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2013 Supreme(UK) 514
SUPREME COURT OF INDIA
Hon'ble Mr. Justice Chandramauli Kr. Prasad and
Hon’ble Mr. Justice Kurian Joseph
Criminal Appeal No. 1948 of 2013
GANESHA – Appellant
Versus
SHARANAPPA & ANR. – Respondents
Decided on : 19.11.2013
For the Respondents:Mr. Sanjay R. Hegde, Mr. V.N. Raghupathy, Advocates
Headnote:(A) Criminal Procedure Code, 1973, Sec. 401(3) and 386 — High Court’s powers of revision u/s 401 — Scope and ambit — While exercising powers of revision High Court can exercise any of the powers conferred on a Court of appeal including the power u/s 386, Cr.P.C. — However, Sec. 401(3), Cr.P.C. contemplates that the power of revision does not authorise a High Court to convert a finding of acquittal into one of conviction — In a case, where the finding of acquittal is recorded on account of misreading of evidence or non-consideration of evidence or perverse appreciation of evidence, nothing prevents the High Court from setting aside the order of acquittal at the instance of the informant in revision and directing fresh disposal on merits by the trial Court — In an exceptional case, the High Court in revision can set aside an order of acquittal but it cannot convert an order of acquittal into that of an order of conviction — The only course left to the High Court in such exceptional cases is to order re-trial. (Paras 7 to 11)
(B) Criminal Procedure Code, 1973, Secs. 154(2), 2(d) and 200 — Words and Expressions — Words ‘Informant’ and ‘Complainant’ — Distinction — Generally, the person giving the report u/s 154, Cr.P.C. is described as the ‘complainant’ or the ‘de facto complainant’ instead of ‘informant’, assuming that the State is the complainant — In a case registered u/s 154, Cr.P.C., the State is the prosecutor and the person whose information is the cause for lodging the report is the informant — This is obvious from Sec. 154(2), Cr.P.C. that provides for giving a copy of the information to the ‘informant’ and not to the ‘complainant’ — Complainant is the person who lodges the complaint — Word ‘Complaint’ is defined u/s 2(d), Cr.P.C. and means any allegation made orally or in writing to a Magistrate — Person who makes the allegation is the complainant, which would be evident from Sec. 200, Cr.P.C., that provides for examination of a complainant in a complaint case — Therefore, these words carry different meanings and are not interchangeable — In short, the person giving information which leads to lodging of report u/s 154, Cr.P.C. is the informant and the person who files the complaint is the complainant. (Para 12)
¼v½ n.M izfØ;k lafgrk] 1973] /kkjk 401¼3½ vkSj 386 & vUrxZr /kkjk 401 mPp U;k;ky; dh iqujkoyksdu dh ‘kfDr;k¡ & foLrkj vkSj ifjf/k & vius iqujkoyksdu vfèkdkjksa ds iz;ksx esa mPp U;k;ky; }kjk u/s 386, Cr.P.C. lfgr iqufoZpkj U;k;ky; dh fdlh Hkh ‘kfDr dk iz;ksx fd;k tk ldrk gS & gkyk¡fd 401(3), Cr.P.C. ifjdYiuk fd iqujkoyksdu ‘kfDr mPp U;k;ky; dks izkf/kÑr ugha djrh fd nks”keqfDr ds vkns’k dks nks”kflf) esa ifjofrZr fd;k tk lds & okn esa vxj nks”keqfDr ds vkns’k vfHkdfFkr gks lk{;ksa ds =qfViw.kZ iBu ls ;k lk{;ksa ds vfopkj ;k lk{;ksa dh vuqfpr foospuk ij] rc iqujh{k.k esa lwpukdÙkkZ ds vuqjks/k ij mPp U;k;ky; }kjk nks”keqfDr ds vkns’k dks vikLr dj] ijh{k.k vnkyr }kjk okn dks xq.kkxq.k ds vk/kkj ij u, fljs ls fu.khZr djus ds fy, funsZ’k nsus esa dksbZ ck/kk ugha & vlk/kkj.k okn esa] mPp U;k;ky; }kjk iqujh{k.k esa nks”keqfDr ds vkns’k dks [kkfjt fd;k tk ldrk gS ijUrq nks”keqfDr dks nks”kflf) esa ifjofrZr ugha fd;k tk ldrk vfirq dfFkr okn esa iqu% fopkj.k ds vkns’k fn, tk ldrs gSaA ¼izLrj 7 ls 11½
¼c½ n.M izfØ;k lafgrk] 1973] /kkjk 154(2), 2(d) vkSj 200 & ‘kCn o vfHkO;fDr & ‘kCn ^lwpukdÙkkZ* vkSj ^f’kdk;rdÙkkZ* esa foHksn & lkekU;r% u/s 154, Cr.P.C. fjiksVZ nsus okyk f’kdk;rdÙkkZ gks ;k lwpukdÙkkZ ds ctk; oLrqr% f’kdk;rdÙkkZ ;g /kkj.k djuk fd jkT; f’kdk;rdÙkkZ gS & U/s 154, Cr.P.C. jftLVMZ okn esa] jkT; vfHk;kstd vkSj og O;fDr ftldh lwpuk ij fjiksVZ ntZ gqbZ og lwpukdÙkkZ gksrk gS & ;g /kkjk 154(2), Cr.P.C. ls Li”V gS tks izca/k djrk gS fd lwpuk dh ,d izfr lwpukdÙkkZ dks nh tk, u fd f’kdk;rdÙkkZ dks & f’kdk;rdÙkkZ og O;fDr gS tks f’kdk;r nk;j djrk gS & ‘kCn ßf’kdk;rÞ dk u/s 2(d), Cr.P.C. vFkZ gS] eftLVªsV ds le{k ekSf[kd ;k fyf[kr esa vkjksfir djuk & O;fDr tks vkjksi yxkrk gS og f’kdk;rdÙkkZ gS tSlk fd /kkjk 200, Cr.P.C. ls fofnr tks fd f’kdk;r okn esa f’kdk;rdÙkkZ ds ijh{k.k dk izca/k djrk gS & bl izdkj bu ‘kCnksa dk fHké vFkZ gS tks fd varj ifjorZuh; ugha & laf{kIr esa] lwpuk nsus okyk O;fDr ftl ij vk/kkfjr u/s 154, Cr.P.C. f’kdk;r ntZ djk;h tkrh gS og lwpukdÙkkZ gksrk gS vkSj og O;fDr tks f’kdk;r ntZ djkrk gS og f’kdk;rdÙkkZA
