Public Prosecutor may prefer an appeal against the order of acquittal.

This is a revision petition preferred against the acquittal of the accused in S.C. No. 136 of 1959 on the file of the learned Additional Sessions Judge of Tirunelveli. That prosecution related to the murder of a man named Ramaswami Naicker who undoubtedly received gunshot injuries at the spot of offence (Nadu street in Varaganur Village) at about sunrise on 17th April, 1959, and succumbed to those injuries. The revision proceeding is preferred before us by Seeni Ammal (P.W. 1), the wife of the victim, under section 439, Criminal Procedure Code. In view of the importance of clarifying the procedure with respect to petitions of this character, particularly in the context of the restriction of our powers under section 439 (4), Criminal Procedure Code, we have directed the issue of notice to the learned Public Prosecutor for the State, and heard both the learned Public Prosecutor and learned counsel for the revision petitioner extensively, even at the present stage of admission of this petition.

Before proceeding into the facts of the case to any extent it is necessary to make clear certain implications of the situation itself. The growth of criminal jurisprudence has been a progressive substitution of the idea that grave crime primarily affects the social fabric, since it imperils that fundamental security of person and property without which society is impossible, for the idea that such crime is a wrong inflicted upon individuals, to be redressed by vengeance. Historically speaking it is only gradually that the lex talionis or the rule of an eye for an eye and a tooth for a tooth, has been superseded by an impersonal scheme of punishment for grave crime, the prosecution for which is primarily the concern of the agencies of the State, precisely as the detection of which is the concern of one limb of the administration, the Department of Police. But, even at present, there are anomalies. The machinery of the State, adequate as it is for most cases, may function imperfectly or eccentrically in a particular case. That is why, under the Criminal Procedure Code as it stands today, even a prosecution for a grave crime may be as a result of a complaint preferred by a private party. Further, where the accused has been improperly acquitted in a prosecution for grave crime, it is again beyond controversy that the State should be primarily concerned, for the fact that a guilty person escapes the retribution of justice, even where the material for convicting him is true and adequate, is one which affects public interest and the welfare of the State, equally with a wrongful conviction. Nevertheless, it may happen that an erroneous acquittal does not always lead to a prompt action by the agencies of the State, it may be for a variety of reasons. Hence, in section 417 (3), Criminal Procedure Code, as now enacted (Amendment Act XXVI of 1955), provision has been made for the private complainant to obtain Special Leave to appeal from an acquittal. But, an appeal from an acquittal and a proceeding in revision differ in tins essential respect. Even if we are fully convinced that the acquittal was erroneous, and that there has been a miscarriage of justice, our powers under section 439 (4), Criminal Procedure Code, are circumscribed, in the sense that while we might certainly order a retrial of the case, we cannot, in the exercise of revisional jurisdiction, convert a finding of acquittal into one of conviction, and pass an appropriate sentence.

In Harihar v. The State of West Bengal1, their Lordships of the Supreme Court laid, down the law following D, Stephen v. Nosibolla2, that the revisional jurisdiction conferred on the High Court under section 439, Criminal Procedure Code was not to be lightly exercised, particularly when it is invoked by a private complainant against an order of acquittal, against which the Government also has a right of appeal under section 417, Criminal Procedure Code. In such cases, it must be established clearly that