N Criminal Appeal No 320 of 1986 193 From the Judgment and order dated 12 111984 of the Delhi High Court in Crl Revision No 228 of 1982 section Rangarajan Miss Asha Rani Jain and Sanjay Parikh for the Appellant
KN Chitkara and RC Verma for the Respondent
The Judgment of the Court was delivered by BALAKRISHNA ERADI J
Special leave granted
Heard both sides
The five appellants were tried by the court of Additional Sessions Judge Delhi on a charge of murder under Section 302 read with Section 34 of the Indian Penal Code
After a very detailed consideration of the evidence adduced in the case the learned Additional Sessions Judge acquitted the appellants giving them the benefit of doubt The respondent herein who is a son of the deceased victim of the murder preferred a criminal revision petition before the High Court of Delhi under Section 397401 Cr
PC challenging the order of acquittal passed by the learned Additional Sessions Judge
A learned Single Judge of the High Court allowed that revision petition set aside the acquittal of the appellants and remitted the case to the trial court for re trial Aggrieved by the said judgment of the High Court the appellants have come up to this Court with this appeal and the main contention raised by them is that the learned Single Judge of the High Court has transgressed the bounds of his revisional jurisdiction in reappreciating the evidence and setting aside their acquittal
After hearing counsel appearing on both sides we have unhesitatingly come to the conclusion that the aforesaid contention of the appellants is well founded and has to be upheld
Briefly stated the prosecution case was that on the mid night of 3rd and 4th June 1980 while Laxman Singh PW 1 was sleeping on the terrace of his house in the DESU Colony Delhi along with his cousin Moti Lal PW 7 they heard the noise of a quarrel and loud shouting from the lane below and on looking down from the terrace they found that deceased Ram Chander was being beaten by accused 194 Nos 1 and 4 Appellant Nos 1 and 4
Thereupon they rushed to the place of the incident
One Babu Lal who was residing in the adjoining quarter also came there and when all the three tried to intervene and separate deceased Ram Chander and the two accused the first accused called out to Bhagwat second accused who was looking down from his adjacent quarter asking him why he was just watching while Ram Chander was assaulting them
In response to the said call it is alleged that Bhagwat along with the remaining accused came there carrying lathis in their hands
There appears to have been a free for all fight
It is said that Ram Chander wielding an iron handle of a hand pump was giving blows to the accused and he in turn was being beaten by lathis by the remaining persons
It is the case of the prosecution that Ram Chander was administered lathi blows on his head by accused Nos 1 and 2 as a result of which he fell down bleeding and died on the spot
Thereafter all the five accused are said to have run away from the scene with their lathis
In support of the prosecution story three persons were examined as eye witnesses namely PW 1 PW 2 and PW 7
P W 2 however turned hostile and did not support the prosecution version in his deposition before the trial court
The learned Additional Sessions Judge discussed at length the testimony given by PW 1 and P W 7 as well as the medical evidence adduced in the case
He found that there were serious discrepancies and glaring inconsistencies between the versions spoken by PW 1 and PW 7 and that the medical evidence also did not support their version of the incident
In the result he found that the testimony of these eye witnesses could not be safely relied on and the prosecution had failed to prove its case beyond reasonable J doubt
The learned Single Judge of the High Court has thought it fit to re appreciate the evidence of the two eye witnesses as well as the testimony given by the medical doctor who conducted the postmortem on the body of the deceased Ram Chander
By such a process of elaborate re examination of the evidence the learned Single Judge was inclined to reach a conclusion different from that recorded by the learned Additional Sessions Judge regarding the acceptability of the testimony of PW 1 and PW 7
It is on this basis that the learned Judge has proceeded to set aside the acquittal of the appellants and order a retrial of the case after virtually recording findings in regard to the credibility of the evidence given by the witnesses relied on by the prosecution
195 Even in an appeal against an order of acquittal no interference will be made with the judgment of the trial court except in rare and exceptional cases where there has been some manifest illegality in the approach to the case or the appreciation of the evidence or where the conclusion of fact recorded by the Trial Judge is wholly unreasonable so as to be liable to be characterised as perverse and there has been a resultant miscarriage of justice The revisional jurisdiction of the High Court while dealing with an order of acquittal passed by the trial court is more narrow in its scope
