Jammu & Kashmir High Court

Yousuf vs State Of J&K And Another on 11 October, 2021

              IN THE HIGH COURT OF JAMMU AND KASHMIR
                             AT JAMMU
                                 ...
                                 CRR No.04/2018
                                  IA No.1/2018

                                                         Reserved on: 13.07.2021
                                                      Pronounced on: 11.10.2021


Yousuf                                                         ...Petitioner(s)

              Through: Mr. Rahul Raina, Advocate.

Vs.

State of J&K and another                                    ....Respondents(s)

              Through: Mr. Vishal Bharti, Dy. AG for R-1
                       Mr. Sidhant Gupta, Advocate for R-2

CORAM:
    HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

                                     JUDGMENT

1) This revision petition is directed against the judgment dated

15.12.2017 passed by the learned Chief Judicial Magistrate, Udhampur

[hereinafter referred to as "the Trial Court"] in Challan titled State v.

Begum, arising out of FIR No.60/2014, whereby respondent No.2, a

juvenile, has been exonerated from the enquiry and absolved from the

person and surety bonds, on the following grounds:

i) The impugned judgment is unsustainable in law, as the Trial Court exonerated the delinquent juvenile merely on technical grounds.

ii) The Trial Court after noticing various defects in the investigation conducted by the police, should have directed further investigation in the matter instead of exonerating respondent No.2.

iii) The investigation in the case has been conducted in a biased manner because despite informing the Investigating Officer that son of the petitioner has been murdered by Irshad Ali, Sher Ali, Bahadar, Miyon and others, they were not apprehended by the police.

2) Briefly stated, the facts leading to the filing of this revision petition

are that on 05.07.2014, Police of Police Post Ghordi came to know from

reliable sources that a dead body was lying in the thoroughfare. The

deceased was identified as Shattu S/o Yousaf, Caste Gujjar R/o Gadian

Danaas Teshil Chanani. The dead body was taken into custody. Post-mortem

on the dead body was got conducted. A docket in this regard was sent by the

Incharge Police Post Gordhi, to S.H.O. Police Station, Ramnagar. Upon

receipt of information, FIR No.60/2014 under Section 302 RPC was

registered at Police Station Ramnagar and the investigation set in motion.

The investigation had been conducted by Inspector Deepak Pathania, the

then SHO, Police Station, Ramnagar. The delinquent juvenile was taken into

custody on 29.08.2014. On disclosure, cloth string and one shawl, which

was used by the accused in committing the murder, were seized. After

completing the investigation, charge sheet for enquiry was presented before

the Trial Court on 01.10.2014.

3) The accused pleaded not guilty and claimed to be tried. The

prosecution examined as many as 19 prosecution witnesses out of the listed

27 witnesses. The accused did not lead any evidence in defence. The Trial

Court, after evaluating the prosecution evidence, has concluded that the

prosecution has utterly failed to prove the guilt of the delinquent juvenile

beyond the pale of doubt and, accordingly, exonerated her from the enquiry

with the following observations:-

"The delinquent juvenile is the age of 17 years at the time of occurrence. The physical appearance of the delinquent juvenile at that time is weak.

There is a distinction between physical age and mental age. The delinquent juvenile belongs to the Nomada family viz. Gujjar. For argument sake, a Nomada residing in jungles of far flung area of Ramnagar which consists of mountainous terrain is subjected to the homicide of well built person. The statement recorded by the IO reveals that there is no scuffle mark on the body of the deceased. It is natural death if someone is strangulated and tied forcibly, certainly, there will be a resistance and bruises mark over the body of the deceased, those are not appearing. The IO has stated that delinquent juvenile has killed the deceased with the string. If the deceased was strangulated with the string, certainly it needs the force and there shall be an alarming voice of the deceased noticed by the people. The place of occurrence is an isolated place and no one has stated that delinquent juvenile has ever seen lastly with the deceased. Noteable link is missing. The physical age apparent in the charge sheet is 17 years and there is not an iota of evidence which suggests that delinquent juvenile was ever residing with the deceased and was ever seen with the deceased before the death crept a doubt in the mind of the court for fair investigation conducted by the IO. It is further apt to observe that if the deceased was strangulated, his eyes appears to be closed in photograph, should have been opened. In the present case, there is apprehension that the deceased Shattu has not been killed by the delinquent juvenile. The circumstances appended does not warrants to draw an inference against the delinquent juvenile. The IO has omitted to record the statement of father of the deceased, who has categorically stated that the deceased was murdered by Irshad, Bashir etc. Even the brother of the deceased has also stated that Bashir, Irshad and Bahadur had killed his brother. The relative witnesses though interested in nature indicates that some other persons had killed the deceased Shattu but during the course of enquiry, this aspect cannot lost sight of. The IO has ignored the statement of brother and father of the deceased for the reasons best known to him. This case certainly warrants to be re-investigated in pursuance of the statement of the father of the deceased and brother of the deceased. The IO owes an explanation for non impleading of the persons detained by him in the charge sheet and how come they have been released from the custody by according the benefit of insufficient evidence. The answer of the IO shall be that the delinquent juvenile has made the disclosure statement of commission of offence which is recorded in dehors of the procedure contemplated under juvenile Justice (Care and Protection of Children) Act and Rules 2014 there to. Taking into consideration all the pros and cons of the case, prosecution has utterly failed to prove the guilt of the delinquent juvenile beyond the pale of doubts. The delinquent juvenile is exonerated from the enquiry and also absolved from the personal and surety bonds."

