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HIGH COURT OF CALCUTTA
KANCHAN CHAKRABORTY, J.
Oriental Insurance Co. Ltd. - Appellants
Vs
State - Respondents
C.R.R. No. 2937 of 2009
Decided on: Feb 17, 2011
CRIMINAL REVISION - Acquittal - Interference - Legality, Validity, and Propriety of Acquittal Order - Failure to Exercise Power under Section 311 of Cr.P.C. and Section 165 of the Evidence Act - Jurisdiction of High Court - Revisional Power - Limited and Restricted - Glaring Cases of Injustice - Violation of Fundamental Principles of Law - Retrial - Exceptional Cases - Manifest Illegality or Irregularity - Flagrant Miscarriage of Justice.
Fact of the Case:
The petitioner, the de facto complainant and Branch Manager of Oriental Insurance Co. Ltd., Kalyani Branch, filed a revisional application challenging the acquittal of the opposite party, Bhola Nath Roychowdhury, from the charge of misappropriation of funds under Section 408 of the Indian Penal Code. The trial court had acquitted the accused on the ground that the prosecution failed to produce any documentary evidence to establish the case.
Finding of the Court:
The High Court found that the trial court had failed to exercise its power under Section 311 of the Code of Criminal Procedure read with Section 165 of the Evidence Act to call for the production of relevant documents and witnesses, which resulted in a flagrant miscarriage of justice. The court held that the trial court should have taken appropriate steps to secure the attendance of the witnesses who had disobeyed the court's summons and closed the prosecution's case without exhausting the process.
Issues: 1. Whether the trial court erred in acquitting the accused without properly appreciating the evidence on record? 2. Whether the trial court failed to exercise its power under Section 311 of the Code of Criminal Procedure read with Section 165 of the Evidence Act to call for the production of relevant documents and witnesses?
Ratio Decidendi: 1. The jurisdiction of the High Court in exercising its revisional power is limited and restricted, and it can only interfere in cases of glaring injustice resulting from a violation of fundamental principles of law by the trial court. 2. The power to order a retrial should be exercised sparingly and with great care and caution, and not merely because the High Court disagrees with the findings of fact recorded by the trial court. 3. In exceptional cases, the High Court can interfere with an order of acquittal in revision, such as when the trial court lacks jurisdiction, wrongly excludes evidence, wrongly admits evidence, overlooks material evidence, or bases the acquittal on an invalid compounding of the offense. 4. The trial court has a duty to ensure that the summons issued by the court are obeyed and that the persons summoned appear. In case of latches on the part of the persons summoned, the court should take adequate steps for procuring their attendance. 5. The power under Section 311 of the Code of Criminal Procedure read with Section 165 of the Evidence Act is wide and extraordinary and can be exercised in proper cases at any point of time by a trial court to call for the production of documents or witnesses for the proper adjudication of the case.
Final Decision: The High Court allowed the revisional application, set aside the judgment of acquittal, and directed the trial court to issue fresh summons upon the remaining witnesses, including the Investigating Officer. The court also directed the trial court to examine the accused under Section 313 of the Code of Criminal Procedure and give him an opportunity to adduce evidence on his behalf. Upon completion of the examination of the witnesses, the trial court was directed to pass a fresh judgment.
1. THE challenge in this revisional application is to the judgment and order dated 02.03.2009 passed by Sri Anupam Sarkar, the learned Judicial Magistrate, Kalyani, Nadia thereby acquitting the opposite party No. 2 Bhola Nath Roy Chowdhury @ Bholanath Chowdhury from the charge under Section 408 of the Indian Penal Code in G. R. Case No. 64 of 1997.
2. DILIP Kumar Das, the then Branch Manager of the Oriental Insurance Co. Ltd., Kalyani Branch lodged one written complaint with the Officer-in-Charge of the Kalyani Police Station against the opposite party No. 2, Sri Bhola Nath Roychowdhury alleging therein that on 29.04.1997 after opening the cash box of the office, he found that a cash amount of Rs.10,260/- was missing from the box. The opposite party No. 2 was absent on that date without prior notice. The Branch Manager of the Oriental Insurance Co. Ltd., Kalyani Branch lodged another complaint with Kalyani P. S. alleging therein that a further sum of Rs. 4,11,879/- was also misappropriated by Bhola Nath Roy Chowdhury which he detected from the Books of Accounts and records.
On the basis of the said F. I. R, Kalyani P. S. Case No. 56/97 dated 15.05.97 was registered and the case was investigated into and finally ended in charge-sheet under Section 408 of the Indian Penal Code against the opposite party No. 2.
3. THE opposite party No. 2 pleaded not guilty to the charge and as a result, the trial commended. In course of trial, as many as six witnesses were examined on behalf of the prosecution. Only document admitted into evidence was the F. I. R dated 12.05.1997 which was marked as Exhibit-1. THE prosecution failed to produce any further document in course of trial. THE learned trial Court upon consideration of the evidence on record found the opposite Party No. 2 not guilty to the offence and acquitted him by the impugned judgment. THE de facto complainant i.e. Manger, Oriental Insurance Co. Ltd., Kalyani Branch filed this revisional application challenging the legality, validity and propriety of the order mainly on the ground that the learned Court failed to appreciate the evidence on record properly and that the learned Court failed to exercise its power under Section 311 of the Code of Criminal Procedure read with Section 165 of the Evidence Act in the matter of calling the witnesses and documents seized in course of investigation by the prosecution. THE point to be decided in this revisional application is whether the order impugned is sustainable in law.
4. THE jurisdiction of the High Court while exercising its revisional power is limited and restricted specially in case of acquittal. It is only in glaring cases of injustice, resulting from some violation of the fundamental principles of law by the trial Court, that the High Court is empowered to set aside the order of acquittal and direct retrial of the acquitted accused. THE power should be exercised sparingly and with great care and caution. THE mere circumstance is that a findings of fact recorded by the trial Court, may, in the opinion of the High Court be wrong, is not justified for setting aside the acquittal and direct retrial. This view was taken in Bansi Lal v. Laxman Singh, 1986 SCC (Cr) 342 : 1986 C Cr LR. (SC) 132. THE Hon'ble Apex Court in K. Chinnaswamy Reddy v. State of A. P., (1963)1 Cr LJ 8 in paragraph 7 observed :
"Para - 7 - It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub-section (4) of S. 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that
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