Criminal Appeal No 94 Of 1987
From the Judgment and Order dated 821985 of the Cal cutta High Court in Crl
ANo 112 of 1984
Parijat Sinha and BD Ahmed for the Appellant
KC Aggarwala and PK Chakravarthy for the Respondents
The Order of the Court was delivered ORDER Special  leave granted
Arguments heard
The short question involved in this appeal is whether the High Court was justified in allowing the appeal pre ferred by the accused persons against their conviction under section 148 and s302 reads with section 149 of the Indian Penal Code 1860 without having the records of the Court of Sessions before it and without perusal of the evidence adduced by the prosecution
Normally this Court as a matter of practice is reluc tant to interfere with an order of acquittal recorded by the High Court at the instance of a private complainant but the circumstances of the case 307 are such that there is no other alternative for us but to interfere
We wish to mention that earlier the Court had in Special Leave Petition Crl No 202584 dated 15101984 allowed the petitioner complainant to withdraw the petition to move the High Court for review
The petitioner on 512
1984 filed an application for review but the High Court dismissed the same by its order dated 821985 on the ground that it had no power to review its judgment under the Code of Criminal Procedure 1973
The complainant has accordingly applied for special leave
The application is much belated but we have no other alternative but to interfere
The facts
Aggrieved by their conviction and sentence under section 148 and s302 read with section 149 of the Indian Penal Code by the Additional Sessions Judge 1st Court Burdwan by his judgment and sentence dated 1931984 the respondents preferred an appeal to the Calcutta High Court
On 2231984 a Division Bench of the High Court PC Barooah and section Chakravarty JJ admitted the appeal but did not grant bail to the respondents on that date and reserved them liberty to apply for bail later
It directed that the records be requi sitioned from the Court of Sessions
Within a fortnight thereafter ie on 1241984 the application for bail moved by the respondents came up for consideration
On that day the appeal was not listed for heating
The records which had been requisitioned from the Court of the Additional Sessions Judge had not been received and notices of the bail had not been issued
Instead of dealing with the application for bail the learned Judges appeared to have acted on an al leged concession made by the learned Public Prosecutor and acquitted the respondents
The learned Judges during the course of their order observed that the contention on behalf of the respondents in support of their bail application was that the alleged dying declaration made by the deceased Jagannath Ghose having been disbelieved by the learned Additional Sessions Judge no reliance could be placed on the testimony of the eye wit nesses as the place of incident was not visible from where they are alleged to have seen the occurrence and also that about 100 persons had surrounded the victim and as such it was not possible to definitely state that only the 8 accused ie the respondents were involved
After stating this the learned Judge observed The learned Public Prosecutor in his usual fairness has pointed out that although the witnesses spoke of 45 in juries the deceased had actually 27 308 and added that this was a fit case where benefit of doubt should be given to the accused and accordingly said that no useful purpose would be served in having a paper book pre pared and keeping the accused in further agony
In that view the learned Judges allowed the appeal set aside the conviction and sentence passed on the respondents on their conviction under section 148 and s302 read section 149 of the Indian Penal Code
We are constrained to observe that the procedure adopted by the High Court was no in consonance with the procedure established by law
Under s385 of the Code of Criminal Procedure it was obligatory for the High Court to fix a date for the hearing of the appeal and then send for the records of the Court of Sessions and hear the parties on merits
There was no warrant for the procedure adopted by the learned Judges in disposing of the appeal in this cha valler manner
It does no credit to any branch of adminis tration of justice that an appeal against conviction should be allowed without the Appellate Court having the records before it and without perusing the evidence adduced by the prosecution
To say the least there has been a flagrant carriage of justice
It may be as the High Court records in order that the learned Public Prosecutor conceded that there was no evidence but then the High Court had to satisfy itself upon perusal of the records that there was no reli able and credible evidence to warrant the conviction of the accused under section 148 and s302 read with section 149 of the Indian Penal Code
The result therefore is that the appeal succeeds and is allowed
The order of acquittal recorded by the High Court is set aside and we direct the High Court to admit the appeal to its file and dispose of it afresh notice to the parties and after the records requisitioned are received by it
After the respondents nos 2 9 are taken into custody they may apply to the High Court for being enlarged on bail
The High Court will deal with the application on its merits
SR Appeal allowed


Summary:
Respondents 2 to 9 preferred an appeal to the Calcutta High Court against their conviction and sentence dated 193
On 223
1984 a Division Bench of the High Court admitted the appeal but did not grant bail on that date
Within a fortnight thereafter ie on 124
1984 the application for bail moved by the Respondents came up before the Bench for consideration
The appeal was not set for hearing on that day
The records which had been requisi tioned from the Court of the Additional Sessions Judge had not been received and notices of the bail had not been issued
Acting on an alleged concession made by the Public Prosecutor the Bench allowed the appeal itself and acquit ted the respondents
The appellant complainant s Special Leave Petition No 202584 dated 1510
1984 against the said orders of acquittal was allowed to be withdrawn to move the High Court for review
The appellants  review petition dated 512
1984 having been dismissed on the ground that the High Court had no power to review its judgment under the Code of Criminal Procedure 1973 the appellant has now come in appeal by special leave
Allowing the appeal the Court HELD 1
Normally the Supreme Court as a matter of practice is reluctant to interfere with an order of acquit tal recorded by the High Court at the instance of a private complainant but the circumstances of the case are such that there is no other alternative but to interfere in this 306 case
The procedure adopted by the High Court was not in consonance with the procedure established by law and has resulted in flagrant miscarriage of justice
306H 307A Under Section 385 of the Code of Criminal Procedure 1973 it was obligatory for the High Court to have fixed a date for the hearing of the appeal and sent for the records of the Court of Sessions and thereafter hear the parties on merits
It does no credit to any branch of administration of justice that an appeal against conviction or acquittal should be allowed without the Appellate Court having the records before it and without pursuing the evidence adduced by the prosecution
Assuming that the learned Public Prose cutor conceded that there was no evidence the High Court had time to satisfy itself upon perusal of the record that there was no reliable and credible evidence to warrant the conviction of the accused under section 148 and s302 read with section 149 of the Indian Penal Code
308B E