It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial court that the High Court is empowered to set aside the order of the acquittal and direct a retrial of the acquitted accused
From the very nature of this power it should be exercised sparingly and with great care and caution
In KC Reddy vs State of Andhra Pradesh   this Court had occasion to consider the scope of the revisional jurisdiction conferred on the High Court in relation to orders of acquittal passed by the trial court and after referring to two earlier decisions of this Court reported in D Stenbens vs Nosibolla 1951 S R 284 and Jogendranath Jha vs Polailal Biswas  the legal position was explained thus These two cases clearly lay down the limits of the High Court s jurisdiction to interfere with an order of acquittal in revision in particular Jogendranath Jha s case 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 section 4394 and that the High Court cannot do this even indirectly by ordering re trial
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 section
4 by directing only a re trial of the appellants without convicting them and warned that the court retrying the case should not be influenced by any expression of opinion contained in the judgment of the High Court
In that connection this Court observed that there could be little doubt that the dice was loaded against the appellants of that case and it might prove difficult for any subordinate judicial officer dealing with the case to put aside altogether the strong views expressed in the judgment as to the credibility of the prosecution witness and the circumstances of the case in general
 196 This decision was subsequently followed by this Court in Akalu Ahir and others vs Ramdeo Ram  where this Court observed The unrestricted right of appeal from acquittal is specifically conferred only on the State and a private complainant is given this right only when the criminal prosecution was instituted on his complaint and then also subject to special leave by the High Court
It is further provided in section 439S Cr
PC that where no appeal is brought in a case in which an appeal is provided no proceedings by way of revision would be entertained at the instance of the party who could have appealed
The State Government therefore having failed to appeal cannot apply for revision of an order of acquittal
Again on revision the High Court is expressly prohibited from converting an acquittal into a conviction
Considering the problem facing the Court in this case in the background of this scheme the High Court when approached by a private party for exercising its power of revision from an order of acquittal should appropriately refrain from interfering except when there is a glaring legal defect of a serious nature which has resulted in grave failure of justice
It is not expected to act under sections 435439 Cr
PC as if it is a hearing on appeal in spite of the wide language under section 435 which empowers it to satisfy itself as to the correctness legality or propriety of a finding sentence or order and as to the regularity of any proceeding and also in spite of the fact that under section 439 it can exercise inter alia the power conferred on a court of appeal under section 423 Cr
The power being discretionary it has to be exercised judiciously and not arbitrarily
Judicial discretion as has often been said means a discretion which is informed by tradition methodised by analogy and disciplined by system
In Amar Chand Aggarwal vs Shanti Bose AIR1973 SC 799 this Court said that normally the jurisdiction of the High Court under section 439 Cr
PC is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on point of law and there has consequently been flagrant miscarriage of justice
In the background of the position just stated a private complainant can only claim a right in common with all aggrieved parties in a criminal proceedings to 197 invoke the revisional jurisdiction of the High Court for redress against miscarriage of justice arising from an erroneous order of acquittal The same position has been reiterated by this Court in Satyendra Nath Dutta and Anr
vs Ram Narain 1975 2 SCR 743
It is unfortunate that the High Court did not keep in mind the principles laid down in the aforesaid rulings regarding the limits of its revisional powers while dealings with an order of acquittal passed by the subordinate court
The mere circumstance that a finding of fact recorded by the trial court may in the opinion of the High Court be wrong will not justify the setting aside the order of acquittal and directing a re trial of the accused
In the present case the judgment of the learned Additional Sessions Judge did not suffer from any manifest illegality
