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TMI Blog2002 (5) TMI 860X X X X Extracts X X X X X X X X Extracts X X X X ..... ns Judge, was totally perverse on the face of the judgment. It is on the basis aforesaid, the learned Single Judge in the revisional application in his judgment (impugned before this Court) in three different settings in the body of the judgment stated: (a) "Be it what it may, I am not going into the merit of the case in depth but on perusal of the impugned judgment particularly paragraph 30 and the material on records, I also hold that reasonings of acquittal given by the learned Sessions Judge are definitely not proper and justifiable on the face of it and if not justifiable then it may go to the extent of perversity." (b) "But in the present case I find that four eye witnesses to the occurrence were found to be present at the scene of occurrent and their presence at the scene of occurrence could not be disbelieved by any plausible or cogent reasons and then discarding the evidence of eye witnesses has been done by the learned Court below on a weak and meek reasons then definitely this Court can interfere as the impugned judgment would affect in the system of delivering justice." (c) "In that way, without forming an opinion regarding the fate of the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh, Raj Kishore Thakur were not examined and no explanation was given. (C) Chargesheet witnesses Radha Mohan Singh, Sudistha Singh and Madan Singh were not examined and no explanation during argument was placed by the learned Addl. P.P. Chargesheet witness Radha Mohan Singh has deposed for the defence as D.W.7 and supported the defence version of the accused person i.e. occurrence took place at other place by other person and the dead body was brought by Rickshaw and on cot to the bathan of Raghubansh Singh. (D) The prosecution has miserably failed to establish the P.O. for the P.O. place darwaja of Raghubansh dean of Ranghubansh and bathan and shan of raghubansh were used. Each places possess different boundaries and distance from one another. (E) The prosecution has further failed to establish the weapons used in inflicting wound on the deceased. For arms words nalkatua, deshi revolver, revolver and nalkatua gun were used by different persons. Each weapon differs from one another. Had the P.Ws. actually seen the occurrence, the P.O. and weapons used could not have been deposed differently. (F) The stained soil with blood seized by the I.O. was not produced to be marked as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused upon recording a finding to that effect. The second count as noticed above, if read with count (3), the order impugned cannot but be stated to be a mockery of justice delivery system. Writing of a fresh judgment by giving proper judicial mind to the evidence on record has been the observation of the High Court - and what would be the consequences - would the learned trial Judge be ever able to apply the judicial mind in the matter of dispensation of justice - We are afraid, our answer cannot but be in the negative. Let us now, however, concentrate ourselves on to the procedural aspect of the matter - and it is in this aspect of the matter, Section 401 be considered at the initial stage. The Section reads as below: "401. High Court's powers of revision - (1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercised any of the powers conferred on a Court of Appeal by Section 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in its discretion any of the powers conferred on a Court of appeal by S.423, yet sub-S. (4) specifically excludes the power to 'convert a finding of acquittal into one of conviction'. This does not mean that in dealing with a revision petition by a private party against an order of acquittal, the High Court can in the absence of any error on a point of law reappraise the evidence and reverse the findings of facts on which the acquittal was based, provided only it stops short of finding the accused guilty & passing sentence on him by ordering a re-trial." (6) These two cases clearly lay down the limits of the High Court's jurisdiction on interfere with an order of acquittal in revision: in particular, Logendranath Jha's case [1951] SCR 676: AIR (1951) SC 316 stresses that it is not open to a High Court to convert a finding of acquittal into one of conviction in view of the provisions of S.439(4) and that the High Court cannot do this even indirectly by ordering retrial. What had happened in that case was that the High Court reversed pure findings of facts based on the trial court's appreciation of evidence but formally complied with sub-s.(4) by directing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of S.439(4). We have therefore to see whether the order of the High Court setting aside the order acquittal in this case can be upheld on these principles. (8) A perusal of the judgment of the High Court shows that the High Court has gone into the evidence in great detail so far as the case against the appellant was concerned. In our opinion, the High Court should not have death with evidence in such detail when it was going to order a retrial, for such detailed consideration of evidence, as pointed out in Logendranath's case, 1951 SCR 676 AIR (1951) 316 amounts to loading the dice against the appellant, when the case goes back for retrial. If the matter stood at this only, we would have no hesitation in setting aside the order of the High Court directing retrial; but there is one important circumstance in this case to which the High Court has adverted in passing, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ately, the High Court went further and appraised the evidence also which it should not have done, as held by this Court in Longendranath's case, 1951 SCR 676 AIR (1951) SC 316). However, if admissible evidence was ruled out and was not taken into consideration, that would in our opinion be a ground for interfering with the order of acquittal in revision." Incidentally the object of the revisional jurisdiction as envisaged under Section 401 was to confer upon superior criminal court a kind of paternal or supervisory jurisdiction, in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions of apparent harshness of treatment which has resulted on the one hand in some injury to the due maintenance of law and order, or on the other hand in some underserved hardship to individuals. (See in this context the decision of this Court Janata Dal v. H.S. Chowdhary and Ors., [ 1992] 4 SCC 305). The main question which the High Court has to consider in an application in revision is whether substantial justice has been done. If however, the same has been an appeal, the applicant would be entitled to demand an adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn motion, if it so desires, and certainly when illegalities or irregularity resulting in injustice are brought to its notice call for the records and examine them. This right of the High Court is as much a part of the administration of justice as its duty to hear appeals and revisions and interlocutory applications - so also its right to exercise its powers of administrative superintendence. Though however, the jurisdictional sweep of the process of the High Court, however, under the provisions of Section 401 is very much circumscribed, as noticed here in before. Having regard to the aforesaid, we do feel it expedient to record that in the contextual facts presently under consideration before this Court, the High Court cannot but be said to have exceeded its revisional jurisdiction in setting aside the order of acquittal. In any event, writing of a fresh judgment as directed by the Court is rather a significant departure in the normal disposal of revisional applications. Opportunities have been given for further argument but would that by itself tilt the scale - this aspect of the matter has already been noticed earlier, as such we need not dilate thereon excepting recording tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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