CRM No.58274 of 2009 and CRR No.2995 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM No.58274 of 2009 and CRR No.2995 of 2009 Date of decision: 09.02.2011 Kauro Bai ....Petitioner Versus State of Punjab and others ....Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present: - None for the revisionist. Ms. Bhavna Gupta, DAG, Punjab. 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? ***** ALOK SINGH, J (ORAL) This is a revision filed against the judgment dated 2.2.2009 passed by Judicial Magistrate, Ist Class, Ferozepur, thereby acquitting the accused for an offence under Sections 286/506/341/431/447 of the Indian Penal Code, Police Station Mamdot. Brief facts of the present case are that on 1.9.2003 Kauro Bai wife of Balkar Singh gave an application to D.C. which was marked to SSP. SSP directed to register a case and to investigate. Thereafter ASI Sardool Singh registered a case FIR No.147 dated 5.9.2003 under Sections 283, 506, 341, 431, 447 IPC against Sher Singh etc. Investigation was handed over to ASI Sukhwant Singh. The contents of the application were to take legal action against Joginder singh son of Sher Singh. She further stated that she is resident of Jhughe Sunder Wale Dakhlki Bamba Hajji. They have cultivable land in village CRM No.58274 of 2009 and CRR No.2995 of 2009 -2- Kamaldin Niajee. The land of the accused persons also adjoins their land. The accused have constructed residential room in their land and they have constructed some room in a public passage. When they were constructing the house in the government land they were stopped from doing so because the said land passes through their land and goes ahead. By way of construction they were obstructing the passage of the complainant and other persons. Thereafter the Panchayat was convened as a result of which the accused persons gave them passage from the backside and a writing to this effect was written on 23.11.2002. The same was witnessed by Ganga Singh Sarpach and Gajjan Singh Lambardar. The same was on a stamp papers of Rs.15/-. Now the accused persons have forcibly cultivated the passage and are threatening them that in case they move any application before police, court or any higher officer they would be killed and they would take forcible possession of the land of the complainant. She has given an application in P.S. Mamdot but no justice was given to them. They are scared by the threats given by the accused persons and apprehend loss at the hands of the accused persons to any of the family members. The wives of the accused persons i.e. Vero Bai and Gango Bai are also threatening them openly that in case they pass through the said passage they would kill them. Whenever they go on a tractor to plough their land the accused persons and their wives stop them from doing so and they also threaten that the will puncture the tyre of the tractors. The accused persons also forced them to go back. Spot was inspected by ASI Sukhwant Singh where the accused had constructed the house as per the allegations of the complainant. Site plan was prepared. Statements of witnesses were CRM No.58274 of 2009 and CRR No.2995 of 2009 -3- recorded and after formal investigation of the case challan against Gurdeep Singh was presented in the juvenile court and challan against other accused was presented in the court after completion of formal investigation. In order to prove its case prosecution examined PW1 Kauro Bai, PW2 Balkar Singh, PW3 Surjan Singh, PW4 Puran Singh, PW5 HC Sucha Singh, PW6 Jaswant Singh, PW7 Basti Ram Patwari, PW8 Puran Singh. Thereafter, evidence of the prosecution was closed by order. State of accused under Section 313 Cr.P.C. was recorded by putting all the incriminating evidence appearing against them to which they denied alleging the same to be incorrect and pleaded their false implication in this case and closed the evidence without examining any witness. Learned Magistrate has made following observations: - “Therefore, it is evident that prosecution has failed to prove the construction made on the passage or any obstruction created by the accused. PW1, PW2, PW3 and PW8 have stated that obstruction was created by the accused persons while they were passing through the said passage after the Panchayati compromise. However, no date etc. has been mentioned by them as and when the obstruction was created. The prosecution has further placed on record Ex.P1 which has been placed on record by Balkar Singh, however, there is no signatures of said Balkar Singh on the said compromise. Surjan Singh who has thumb marked the said document has appeared as PW3, but he is the paternal uncle of PW2 and it cannot be said that he is an independent witness. No person from the Panchayat has been produced nor the original of Ex.P1 has been produced on the file. As already CRM No.58274 of 2009 and CRR No.2995 of 2009 -4- discussed above PW8 in his cross examination has admitted that the complainant and her family members have sold the land and there is no dispute with the Vendees. In case the accused persons had obstructed the passage or had made construction thereon then certainly vendees would also have problem to go in their land. Except for the family members of the complainant no other witness has been produced by the prosecution. So much so even the Investigation Officer has not stepped into the witness box to depose regarding the details of the case and investigation conducted by him. Accordingly the prosecution has miserably failed to prove its case against the accused persons. Hence, the accused persons are acquitted of the charge framed against them.” Present revision was filed on 21.4.2009 with delay of 99 days in filing the revision and for the first time was listed before the Court for admission on 8.1.2010, however, none was present on behalf of the petitioner to press the petition. Thereafter, petition was listed time to time, but none was present on any of the date on behalf of the petitioner. Delay in filing the revision has not been explained properly. Hon'ble Apex Court in the matter of Akalu Ahir reported in 1973(3) SCC 583 in para 8 has observed as under: - “...........the 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 only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial court in the court of trial, that the High Court is CRM No.58274 of 2009 and CRR No.2995 of 2009 -5- empowered to set aside the order of acquittal and direct the retrial of the acquittal accused persons. From the very nature of this power, it should be exercised in exceptional cases and with great care and caution. Trials are not to be lihtly set aside when such order expose the accused persons to a fresh trial with all its consequential harassment. This matter is not res integra and had indeed been dealt with by this court at least in the four cases noticed by the High Court. ...............It makes all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering re-trial. No doubt, in the opinion of this court no criteria for determining such exceptional cases which would cover all contingencies for attracting the High Court's power of ordering retrial can be laid down. This Court, however, by way of illustration, indicated the following categories of cases which would justify the High Court in interfering with a finding of acquittal in revision. i. Where the trial court has no jurisdiction to try the case, but has still qcquitted the accused; ii. Where the trial court has wrongly shut out evidence which the prosecution wishes to produce; iii. Where the appellate court has wrongly held the evidence which was admitted by the Trial Court to the inadmissible; iv. Where the material evidence has been overlooked only (either) by the trial court or by the appellate court; and v. Where the acquittal is based on the compounding of the offence which is invalid under the law.” CRM No.58274 of 2009 and CRR No.2995 of 2009 -6- These categories were, however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of acquittal.” In view of the dictum of the Hon'ble Apex Court, in the humble opinion of this Court, in a revision filed by the complainant against the order of acquittal, revisional Court has no jurisdiction to re- appreciate the evidence. However, revisional Court shall be within its jurisdiction to see as to whether trial Court has shut out or has overlooked the evidence which could clarify the issue. Revisional Court can further seek manifest error of law or jurisdictional error or procedural error committed by the trial Court amounting to failure of justice. In the present case from the perusal of the record, I am satisfied that learned trial Court has not shut out or overlooked any evidence, which could prove offence against the accused. I do not find any manifest error of law or jurisdictional error or procedural error on the part of the trial Court resulting in wrong judgment. In the opinion of this Court, judgment impugned does not require any interference. Dismissed on the ground of delay as well as on merit. (Alok Singh) Judge February 09, 2011 R.S.