R. Kaliamurthy and two Others vs Sellammal and two Others

Padmini Jesudurai, J.—This appeal and this revision arise out of the judgment of the Sessions Judge, West Thanjavur at Thanjavur in C.A. 61 of 1982 acquitting respondents 1 and 2, setting aside their conviction by the Chief Judicial Magistrate, Kumbakonam in C.C.6 of 1982 for an offence under Sec.455 I.P.C. and the sentence of imprisonment for a period of 6 months and a fine of Rs.25/- each, in default, imprisonment for a period of 1 month, C.A.1082/86 challenging the acquittal of respondents 1 and 2, while Criminal Revision Case 794 of 1986 is directed against the dismissal of the petitioner''s application Criminal Miscellaneous Petition 1120/83 under Sec. 456(2) Crl.P.C. seeking restoration of the property trespassed into by respondents 1 and 2.

Facts briefly are as follows: The dispute relates to a house bearing Door No. 1/94 in North Street, Tirubuvanam. Ramachandra Naidu the father of the appellant and his brother Kasinivanthan Naidu filed O.S.367/76 in the court of the District Munsif, Valangaiman, against respondents 1 and 2 for recovery of possession of the disputed property and for certain other reliefs. The suit was decreed as per judgment marked as Ex.P.1. Execution petition 63/80 was filed for executing the decree and obtaining possession. On 13.2.1980 at 10 a.m., P.W.2 the Ameen attached to the court of the District Munsif, executed the warrant given to him for effecting delivery and in the presence of P.Ws.4 and 5, the village Munsiff, he handed over vacant possession of the property to Ramachandra Naidu and his brother. Respondents 1 and 2 signed in the delivery memo Ex.P.2, in which P.Ws. 4 and 5 attested in token of the delivery having been effected. The house was locked and Ramachandra Naidu and his brother took possession. It is the prosecution case that on 14.2.1980 at 7 p.m., respondents 1 and 2 broke open the lock of the house, threatened Ramachandra Naidu and his brother, forcibly entered the house, trespassed into it and occupied it. The next day, a complaint was made to the local police and since no action was taken, Ex.P.3 complaint was presented in court, which was sent to the police under Sec.156(3) Crl.P.C. for registering a case and for investigation. After investigation, the police (3rd respondent in the appeal) filed charge-sheet against respondents 1 and 2 for the offence under Sec. 455 I.P.C.

During trial, on behalf of the prosecution, P.Ws. 1 to 6 were examined and Exs.P.1 to P.3 marked. Respondents 1 and 2 (who will hereinafter be referred to as A1 and A2) denied having committed any crime and stated that what was effected on 13.2.1980 was only a paper delivery and a panchayat was held, under which it was agreed that A.1 and A.2 should be permitted to continue to live in the same house on certain terms and accordingly, A.1 and A.2 continued to live in the house and there was no house breaking and trespass on the next day as alleged by the complainant. In support of their contention, the accused examined D.Ws. 1 to 3 and had Exs.D.1 to D.3 marked on their side. The learned Magistrate rejected the case of the accused and found them guilty of the offence under Sec.455 I.P.C. convicted them thereunder and sentenced them each to undergo imprisonment for a period of 6 months and to pay a fine of Rs.25/- each, in default to undergo imprisonment for a period of one month. Aggrieved with the conviction and sentence, the accused filed C.A.61/82 in the court of the Sessions Judge, west Thanjavur at Thanjavur. The appellants filed Crl.M.P.No.1120/83 under Sec. 456(2) Cr.P.C. for restoration of the property to them. The learned Sessions Judge, set aside the conviction and sentence of the accused and allowed the appeal and dismissed Crl.M.P.No.1120/83, Aggrieved with the acquittal of the accused, the son of Ramachandra Naidu, who died pending these proceedings, has filed C.A. 1082/86 after getting orders for impleading himself as the legal representative of his father. Aggrieved with the dismissal of Crl.M.P.No.1120/83 Crl.Revision Case No. 794/86 has been filed.

Thiru Madhusudhanan, learned counsel for the appellant, submits that though due to inadvertence an appeal has been filed when no appeal against acquittal is provided for to an informant in a case instituted on a police report, the memorandum of appeal could be treated as a revision and this court could exercise revisional powers under Sec.379 Cr.P.C. In support of this legal plea a judgment of a Division Bench of the High Court of Calcutta in Md. Kasimuddin v. Yunus Ali Mondal 1983 Cri.L.J. was relied upon. The learned counsel, further submitted that, though the powers of this Court in a revision against acquittal by a private party, in a case instituted on a police report are limited, yet whenever the court finds that gross failure of justice has been occasioned by the subordinate court setting aside a conviction overlooking material evidence and legal presumptions and making wrong statements, this court should not fail in its duty to set right matters, by ordering a re-hearing of the appeal.

