THE HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO. 1921 OF 2004 AND CRIMINAL REVISION CASE NO.1379 of 2004 COMMON JUDGMENT: Both the matters posted before this Court as per the orders of the Hon’ble the Chief Justice dt.27.11.2012 in view of the conflicting decisions of this Court. Both the Criminal Revision Case and the Criminal Appeal were arising out of the acquittal of the accused in S.C.No.368 of 2002 by the Assistant Sessions Judge, Gurajala for an offence under Section 354 of IPC. Against the said acquittal of the accused, the de facto-complainant victim has filed the Crl.R.C.No.1379 of 2004 and the State has filed the Crl.A.No.1921 of 2004. The Criminal Revision Case No.1379 of 2004 was dismissed by this Court on 13.12.2010 subsequently the Criminal Appeal No.1921 of 2004 came up before this Court for hearing and the same was allowed and the accused was found guilty for the offence under Section 354 of IPC and sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.500/-, in default to undergo simple imprisonment for three months. Noticing the conflicting decisions, the Assistant Sessions Judge, Gurajala has sought for clarification of the Court for execution of the sentence. Both the matters placed before the Hon’ble the Chief Justice and the Hon’ble the Chief Justice has directed to post the matter before this Court for consideration. The conflicting of decisions arose as the factum of disposal of Criminal Revision Case was not brought to the notice of this Court either by the Assistant Public Prosecutor or the respondent’s counsel even though both appeared in the revision and the appeal. The Criminal Revision Case was disposed of on 13.12.2010 after giving notice to the Public Prosecutor and the accused counsel by holding that “the scope of revision against the acquittal is very much limited. Even if this Court comes to the conclusion that it is a fit case for interference the maximum that can be done is to remand the matter to the trial Court for fresh disposal in accordance with law and this Court has no jurisdiction to reverse the said finding of acquittal to that of a conviction. Further the alleged incident took place on 21.05.2002 i.e. about eight years back. In those circumstances, this Court is not inclined to interfere with the said finding of acquittal recorded by the trial Court”. Subsequently, the Criminal Appeal has come up for hearing on 23.02.2012 and after hearing the learned Public Prosecutor and also the learned counsel for the respondent/accused, the judgment was reserved and the judgment was pronounced on 02.03.2012 allowing the appeal and convicted the accused for the offence under Section 354 of IPC and sentenced him to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.500/-, in default to undergo simple imprisonment for three months. Now it has to be examined whether the judgment passed in Criminal Appeal is to be recalled in view of the earlier disposal of the Crl.R.C.No.1379 of 2004 by this Court filed against the same judgment of the trial Court. The similar situation was considered by the Apex Court in Bindeshwari Prasad Singh alias B.P. Singh and others v. State of Bihar (now Jharkhand) and another[1]. In the above decision, the appellants therein were tried by the Sessions Judge, Dhanbad in Sessions Trial No.193 of 1992 for the offence under Sections 302 and 302 read with 114 of IPC. The Sessions Judge by judgment dt.21.01.1994 acquitted the appellants of the charges leveled against them, finding that the prosecution had not proved its case beyond reasonable doubt. The appeal preferred by the State against the acquittal of the appellants was dismissed by the High Court by its order dt.22.11.1994 on the ground of limitation. The revision was preferred by the informant to the High Court under Section 401 of Cr.P.C., was allowed by order dt.06.06.2001 and the judgment of acquittal was set aside and the case was remitted to the Sessions Judge for retrial in accordance with law. Aggrieved by the said order of revision, the matter came up before the Apex Court and the Apex Court held that dismissal of State’s appeal against the acquittal even on the ground of limitation, gives finality to the judgment of trial Court and in such a case exercise of revisional jurisdiction by High Court against the order of acquittal at the instance of a private party would not be proper. The Apex Court further held that the High Court was not justified in interfering with the order of acquittal in exercise of its revisional jurisdiction at the instance of informant. It may be that the High Court on appreciation of the evidence on record may reach a conclusion different from that of the trial Court. But that by itself is no justification for exercise of revisional jurisdiction under Section 401 of Cr.P.C. against a judgment of acquittal. The judgment of the trial Court cannot be said to be perverse. No defect of procedure has been pointed out. There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial vitiating the trial itself. At best the High Court thought that the prosecution witnesses were reliable while the trial Court took the opposite view. In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not reappreciate the