Punjab-Haryana High Court
Zile Singh And Another vs Sunil Kumar And Others on 17 November, 2022
CRR-94-2019 (O&M) -1-
223
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRR-94-2019 (O&M)
Date of Decision: 17.11.2022
ZILE SINGH AND ANOTHER ......... Petitioners
Versus
SUNIL KUMAR AND OTHERS ..... Respondent
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present : Mr. Sanjiv Kumar Aggarwal, Advocate
for the petitioners.
****
JAGMOHAN BANSAL, J. (Oral)
1. The petitioner through instant petition is seeking setting
aside of judgment dated 10.01.2013 whereby Sub Divisional Judicial
Magistrate, Safidon acquitted respondents No.1 to 5 and judgment dated
16.09.2016 whereby Additional Sessions Judge, Jind dismissed appeal of
the petitioner.
2. The brief facts emerging from record are that petitioners
were in possession of 17 kanals and 11 marlas land, however, the
mutation was not recorded in their favour. Taking advantage of the
position, previous owner namely Prem Singh transferred aforesaid land
in favour of his sons. The transferee namely sons of Prem Singh
mortgaged the land and borrowed a sum of Rs.4.5 lakhs from a bank. The
petitioner initiated civil proceedings by way of suit against Prem Singh
and his sons. The proceedings culminated into Regular Second Appeal
No.1431 of 2016 which came up for consideration before this Court on
25.10.2018. A Co-ordinate Bench of this Court vide order dated
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25.10.2018 (Annexure P-1) dismissed appeal of family members of Prem
Singh and allowed cross-objections of the present petitioner. A decree
for declaration was passed in favour of present petitioner holding that
she is owner in possession of the property. It was further observed that
release deed as well as mortgage deed are not binding on her rights.
3. The petitioner on the one hand initiated civil proceedings
against opposite party and on the other hand lodged FIR under Sections
420, 423, 467, 468 and 471 read with Section 120-B of IPC. The police
investigated the matter and filed its report under Section 173 Cr.P.C. The
Trial Court after framing charges proceeded with trial, however, vide
order dated 10.01.2013 came to a conclusion that prosecution has failed
to prove forging of document on the part of accused persons with mala-
fide intention to cheat the complainant. Extending the benefit of doubt,
the Trial Court acquitted all the accused and exonerated them from
charges framed under Sections 420, 423, 467, 468 and 471 read with
Section 120-B of IPC.
4. The petitioner feeling aggrieved from judgment of learned
Trial Court preferred an appeal before Sessions Court which came up for
consideration before learned Additional Sessions Judge, Jind who vide
impugned order dated 16.09.2016 dismissed the appeal of the petitioner.
5. Learned Trial Court has found that prosecution has failed to
prove guilt of the respondents. The Appellate Court has further upheld
the order of Trial Court. Both the courts below have found respondents
innocent.It is well settled proposition of law that once there is an order of
acquittal there is double presumption of innocence.
6. The petitioner has invoked revisionary jurisdiction of this
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court. The scope of interference while exercising power of revision
against judgment of acquittal is very limited.
6.1 While adverting with Section 439 of old Criminal Procedure
Code which in its present avatar is Section 401, a four judge bench of
Hon'ble Supreme Court in D. Stephens v. Nosibolla 1951 SCC 184 has
held:
"12. The revisional jurisdiction conferred on the High Court
under Section 439 of the Code of Criminal Procedure is not
to be lightly exercised, when it is invoked by a private
complainant against an order of acquittal, against which
the Government has a right of appeal under Section 417. It
could be exercised only in exceptional cases where the
interests of public justice require interference for the
correction of a manifest illegality, or the prevention of a
gross miscarriage of justice. This jurisdiction is not
ordinarily invoked or used merely because the lower court
has taken a wrong view of the law or misappreciated the
evidence on record."
6.2 A four judge bench of Hon'ble Supreme Court reiterating the
above opinion in Logendranath Jha v. Polai Lal Biswas 1951 SCC 856
has held:
"9. ... Though sub-section (1) of Section 439 authorises the
High Court to exercise, in its discretion, any of the powers
conferred on a court of appeal by Section 423, sub-section
(4) specifically excludes the power to 'convert a finding of
acquittal into one of conviction'. This does not mean that in
dealing with a revision petition by a private party against
an order of acquittal, the High Court could in the absence
of any error on a point of law, reappraise the evidence and
reverse the findings of facts on which the acquittal was
based, provided only it stopped short of finding the accused
guilty and passing sentence on him.
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10. By merely characterising the judgment of the trial
court as 'perverse' and 'lacking in perspective', the High
Court cannot reverse pure findings of fact based on the trial
court's appreciation of the evidence in the case. That is
what the learned Judge in the court below has done, but
could not, in our opinion, properly do on an application in
revision filed by a private party against acquittal".