The dominant justification of the order of acquittal recorded by the trial court is the view it took of the evidence of the two eye witnesses
Having carefully gone through the records of the case we are satisfied that it was a possible view and it cannot be characterised as illegal or perverse
It may well be that the learned Single Judge of the High Court was not inclined to agree with the said view on the basis of his independent scrutiny and appreciation of the evidence adduced in the case but that would not furnish any justification for interference in revision with the order of acquittal passed by the learned Additional Sessions Judge
Even in an appeal the Appellate Court would not have been justified in interfering with an acquittal merely because it was inclined to differ from the findings of fact reached by the trial court on the appreciation of the evidence
The revisional power of the High Court is much more restricted in its scope
We accordingly hold that the High Court has clearly transgressed the limits of its revisional jurisdiction under Section 4394 of Cr
PC in setting aside the order of acquittal passed by the Additional Sessions Judge and directing a re trial of the case
The appeal is therefore allowed the judgment of the High Court is set aside and the order of the acquittal passed by the trial court will stand restored
APJ Appeal allowed


Summary:
The appellants after trial by the Court of Additional Sessions Judge on a charge of murder under section 302 read with section 34 of the Indian Penal Code were acquitted giving them the benefit of doubt
The respondent a son of the deceased victim preferred a criminal revision petition before the High Court under section 397401 Cr
PC challenging the order of acquittal
A Single Judge allowed the revision petition set aside the acquittal of the appellants and remitted the case to the trial Court for re trial
The appellants appealed to this Court inter alia contending that the Single Judge of the High Court has transgressed the bounds of his revisional jurisdiction in reappreciating the evidence and setting aside their acquittal
Allowing the appeal  HELD 1
The High Court has clearly transgressed the limits of its revisional jurisdiction under section 4394 of Cr
PC in setting aside the order of acquittal passed by the Additional Sessions Judge and directing a re trial of the case
197F 2
Even in an appeal against an order of acquittal no interference will be made with the judgment of the trial Court except in rare and exceptional cases where there has been some manifest illegality in the approach to the case or in the appreciation of the evidence or where the conclusion of fact recorded by the Trial Judge is wholly unreasonable so as to be liable to be characterised as perverse and there bas been a 192 resultant miscarriage of justice
The revisional jurisdiction of the High Court while dealing with an order of acquittal passed by the trial court is more narrow in its scope
It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial court that the High Court is empowered to set aside the order of the acquittal and direct a re trial of the acquitted accused
From the very nature of this power it should be exercised sparingly and with great care and caution
195A C KC Reddy vs State of Andhra Pradesh   D Stenbens vs Nosibolla   Jogendranath Jha vs Polailal Biswas   Akalu Ahir and Ors
vs Ramdeo Ram 1974 I SCR 130 Amar Chand Aggarwal vs Shanti Bose   and Satyendra Nath Dutta and Anr
vs Ram Narain  followed
The mere circumstance that a finding of fact recorded by the trial court may in the opinion of the High Court be wrong will not justify the setting aside of the order of acquittal and directing a re trial of the accused
197C In the instant case the High Court did not keep in mind the principles regarding the limits of its revisional powers while dealing with the order of acquittal passed by the Additional Sessions Judge which did not suffer from any manifest illegality
The dominant justification of the order of acquittal recorded by the trial court is the view it took of the evidence of the two eye witnesses
Having carefully gone through the records of the case this Court is satisfied that it was a possible view and it cannot be characterised as illegal or perverse
It may well be that the Single Judge of the High Court was not inclined to agree with the trial Court s finding on the basis of his independent scrutiny and appreciation of the evidence adduced in the case but that would not furnish any justification for interference in revision with the order of acquittal passed by the Additional Sessions Judge
Even in an appeal the Appellate Court would not have been justified in interfering with an acquittal merely because it was inclined to differ from the findings of fact reached by the trial court on the appreciation of the evidence
The revisional power of the High Court is much more restricted in its scope
 197B F