence and their presence at the scene of occurrence could not be disbelieved by any plausible or cogent reasons and then discarding the evidence of eye witnesses has been done by the learned Court below on a weak and meek reasons then definitely this Court can interfere as the impugned judgment would affect in the system of delivering justice."

(c) "In that way, without forming an opinion regarding the fate of the case I find that the impugned judgment should not be sustained and must be set aside and the matter be quashed for further consideration in the light of the observation made above. In that way, the impugned judgment is hereby set aside and the matter is sent back to the Court below for writing a fresh judgment by giving proper judicial mind to the evidence on record. (Emphasis Supplied) Opposite party Nos. 2 to 4 are hereby directed to appear before the learned Court below on 2nd August, 2001 and they should be allowed to go on bail to the satisfaction of the learned Sessions Judge and then an opportunity be given for further argument to both the parties writing a fresh judgment on the materials on record."

3. It is this direction as noticed hereinbefore, for writing out a fresh judgment by giving proper judicial mind to the evidence on record and which stands very strongly criticised by the learned senior advocate, Mr. S.B. Sanyal, appearing in support of the appeal and we do find some justification in regard thereto.

4. Before delving on to the principal issue as regards the departure and as stated above it would be convenient to note that in count 1, paragraph 30 of the trial Court s judgment has been drawn attention of and for convenience sake para 30 is reproduced hereinbelow for its true scope and effect. The said paragraph 30 reads as below :-

"30. Now on the cool consideration of entire facts, evidence oral and documentary and argument of both the sides, I reach on the following conclusion:-

(A) That according to P.W.5 and P.M. Report (Ext.2) I find that the doctor conducted post mortem at 11 a.m. on 7.10.91 and had written in the end of post mortem report that the victim died within 24 hours from the time of conduction of post mortem report. This means that the story of prosecution that Ram Binod was caught and short on 6.10.91 and soon he died is not a fact, because according to medical finding Ram Binod Singh was

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2002 Supreme(SC) 641

Cases Referred (3)