4) Assailing the judgment of the learned Trial Court, learned counsel for

the petitioner submits that the judgment of the learned Trial Court be set

aside directing further investigation in a fair and transparent manner in the

matter.

5) Per contra, learned counsel for the respondents while supporting the

judgment of Trial Court has submitted that the judgment of the Trial Court is

a well-reasoned judgment and does not call for any interference by this

Court in exercise of revisional jurisdiction. It is argued that there is no

illegality in the order passed by the Trial Court and that the Trial Court has

passed the order impugned after appreciating the entire evidence before it.

While questioning the maintainability of the revision against the order of

acquittal, learned counsel has stated that revision has a limited scope and

that the High Court can interfere only when the order under challenge is

perverse or has caused any illegality.

6) Heard learned counsel for the parties and perused the record.

7) The powers of revision of the High Court are defined in Section 439

of the Code of Criminal Procedure. Therefore, to appreciate the controversy

involved in this petition, it would be apt to reproduce Section 439 Cr.P.C.,

which reads thus:-

"439. High Court's powers of revision.--(1) In the case of any proceedings the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of appeal by sections 423, 426, 427 and 428 or on a Court by section 338, and may enhance the sentence ; and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 429.

(2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence.

(3) Where the sentence dealt with under this section has been passed by a Magistrate acting otherwise than under section 34, the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court, the accused has committed, than might have been inflicted for such offence by a l[Judicial Magistrate of the first class].

(4) Nothing in this section shall be deemed to authorise the High Court to convert a finding of acquittal into one of conviction.

(5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.

(6) Notwithstanding anything contained in this section, any convicted person to whom an opportunity has been given under sub-section (2) of showing cause why his sentence should not be enhanced shall, in showing cause, be entitled also to show cause against his conviction."

8) From a bare perusal of afore-quoted provisions of Section 439

Cr.P.C., it is quite evident that scope of revision is very limited and

revisional jurisdiction can be exercised only in certain contingencies. Further

in terms of Sub-Section (4) of Section 439, High Court cannot convert a

finding of acquittal into one of conviction.

9) Since scope of criminal revision is very limited, the question that falls

for determination is "whether the High Court can interfere with the order of

acquittal in revisional jurisdiction". To deal with the aforesaid question, it

would be profitable to notice certain judgments of the Supreme Court on the

subject.

10) In Akalu Ahir v. Ramdeo Ram, (1973) 2 SCC 583, the Supreme

Court has held that:

"8. 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 439(5) CrPC, 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 435/439 CrPC 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 CrPC. The power being discretionary, it has to be exercised judiciously and not arbitrarily. ..."

11) In Johar v. Mangal Prasad, (2008) 3 SCC 423, the Supreme Court

has observed that:

"23. In Mahendra Pratap Singh v. Sarju Singh [AIR 1968 SC 707 : (1968) 2 SCR 287] this Court stated the law thus: (AIR pp. 708-09, para 8)