6.3 A three judge bench of Hon'ble Supreme Court in K.
Chinnaswamy Reddy v.State of A.P. (1963) 3 SCR 412 has observed:
7. It is true that it is open to a High Court in revision to
set aside an order of acquittal even at the instance of
private parties, though the State may not have thought fit to
appeal; but this jurisdiction should in our opinion be
exercised by the High Court only in exceptional cases, when
there is some glaring defect in the procedure or there is a
manifest error on a point of law and consequently there has
been a flagrant miscarriage of justice. Sub-section (4) of
Section 439 forbids a High Court from converting a finding
of acquittal into one of conviction and that makes it 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 retrial, when it cannot itself
directly convert a finding of acquittal into a finding of
conviction. This places limitations on the power of the High
Court to set aside a finding of acquittal in revision and it is
only in exceptional cases that this power should be
exercised. It is not possible to lay down the criteria for
determining such exceptional cases which would cover all
contingencies. We may however indicate some cases of this
kind, which would in our opinion justify the High Court in
interfering with a finding of acquittal in revision. These
cases may be: where the trial court has no jurisdiction to try
the case but has still acquitted the accused, or where the
trial court has wrongly shut out evidence which the
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prosecution wished to produce, or where the appeal court
has wrongly held evidence which was admitted by the trial
court to be inadmissible, or where material evidence has
been overlooked either by the trial court or by the appeal
court, or where the acquittal is based on a compounding of
the offence, which is invalid under the law. These and other
cases of similar nature can properly be held to be cases of
exceptional nature, where the High Court can justifiably
interfere with an order of acquittal; and in such a case it is
obvious that it cannot be said that the High Court was
doing indirectly what it could not do directly in view of the
provisions of Section 439(4). We have therefore to see
whether the order of the High Court setting aside the order
of acquittal in this case can be upheld on these principles.
6.4 A two judge bench of Hon'ble Supreme Court after noticing its
previous judgments in Mahendra Pratap Singh v.Sarju Singh (1968) 2
SCR 287 has held:
"8. The practice on the subject has been stated by this
Court on more than one occasion. InD.
Stephensv.Nosibolla[1951 SCC 184 : 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,
thisCourt further states that the High Court is not entitled to
interfere even if a wrong viewof law is taken by the Court of
Session or if even there is misappreciation of evidence.
Again, inLogendranath Jhav.Polai Lal Biswas[1951 SCC
856 : 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
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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 inK. Chinnaswamy Reddyv.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".
7. Hon'ble Supreme Court in a catena of judgments while
dealing with scope and powers of the appellate/revisionary courts in
dealing with an appeal/revision against an order of acquittal has
elucidated:
(i) An appellate court has full power to review, reappreciate
and reconsider the evidence upon which the order of acquittal is founded.
(ii) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of such power and an
appellate court on the evidence before it may reach its own conclusion,
both on questions of fact and of law.
(iii) Various expressions, such as, 'substantial and
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compelling reasons', 'good and sufficient grounds', 'very strong
circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not
intended to curtail extensive powers of an appellate court in an appeal
against acquittal. Such phraseologies are more in the nature of 'flourishes
of language' to emphasise the reluctance of an appellate court to interfere
with acquittal than to curtail the power of the court to review the
evidence and to come to its own conclusion.
(iv) An appellate court, however, must bear in mind that
in case of acquittal, there is double presumption in favour of the
accused. Firstly, the presumption of innocence is available to him
under the fundamental principle of criminal jurisprudence that
every person shall be presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly, the accused having
secured his acquittal, the presumption of his innocence is further
reinforced, reaffirmed and strengthened by the trial court.
(v)If two reasonable conclusions are possible on the basis of
the evidence on record, the appellate court should not disturb the finding
of acquittal recorded by the trial court.
8. The petitioner has preferred present petition along-with an
application seeking condonation of delay of 796 days. It appears that
order of this Court in RSA No.1431 of 2016 dated 25.10.2018 prompted
the petitioner to activate stale proceedings. The petition also deserves to
be dismissed on the ground of delay because neither any convincing
reason of delay has been mentioned in the petition nor learned counsel
could cite even one reason to condone the delay.
9. In view of the above narrated facts, having regard to the findings
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recorded by trial court including accepted legal position, this Court is of
the considered opinion that in the case at hand there is no infirmity or
irregularity in the impugned order whereby trial Court as well Appellate
Court has acquitted the respondent. Accordingly, this Court fully agrees
with the finding recorded by trial Court and Appellate Court. The
impugned judgment and order being speaking, based upon correct
appreciation of facts, applicable law & judicial precedents and well-
reasoned needs no interference of this Court.
10. The present petition being bereft of merit and barred by limitation
deserves to be dismissed and accordingly is hereby dismissed.
( JAGMOHAN BANSAL )
JUDGE
17.11.2022
Ali
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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