evidence to reach a finding different from the trial Court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted. It is further observed that the jurisdiction of the High Court in dealing with an appeal against acquittal preferred under Section 374 of Cr.P.C. is much wider than the jurisdiction of the revisional Court exercising jurisdiction under Section 401 of Cr.P.C. against an order of acquittal at the instance of a private party. All grounds that may be urged in support of the revision petition may be urged in the appeal, but not vice versa. The dismissal of an appeal preferred by the State against the order of acquittal puts a seal of finality on the judgment of the trial Court. In such a case, it may not be a proper exercise of discretion to exercise revisional jurisdiction under Section 401 of Cr.P.C. against the order of acquittal at the instance of a private party. In subsequent decision in K.Ramachandran v. V.N.Rajan and another[2], a similar issue has come up for consideration before the Apex Court. In the above said decision, the appellant was tried for the charges under Sections 302 and 201 of IPC. The Sessions Judge has acquitted the accused for the above said charges. The de facto complainant therein has filed a revision against the said acquittal and the same was admitted by the High Court. During the pendency of the revision, the State Government has preferred an appeal against the acquittal, which was delayed by 801 days. The said delay condonation application was considered by the Division Bench of the High Court and dismissed the same by order dt.05.03.2003. At the time of consideration of delay condonation in filing the appeal by the High Court, it was not pointed out by the Government Advocate on criminal side, who appeared for the State, that a revision has already been filed and was pending against the acquittal, at the instance of the father of the victim. Now, in fact the State Government was very much a party in that revision and was also served. However, since the Division Bench was totally unmindful of the said revision, it merely dismissed the condonation of delay application. Subsequently, the revision came up before the Single Judge of the High Court, who allowed the revision and directed reconsideration of the matter on the basis of evidence already on record. Against the said order, the matter came up before the Apex Court. The Apex Court has held that they cannot find fault with the learned Single Judge in proceeding ahead with the revision as it was never brought to the notice of the learned Single Judge that the appeal against the same judgment which was impugned in the revision had already been filed. It is for the appellant/accused to point out that on the date when the revision was heard the fate of the criminal appeal filed impugning the same judgment was sealed because of the refusal on the part of the Division Bench to condone the delay. In fact, it was upto the Government Pleader who was a common party in both the revision and the appeal to point out to the learned Single Judge about the dismissal of the condonation of delay application. Very strangely, the Government Pleader did not do so. The Apex Court has held that once the appeal at the instance of the State has been dismissed, the complaint of the State could not ask for revision of the judgment and observed that even revision against the acquittal preferred by a private party, there is a very little scope to interfere. Here was a case where the learned Single Judge disapproved of the appreciation of the evidence by the trial Court. It is not as if the trial Court had ignored any important piece of evidence or it had chosen not to appreciate the same. It is also not a case where there was some serious defect in the trial affecting the merits of the matter. Further, the Court trying the accused did not lack the jurisdiction also to try and convict or acquit the accused. All that the High Court has observed is that the appreciation of evidence by the trial Court was not correct and the trial Court should not have taken the view that it has taken of the evidence and thereby allowed the appeal and set aside the judgment of the revisional Court. In the above said two decisions, the Apex Court has examined the powers of the revisional Court in interfering with the acquittal of the trial Court and held that the scope of revision is very limited and the revisional Court can interfere with the finding of the acquittal in a revision in the following categories of cases: i. where the trial Court has no jurisdiction to try the case but has still acquitted the accused; ii. where the trial Court has wrongly shut out evidence which the prosecution wished to produce; iii. where the appellate Court has wrongly held the evidence which was admitted by the trial Court to be inadmissible; iv. where the material evidence has been overlooked only 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. In the above said decision, it was also held that the jurisdiction of the High Court in dealing with the appeal against the acquittal preferred under Section 374 of Cr.P.C. is much wider than the jurisdiction of the revisional Court in exercising the powers under Section 401 of