"8. The practice on the subject has been stated by this Court on more than one occasion. In D. Stephens v. Nosibolla [AIR 1951 SC 196 : 1951 SCR 284] only two grounds are mentioned by this Court as entitling the High Court to set aside an acquittal in a revision and to order a retrial. They are that there must exist a manifest illegality in the judgment of the Court of Session ordering the acquittal or there must be a gross miscarriage of justice. In explaining these two propositions, this Court further states that the High Court is not entitled to interfere even if a wrong view of law is taken by the Court of Session or if even there is misappreciation of evidence. Again, in Logendranath Jha v. Polai Lal Biswas [AIR 1951 SC 316 : 1951 SCR 676] this Court points out that the High Court is entitled in revision to set aside an acquittal if there is an error on a point of law or no appraisal of the evidence at all. This Court observes that it is not sufficient to say that the judgment under revision is „perverse‟ or „lacking in true correct perspective‟. It is pointed

out further that by ordering a retrial, the dice is loaded against the accused, because however much the High Court may caution the subordinate court, it is always difficult to re-weigh the evidence ignoring the opinion of the High Court. Again in K. Chinnaswamy Reddy v. State of A.P. [AIR 1962 SC 1788 : (1963) 3 SCR 412] it is pointed out that an interference in revision with an order of acquittal can only take place if there is a glaring defect of procedure such as that the Court had no jurisdiction to try the case or the Court had shut out some material evidence which was admissible or attempted to take into account evidence which was not admissible or had overlooked some evidence. Although the list given by this Court is not exhaustive of all the circumstances in which the High Court may interfere with an acquittal in revision it is obvious that the defect in the judgment under revision must be analogous to those actually indicated by this Court."

12) In K. Ramachandran v. V.N. Rajan, (2009) 14 SCC 569, the

Supreme Court has observed with respect to cases which would justify the

High Court in interfering with the finding of acquittal in revision that:

"40. This question has been considered in the celebrated judgment of Akalu Ahir v. Ramdeo Ram [(1973) 2 SCC 583 : 1973 SCC (Cri) 903] , where, after considering the judgments of D. Stephens v. Nosibolla [AIR 1951 SC 196 : 1951 SCR 284] , Logendranath Jha v. Polai Lal Biswas [AIR 1951 SC 316 : 1951 SCR 676] , K. Chinnaswamy Reddy v. State of A.P. [AIR 1962 SC 1788 : (1963) 3 SCR 412] and Mahendra Pratap Singh v. Sarju Singh [AIR 1968 SC 707 : (1968) 2 SCR 287] this Court came out with categories of cases which would justify the High Court in interfering with the finding of acquittal in revision: (Akalu Ahir case [(1973) 2 SCC 583 : 1973 SCC (Cri) 903] , SCC pp. 587-88, para 8) "(i) where the trial court has no jurisdiction to try the case, but has still acquitted the [appellant-]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 (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."

Of course, these categories were declared by this Court to be illustrative and this Court observed that other cases of similar nature could also be properly held to be exceptional in nature where the High Court could justifiably interfere with the order of acquittal."

13. In Sheetala Prasad v. Sri Kant, (2010) 2 SCC 190, the Supreme Court has observed that:

"12. The High Court was exercising the revisional jurisdiction at the instance of a private complainant and, therefore, it is necessary to notice the principles on which such revisional jurisdiction can be exercised. Sub-section (3) of Section 401 of the Code of Criminal Procedure prohibits conversion of a finding of acquittal into one of conviction. Without making the categories exhaustive, revisional jurisdiction can be exercised by the High Court at the instance of a private complainant (1) where the trial court has wrongly shut out evidence which the prosecution wished to produce, (2) where the admissible evidence is wrongly brushed aside as inadmissible, (3) where the trial court has no jurisdiction to try the case and has still acquitted the accused, (4) where the material evidence has been overlooked either by the trial court or the appellate court or the order is passed by considering irrelevant evidence, and (5) where the acquittal is based on the compounding of the offence which is invalid under the law.

13. By now, it is well settled that the revisional jurisdiction, when invoked by a private complainant against an order of acquittal, cannot be exercised lightly and that it can be exercised only in exceptional cases where the interest of public justice requires interference for correction of manifest illegality or the prevention of gross miscarriage of justice. In these cases, or cases of similar nature, retrial or rehearing of the appeal may be ordered."

14) From the decisions discussed herein above, it can be inferred that it is

open to this court in the revisional jurisdiction to interfere with the order of

the acquittal of the lower court, if it is found that the order is vitiated on

account of illegality, impropriety or incorrectness and thereby causing

serious miscarriage of justice. Of course, this Court cannot convert any

finding of acquittal into one of conviction nor can it reappreciate the

evidence and substitute its own view. From the legal position discussed

herein above, it becomes abundantly clear that the revisional jurisdiction,

invoked by a private party against an order of acquittal recorded by the Trial

Court, can be exercised only in certain exceptions such as, where the Trial

Court has no jurisdiction to try the case, where the Trial Court has wrongly

shut out the evidence which the prosecution wished to produce, where