The judgment emphasizes the narrow revisional jurisdiction of the High Courts while examining an order of acquittal and the requirement for recording special reasons for not extending the benefit of the Probation of Offenders Act, 1958.

JUDGMENT :

The petitioner is aggrieved of the order dated 26th June 2015 passed in Criminal Appeal No. 223 of 2010.

2. A First Information Report being Sakchi PS Case No. 59 of 2005 was lodged against five accused persons – the petitioner was the informant. After investigation, the investigating officer submitted charge-sheet under sections 341, 323 and 325/34 of the Indian Penal Code. This First Information Report was converted into G.R Case No. 1284 of 2005 corresponding to T.R No. 96 of 2010.

3. The judgment in T.R No. 96 of 2010 corresponding to G.R Case No.1284 of 2005 convicting the accused for the aforesaid offences came to be challenged by them in Criminal Appeal No. 223 of 2010. The appellate Court by judgment dated 26th June 2015 partly allowed the appeal releasing the opposite party nos. 2 to 6 extending benefit under section 4 of the Probation of Offenders Act, 1958.

4. In principle, this Court would agree with the learned counsel for the petitioner that the benefit of probation could not have been given without any report from the Probation Officer, but for, the provisions under section 401 of the Code of Criminal Procedure that the High Court in exercise of revisional jurisdiction under section 401 of the Code of Criminal Procedure cannot reverse an order of acquittal into one of conviction and it is only in rarity of cases such power should be exercised and, that too, only by an order of remand.

5. In “Venkatesan v. Rani” (2013) 14 SCC 207 the Hon'ble Supreme Court dealt with the powers of the High Court exercising revisional jurisdiction under section 397 read with section 401 of the Code of Criminal Procedure. The Hon'ble Supreme Court has held that in exercise of the revisional jurisdiction the High Court cannot do what the sessions Court would not have done. It was held so in the light of sub section (3) to section 401 of the Code of Criminal Procedure which puts a bar on the powers of the revisional Court to convert an order of acquittal into conviction. The aforesaid context keeping in mind, the Hon'ble Supreme Court held that the High Court in exercise of revisional powers under section 401 of the Code of Criminal Procedure can remand a matter for retrial and, that too, only in exceptional cases in which it is brought on record that the order/judgment of the sessions Court is patently illegal or has resulted in manifest miscarriage of justice. Putting a word of caution, the Hon'ble Supreme Court has observed that “as the language of section 401 of the code makes it amply clear there is no power vested in the High Court to convert a finding of acquittal into one of conviction”.

6. In “Venkatesan” the Hon’ble Supreme Court has observed as under :

“7. To answer the questions that have arisen in the present case, as noticed at the very outset, the extent and ambit of the revisional jurisdiction of the High Court, particularly in the context of exercise thereof in respect of a judgment of acquittal, may be briefly noticed. The law in this regard is well settled by a catena of decisions of this Court. Illustratively, as also chronologically, the decisions rendered in Pakalapati Narayana Gajapathi Raju v. Bonapalli Peda Appadu, Akalu Ahir v. Ramdeo Ram, Mahendra Pratap Singh v. Sarju Singh, K. Chinnaswamy Reddy v. State of A.P. And Logendranath Jha v. Polai Lal Biswas may be referred to.

8. Specifically and for the purpose of a detailed illumination on the subject, the contents of paras 8 and 10 of the judgment in Akalu Ahir v. Ramdeo Ram may be usefully extracted below: (SCC pp. 587-88)

“8. … This Court, however, by way of illustration, indicated the following categories of cases which would justify the High Court in interfering with a finding of acquittal in revision:

(i) Where the trial court has no jurisdiction to try the case, but has still acquitted the accused;

(ii) where the trial court has wrongly shut out evidence which the prosecution wished to produce;

(iii) where the appellate court has wrongly held