¼izLrj 12½
Chandramauli Kr. Prasad, J. — Petitioner, besides three other accused, was put on trial for offence under Section 341, 323, 324 and 504 read with Section 34 of the Indian Penal Code. Judicial Magistrate, First Class, Yadgiri Taluk, Gulbarga District, Karnataka, by its judgment and order dated 14th of September, 2006 passed in CC No. 355 of 2006, acquitted them of all the charges.
2. Aggrieved by the aforesaid, the informant preferred Criminal Revision Petition No. 147 of 2007 and the High Court, by the impugned judgment and order dated 5th of August, 2008 maintained the order of acquittal of all accused persons, excepting accused no. 3, Ganesha who has been held guilty for the offence punishable under Section 324 of the Indian Penal Code and sentenced to undergo simple imprisonment for a period of six months and also to pay a fine of Rs.5,000/-, and in default of payment of fine, to undergo further simple imprisonment for a period of three months.
3. It is against this order that Ganesha has preferred this special leave petition.
4. Leave granted.
5. The prosecution was set in motion on the basis of a report given by the informant, Sharanappa, inter alia, alleging that he made a protest when he saw the accused persons grazing their cattle in his land and thereby damaging the mulberry crop. It was alleged that Ganesha, the appellant herein assaulted the informant with a Badige (stick) which caused injury near his left eye. The rest of the prosecution story is not being narrated as the accused who have allegedly participated in that have been acquitted and we are not concerned with that in the present appeal. The trial court, on appraisal of the evidence, came to the conclusion that the prosecution has not been able to prove its case beyond all reasonable doubt and, accordingly, acquitted all the accused. However, in revision, the High Court re-appraised the evidence and found the reasoning assigned by the trial court to be totally perverse and contrary to the evidence on record. The High Court relied on the evidence of Sharanappa, the informant (PW-2), Maremma (PW-4), Sujatha (PW-5) and Hussainappa (PW-6), who claimed to be the eye-witnesses of the occurrence. The High Court found Maremma (PW-4) and Hussainappa (PW-6) to be the independent eye-witnesses and reliable. The High Court further observed that the evidence of Dr. Surekha (PW-1), who examined the injured and gave the wound certificate (Exhibit 2) corroborated the case of the prosecution. Accordingly, the High Court set aside the order of acquittal of the present appellant and convicted him as above. While doing so, the High Court observed as follows:
“17. In my view, the aforesaid reasoning of the trial court is totally perverse and contrary to the evidence on record. We have seen from the evidence of P.Ws. 2, 4, 5 and 6 that all of them have come out successfully in their crossexamination and all of them have spoken to the fact of A-3 assaulting P.W. 2 with a stick near his left eye and the other accused persons catching hold of P.W.2. Furthermore, it is also clear from the evidence of P.Ws. 2 and 5 that the incident happened in the land of the complainant when the cattle belonging to the accused went to the land of the complainant for grazing the crop. Therefore, no doubt arises as to the place of incident.”
6. Mr. Akshat Shrivastav, learned counsel appearing on behalf of the appellant raises a very short point. He submits that the High Court in revision could not convert a finding of acquittal into one of conviction and at most, while exercising the revisional jurisdiction, could direct for re-trial. Mr. V.N. Raghupathy, learned counsel appearing on behalf of the respondents, however, submits that the High Court having found the reasoning assigned by the trial court to be totally perverse and contrary to the evidence on record is not precluded from setting aside the order of acquittal and convicting the accused for the offence charged.
7. Having appreciate
