IMPORTANT POINT
Revisional jurisdiction at instance of complainant has to be exercised by High Court only in very exceptional cases where High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice.

Headnote:Criminal Procedure Code, 1973-Section 401-Indian Penal Code, 1860 -Sections 498A and 306-Victim deceased got married to appellant No. 1 in 1990 committed suicide on 25-10-1995-Acquittal by trial Court on findings that FIR lodged immediately after incident was withheld and case proceeded on FIR lodged after 2 months of incident and that deceased had left behind suicide note exonerating appellant and three witnesses on the point of cruelty and harassment to deceased by appellants-accused had turned hostile-Acquittal judgment was set aside, by High Court in a revision filed by complainant, mother of deceased-Direction for de novo trial a fresh-Appeal revisional jurisdiction at instance of complainant to be exercised by High Court only in exceptional cases where High Court found manifest error of law resulting in flagrant miscarriage of justice-Trial Court however had already proceeded with trial and had recorded statement of father of deceased-High Court ought not to have directed trial Court to hold de novo trial-Evidence already recorded could not be erased or wiped out-Trial Court to decide the case on evidence already on record and additional evidence which would be recorded.
       Held : The cases cited by the learned counsel show the settled legal position that the revisional jurisdiction, at the instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice. (Para 20)
       Without going into the correctness of all the observations made by the High Court in the impugned judgment, we find it necessary to clarify that the High Court ought not to have directed the trial court to hold a de novo trial and take decision on the basis of so called suggested formula. The High Court in its concluding part of the judgment does state that any observation in its judgment should not influence the mind of the trial court but, at the same time, the High Court directs the trial court to take a fresh decision from stage one and on the basis of the suggested formula. Learned counsel for the accused is justified in his grievance and apprehension that the aforesaid observations and directions are likely to be mistaken by the trial court as if there is a mandate to it to record the verdict of conviction against the accused regardless of the worth and weight of the evidence before it. (Para 22)
       The law laid down in the Best Bakery Case in the aforesaid extraordinary circumstances, cannot be applied to all cases against the established principles of criminal jurisprudence. Direction for retrial should not be made in all or every case where acquittal of accused is for want of adequate or reliable evidence. In Best Bakery case, the first trial was found to be a farce and is described as mock trial. Therefore, the direction for retrial was in fact, for a real trial. Such extraordinary situation alone can justify the directions as made by this Court in the Best Bakery Case (supra). So far as the position of law is concerned we are very clear that even if a retrial is directed in exercise of revisional powers by the High Court, the evidence already recorded at the initial trial cannot be erased or wiped out from the record of the case. The trial judge has to decide the case on the basis of the evidence already on record and the additional evidence which would be recorded on retrial. (Paras 24 and 25)

JUDGMENT

Dharmadhikari, J.-Leave to appeal, as prayed for, is granted.

Counsel for the parties are heard at length.

2. The appellants are accused of commission of offence of alleged cruel treatment meted out to deceased - Kana Banerjee, punishable under Section 498A of the Indian Penal Code and abetting her suicidal death punishable under Section 306, IPC.

3. On the evidence produced by the prosecution, the trial court acquittal them. But in revision, preferred by mother of the deceased, the High Court by the impugned order has set aside the acquittal and directed a de novo trial.

4. The necessary facts leading to the trial and eventual remand by the High Court for fresh trial are as under:

Appellant No.1 was married to the deceased in the year 1990. She was employed in Railways and was regularly attending to her duties. Her parents also lived not far away from her matrimonial home. On 25.10.1995 she was found dead. The accused-husband had informed her parents of her death. It is the case of her mother that soon after the incident, a First Information Report was lodged with the police alleging harassment and cruel treatment to her by the accused. The said FIR has not been produced. The FIR which was produced was lodged on 22.12.1995 which led to the prosecution, and acquittal of the accused by the trial court.

5. In the course of investigation a suicide note was seized from the mother-in-law of the deceased. The contents of the suicide note read that the deceased had developed illicit relationship with some other person and it was no longer possible for her to deceive her husband. It was further written in the suicide note that she was lucky to get such a husband and her father should treat him well and arrange for his second marriage after her death.

6. In his post-mortem report the Autopsy Surgeon opined that the cause of death was poisoning and also hanging as ligature marks were found on her neck.

7. The prosecution examined mother of the deceased as PW8 and three other witnesses living in the neighbourhood. The mother in her deposition stated that in her frequent visits to the house of the accused the deceased used to complain about her physical and mental torture by the accused but had asked her mother not to disclose this fact to her father who was a heart-patient. The mother also deposed that the deceased was medically examined by Doctor Baidyanath Chakroborty who had opined that there was no possibility of her bearing child in her womb and she should opt for test tube baby. She further deposed that after one and a half years of her marriage, the deceased did conceive but in the fallopian tube and that conception was terminated in a hospital at Aliduar. The allegation of the mother is that for the aforesaid reason, the accused got annoyed and increased their torture on her. She stated that immediately after her daughter s death, an FIR was lodged by father of the deceased and subsequently she also lodged an FIR in writing. The delay in second FIR was explained saying that for a few months she was mentally disturbed. In the cross-examination she admitted to have derived knowledge that her daughter had left a suicide note containing the writings abovementioned. When cross-examined she did not dispute that the suicide note was not in the writing of the deceased. The other three witnesses PW2, PW3 and PW4 examined by the prosecution to prove the alleged cruel treatment of the deceased by the accused did not support the prosecution case and were declared hostile. The opinion of the hand-writing expert, on the suicide note, was filed but he was not examined in proof of his opinion.

8. The trial court, by appreciating and weighing the evidence on record did not accept the case of the prosecution. The First Information Report alleged to have been lodged soon after the incident was not proved. The second FIR was lodged after a delay of two months. There was no convincing explanation for the same. The learned trial judge observed that con

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2004 Supreme(SC) 1461

IMPORTANT POINTRevisional jurisdiction at instance of complainant has to be exercised by High Court only in very exceptional cases where High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice.

Cases Referred (3)

IMPORTANT POINT
Revisional jurisdiction at instance of complainant has to be exercised by High Court only in very exceptional cases where High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice.