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1986 Supreme(Bom) 152
IN THE HIGH COURT OF BOMBAY
[PANAJI BENCH]
B.A. Masodkar B.G. Kolse-Patil, JJ.
Kusta Balsu Kandnekar.... Appellant.
Versus
State of Goa, Daman Div..... Respondent.
Criminal Appeal No. 7 of 1985, decided on 29-4-1986.
Advocates appeared :
N.V. Walawalkar, (appointed), for appellant-original accused.
G.U. Bhobe, P.P., for respondent.
Headnote:Sections 401 and 378-Penal Code, 1860-Sections 302 and 304-Extent of High Courts revisional power whether High Court can not in exercise of revisional power convert finding of acquittal into one of conviction-Even in appeal against acquittal order if High Court would not interfere simply because two views are possible-Judgment of acquittal under Section 302, Indian Penal Code if could not be converted into one of conviction with help of Section 401, Criminal Procedure Code.
Appeal was filed by appellant accused questioning his conviction by Sessions Judge under Section 304, Part II, Indian Penal Code. The single Judge felt that there was miscarriage of justice in as much as the offence with which the accused should have been convicted was under Section 302, Indian Penal Code and not Section 304, Part II, Indian Penal Code. Single Judge felt that matter should be heard by the Division Bench for the Court was competent to convert the order of acquittal and convict the appellant accused under Section 302, Indian Penal Code.
Held, If one goes by reasoning of Single Judge: then acquittal under Section 302, Indian Penal Code will have to be set aside and accused will have to be convicted for that offence instead of for the offence under Section 304, Part II, Indian Penal Code. Such a course is impossible in view of express statutory bar available in Section 401 (3) Criminal Procedure Code. Though negatively drafted, it prohibits High Court positively from converting finding of acquittal into one of conviction.
However wide may be the phraseology of main part of Section 401, sub-section (3) of Section 40 I Criminal Procedure Code operates as an exception to it. It can be viewed as a proviso operating upon the generality of the wide powers conferred upon the court. It is implicit that full effect will have to be given to such a provision. It enjoins that the power is not available so as to convert the ordered acquittal into a conviction in exercise of revisional powers. Excepting this the court exercising the power under Section 40 I, Criminal Procedure Code can pass any other order when the miscarriage of justice is made out. It follows from this is judgment of acquittal under Section 302, Indian Penal Code can not be converted into are of conviction with the aid of provisions of Section 401, Criminal Procedure Code.
The only method by which it is possible to alter ordered acquittal into one of conviction is by filing an appeal against the acquittal and exercising appellate powers therein. If an appeal against acquittal were to be entertained the High Court would be exercising appellate jurisdiction and would be clothed with power to alter acquittal into conviction This is distinct and different from revisional jurisdiction. Section 401, Criminal Procedure Code is a repository of revisional powers and advisedly that by itself makes the position clear that the revisional power would not be available so as to alter finding of acquittal into one of conviction.
If an evidence two views are reasonably possible, one supporting acquittal and the other indicating conviction then even in appeal High Court would not be entitled to interfere merely because Court feels that, it would, sitting as a trial judge, hive taken the other view of convicting the accused instead of acquitting him.
2. Briefly stated, that order came to be made in the appeal filed by the present appellant-accused, Kusta Balsu Kandnekar, being Criminal Appeal No. 7 of 1985. That appeal was filed through jail questioning his conviction by the Sessions Judge, Margao, for the offence under section 304, Part II of the Indian Penal Code and awarding the sentence of rigorous imprisonment for four years. While hearing that appeal, the learned Single Judge felt that the judgment under appeal prima facie indicated that there was miscarriage of justice, inasmuch as the offence with which the appellant-accused should have been convicted was under section 302 and not section 304, Part II of the Indian Penal Code. Having so found, the learned Single Judge felt that such a result could be reached even in the appeal filed by the accused by reason of the power conferred upon the High Court under section 401 of the Code of Civil Procedure, 1973.
3. We have carefully gone through the judgment of the learned Single Judge. The said judgment indicates that the learned Single Judge was of the view that revisional powers are available to the High Court so as to substitute the conviction in place of the acquittal which is recorded by the trial Judge. For that, reliance was placed mainly on two decisions of the Supreme Court reported in the cases of (Ramesh Chandra v. A.P. Jhaveri)1, A.I.R. 1973 S.C. 84 and (Delhi Municipality v. Girdharilal Sapuru)2, A.I.R. 1981 S.C. 1169.
4. Reading of those two judgments does not indicate that such a course if permissible. The latter judgment Delhi Municipality v. Girdharilal Sapuru, A.I.R. 1981 S.C. 1169 dealt with the case of an order of discharge, while the 1973 judgment Ramesh Chandra v. A.P. Jhaveri, A.I.R. 1973 S.C. 84 dealt with the case where the High Court set aside acquittal based on compounding of a non-compoundable offence in exercise of the revisional jurisdiction and directed retrial of the accused in accordance with law. The ratio as well as the principles of both these cases are not attracted in the present case. If we were to go by the reasoning available in the judgment of the learned Single Judge, then the acquittal under section 302 of the Indian Penal Code will have to be set aside and the accused will have to be convicted for that offence instead of for the offence under section 304, Part II of the Indian Penal Code. Such a course is impermissible in view of the express statutory bar available in sub-section (3) of section 401 of the Code of Criminal Procedure. Though negatively drafted, it prohibits the High Court positively from converting the finding of acquittal into one of conviction.
5. However wide may be the phraseology of the main part of section 401, sub-section (3) of section 401 of the Code of Criminal Procedure operates as an exception to it. It can be viewed as a proviso operating upon the generality of the wide powers conferred upon the Court. It is implicit that full effect will have to be given to such a provision. The impact thereof is clear and explicit. It enjoins that power is not available so as to convert the ordered acquittal into a conviction in exercise of revisional powers. The statute being plain, it is unnecessary to refer to the authorities on this aspect. We must, however
