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1978 Supreme(Sikk) 1
SIKKIM HIGH COURT
MAN MOHAN SINGH GUJRAL, A. M. BHATTACHARJEE, J.
RINZING CHODA
VERSUS
STATE AND OTHERS
Criminal Revn. No. 1 of 1977,
Decided On : 10 -1 -1978
The High Court has the jurisdiction to interfere with an order of acquittal in revision in exceptional cases where the interest of public justice requires interference for the correction of manifest illegality or the prevention of gross-miscarriage of justice.
Headnote:
CRIMINAL REVISION - JURISDICTION - PRIVATE COMPLAINANT - RIGHT TO MOVE IN REVISION - EXCEPTIONAL CASES - MANIFEST ILLEGALITY OR GROSS MISCARRIAGE OF JUSTICE - PROCEDURE - WARRANT CASES - FRAMING OF CHARGE - EXAMINATION OF ACCUSED - CROSS-EXAMINATION OF PROSECUTION WITNESSES - DEFECTS AND IRREGULARITIES - RETRIAL - INTEREST OF JUSTICE.
Fact of the Case:
The petitioner-complainant filed a complaint against the accused-respondents and two other accused persons under Ss. 325/34 of the I. P. C. After recording the statements of the prosecution witnesses, the learned Magistrate, without framing a charge and without giving the accused-respondents any further opportunity to cross-examine the witnesses, proceeded to examine the accused-respondents under S. 342 of the Cr. P. C. and acquitted them.
Finding of the Court:
The learned Magistrate committed manifest illegality or grave error of procedure in disposing of the case in the manner he did. However, the evidence recorded in the case did not implicate the accused in any way and, therefore, any direction for retrial would not be in the interest of justice.
Issues: 1. Whether a private complainant has the right to move in revision in a case proceeding on a police report? 2. What are the exceptional cases in which the High Court can interfere with an order of acquittal in revision? 3. What are the defects and irregularities in the procedure followed by the learned Magistrate? 4. Whether the accused should be retried?
Ratio Decidendi: 1. A private complainant has the right to move in revision in a case proceeding on a police report, but only in exceptional cases where the interest of public justice requires interference for the correction of manifest illegality or the prevention of gross-miscarriage of justice. 2. The exceptional cases in which the High Court can interfere with an order of acquittal in revision include cases where the trial Court has no jurisdiction to try the case but has still acquitted the accused, or where the trial Court has wrongly shut out the evidence which the prosecution wished to produce, or where the appeal Court has wrongly held evidence which was admitted by the trial Court to be inadmissible, or where material evidence has been overlooked either by the trial Court or by the appeal Court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. 3. The defects and irregularities in the procedure followed by the learned Magistrate include failure to frame a charge, failure to ask the accused to plead to the charge, and failure to give the accused due opportunity to cross-examine the prosecution witnesses after the framing of the charge. 4. Retrial is not warranted in this case as the evidence does not implicate the accused in any way and any direction for retrial would not be in the interest of justice.
Final Decision: The revision petition was dismissed.
A. M. Bhattacharjee, J. :- We have heard Mr. G. L. Subba, the learned Advocate appearing for the petitioner-complainant and the accused-respondents appearing in person and the learned Advocate-General appearing for the State and have perused the records of the case and we are of opinion that we cannot accept the reference and the recommendations made by the learned Sessions Judge and must decline to interfere.
2. The case of the petitioner-complainant is that he lodged a complaint against the accused-respondents and two other accused persons and that after investigation the police submitted a charge-sheet under Ss. 325/34, of the I. P. C. against the two accused-respondents in the Court of learned Judicial Magistrate, West Sikkim. The learned Magistrate thereafter recorded the statements of all the witnesses produced by the prosecution numbering five in all and then without framing a charge and without giving the accused-respondents any further opportunity to cross-examine the witnesses, proceeded to examine the accused-respondents under S. 342 of the Cr. P. C. and on a consideration of the prosecution evidence so recorded and the statements of the accused-respondent, the learned Magistrate passed the impugned order of acquittal.
3. Against this order a revisional application was filed before the learned Sessions Judge by the petitioner-complainant challenging the order of acquittal passed by the learned Magistrate and the learned Sessions Judge has reported the case to this Court with his recommendations that the impugned order be quashed and the case be remanded for trial afresh.
4. This is a case of revision at the instance of a private complainant in a case which has proceeded on a police report. After the decision of the Supreme Court in Thakur Ram v. State of Bihar (AIR 1966 SC 911) : (1966 Cri LJ 700), it has become the usual argument of the learned counsel opposing revisional application at the instance of a private party that a private party has really no locus standi to move a criminal Court in revision. But as we shall presently show, though a perfunctory reading of the said decision may at the first blush give rise to such impression, yet, reading it carefully, as one should and keeping in mind the long catena of cases on this point both prior and subsequent to the said decision, one would have no doubt that it neither was nor could be intended by the Supreme Court to lay down as law that a private party can in no case even move a criminal Court in revision in a case proceeding on a police report.
5. In Thakur Ram v. State of Bihar (AIR 1966 SC 911) : (1966 Cri LJ 700) it has been observed by the Supreme Court (at page 911) as under:-
"In a case which has proceeded on a police report, a private party has really no locus standi. No doubt, the terms of S. 435......are very wide...... The Criminal Law is not to be used as an instrument of wreaking private vengeance by an aggrieved party against the person who, according to that party, had caused injury to it."
6. Relying on the observations quoted above, it has often been urged that the Supreme Court has put a blanket embargo on the right of a private complainant to move in revision. But if one bears in mind, as one should, the earlier as well as the later decisions of the Supreme Court spreading over a period of about 25 years, it would be clear that no such all-embracing embargo was ever intended to be laid down in Thakur Ram's case (1966 Cri LJ 700) (SC). The right of a private party to move in Criminal Revision has been recognised by the Supreme Court in Bissu Maghoo v. State of Uttar Pradesh (AIR 1954 SC 714) : (1954 Cri LJ 1796) and Dhirendra Nath v. Mukunda (AIR 1955 SC 584). Such a right has also been clearly recognised by the Supreme Court in the earlier cases of Stephens v. Nosibolla (AIR 1951 SC 196) : (52 Cri LJ 510) and Harihar v. State of West Bengal (AIR 1954 SC 266) and in the later case of Chinnaswamy v. State of Andhra Pradesh (AIR 1962 SC 1788) :