Cr.P.C. In State of Rajasthan v. Sohan Lal[3], the Apex Court held that “while dealing with an appeal against acquittal High Court entitled and obliged to scan through, and if need be, reappreciate the entire evidence”. In State of Punjab v. Ajaib Singh[4], the Apex Court held that “in an appeal against acquittal, the appellate Court is entitled to reappreciate the evidence on record, unless the acquittal is found to be unreasonable or perverse and interference therewith called for.” I n Chandrappa v. State of Karnataka[5], the Apex Court while enumerating the general principles regarding the powers of the Apex Court while dealing with the appeal against the order of acquittal, has held that the appellate Court has full power to review, reappreciate and reconsider the entire evidence upon which the order of acquittal is founded. In Gamini Bala Koteswara Rao v. State of A.P.[6], the Apex Court held that it is open to the High Court to reappraise the evidence and conclusions drawn by the trial Court but only in a case when the judgment of the trial Court is stated to be perverse. In Brahm Swaroop and another v. State of Uttar Pradesh[7], the Apex Court has held that “it is well established in law that the appellate Court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate Court may be the more probable one. While dealing with a judgment of acquittal, the appellate Court must consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable.” Therefore, in view of the above said decisions, the jurisdiction of the High Court while dealing with an appeal against acquittal is entitled to reappreciate the entire evidence on record and come to a different conclusion when the findings recorded by the trial Court are perverse and unreasonable. In the present case, the revision preferred at the instance of the victim was disposed of holding that the scope of revision against the accused is very limited. In Criminal Appeal No.1921 of 2004 preferred by the State, this Court by reappreciating the evidence available on record, found the findings recorded by the learned Sessions Judge are perverse and are not based on material evidence available on record and hence the said findings recorded by the Assistant Sessions Judge are set aside and the accused is found guilty for the offence under Section 354 of IPC. Both the revisional Court and this Court have exercised the jurisdiction conferred under the Code of Criminal Procedure. But the unfortunate situation has arisen due to the fault of the Public Prosecutor and the counsel appearing for the respondent/accused in not bringing to the notice of this Court about the earlier disposal of the Criminal Revision Case by this Court against the same judgment and the Registry is also at fault in not posting the appeal along with the revision as by the date of disposal of the revision, the appeal was already pending before this Court. Since both the matters were disposed of in accordance with law by exercising the jurisdiction conferred under the Code of Criminal Procedure, the judgment of this Court cannot be recalled. Moreover, recalling of the order of this Court amounts to review of the judgment passed by this Court, which is not conferred on this Court under the Code of Criminal Procedure. In the decision K.Ramachandran v. V.N.Rajan and another, referred 2nd supra, held as under: “the Apex Court has also considered the power of review and observed that if the judgment was rendered final by the Division Bench of the High Court then there could not be any subsequent order to the contrary by the Single Judge even if the effect of the pendency of the revision was not brought to the notice of the Division Bench. There is no review power under the Criminal Procedure Code to the criminal Court including the High Court. Such a review power exists only in this Court. As such, once the High Court had passed the order refusing the condonation of delay of appeal and thereby awarding the finality to the trial Court’s judgment, that order could be considered and upset only by this Court on a proper appeal having been filed in this Court by the State Government. As against the State Government, the order of the trial Court acquitting the appellant-accused had become final. Therefore, the only course left open then in law was to challenge that order refusing to condone the delay in filing appeal against acquittal.” Therefore, this Court has no jurisdiction to review the earlier judgment passed by this Court even it is in conflict with the order of the revisional Court. Therefore, both the orders passed in the Criminal Revision Case and the judgment in Criminal Appeal hold good as they were passed in exercise of the jurisdiction conferred under the Code of Criminal Procedure. Hence, the judgment passed in Criminal Appeal cannot be recalled by this Court and no further orders can be passed by this Court. _______________________ JUSTICE P. DURGA PRASAD Date: 19-02-2013 MR THE HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO. 1921 OF 2004 AND CRIMINAL REVISION CASE NO.1379 of 2004 Date: 19-02-2013 MR [1] (2002) 6 SCC 650 [2] (2009) 14 SCC 569 [3] (2004) 5 SCC 573 [4] (2005) 9 SCC 94 [5] (2007) 4 SCC 415 [6] (2009) 10 SCC 636 [7] (2011) 6 SCC 288