It was further stated that the learned Sessions Judge had overlooked the legal presumptions raised in respect of Ex.P.2 the warrant issued by the executing court and the delivery receipt engrossed on it, signed by both the accused, it being an official record of the duties discharged by a public servant P.W.2 who is a ministerial staff of a court of law. According to the learned counsel, the learned Sessions Judge in rendering a verdict against the admitted recitals in an official record of the court, spoken to by a ministerial staff of the court, had failed to consider the legal presumptions attached to this document and evidence and this was a fundamental error of law, resulting in a wrong verdict being given and this justified interference by this court to order a rehearing of the appeal.

Per contra, Thiru N. Kannan, learned counsel for the accused would contend that, while the Criminal Procedure code has taken care to provide treating a revision as an appeal, as in Sec.401(4), the significant absence of a corresponding provision to treat a memorandum of appeal, as a revision would indicate the intention of the legislature not to permit any such conversion. The learned counsel by referring to the decisions of the Supreme Court, touching the limited scope of a revision by a private party, against the acquittal of the accused in a case instituted on a police report, urged that the learned sessions Judge has properly appreciated all aspects and the well considered judgment did not suffer from any fundamental error of law or overlooking of any material evidence or legal presumptions and as such there would be no justification in ordering re- hearing of the appeal. The decisions referred to by the learned counsel on this aspect will be discussed in the course of the judgment.

The learned Public Prosecutor was also heard.

The question that arises for consideration is whether the memorandum of appeal in C.A.1082/86 could be treated as a revision under Sec. 397 Cr.P.C. and if done, whether a re-hearing of the appeal by the learned Sessions Judge is called for.

Taking up the first question as to whether the memorandum of appeal in C.A.1082/86 can be treated as a revision under Sec.397 Cr.P.C., we find that an appeal is a creature of the statute and there is no inherent right to any party to file an appeal. This is clear from Sec.372 of the Criminal Procedure Code (the code for short) which is to the effect that no appeal shall lie from any judgment or order of a criminal court, except as provided for by the code or by any other law for the time being in force. Chapter XXIX of the Code provides for appeals to be filed by certain persons against certain types of convictions. Regarding an appeal against acquittal, under Sec.378, the State alone has the right to file an appeal against the acquittal in a case instituted on a police report and no private party has a right to file an appeal against the acquittal in such a case, though he would have such a right under sub-section (4) in a case instituted upon a complaint. It is clear, therefore, that the appellant has no right to file an appeal against the acquittal of the accused, since the case has ultimately been instituted on a police report, though on a complaint by the appellant to the court forwarded to the police under Sec.156(3)of the Code.

Chapter XXX of the Code deals with reference and revision, Sec. 401(4) therein is as follows: "Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed". Since the appellant has no right of appeal against the acquittal of the accused in this case, he would have a right of revision against the acquittal. The question, therefore is, whether when the appellant has no right of appeal and when he has a right of revision, the present memorandum of appeal could be treated as a revision under Sec.379 Cr.P.C.

The converse position of treating an application for revision as a petition of appeal is provided for in Sec.401(5) in that when the Code finds that an appeal lies but a revision has been filed to the High Court and the Court is satisfied that the application was made under an erroneous plea that no appeal lies thereto and it is necessary in the interests of justice to treat the application for revision as a petition of appeal. A Division Bench of the High Court of Calcutta under exactly identical circumstances, held in Md. Kasimuddin Vs. Yunus Ali Mondal and Others, that the absence of any specific provision to the effect, that a memorandum of appeal can be converted into a revisional application, cannot be construed to mean that such power was wanting in the High Court. The reasoning of the Division Bench was that, the scope of an appeal was wider than the scope of a revision and in order to empower the High Court to enlarge its jurisdiction from a revision to an appeal, the sanction of the legislature was felt necessary and Sec.401(5) gave the necessary sanction but when the question is one of limiting the scope of the jurisdiction from an appeal to a revision, no such sanction was deemed necessary and it would therefore be open to the High Court to treat the appeal as a revision and narrowing the scope of the proceedings. The above reasoning of the Division Bench is quite acceptable.

Further, the power of revision is like a power of superintendence of the judgments and orders of subordinate courts. The object of a revision is to enable the High Court or the Sessions court, as the case might be to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order and as to the legality of any proceeding of the inferior court. The court therefore, is empowered to call for examining the records of any proceeding before the inferior criminal court, for the above purpose. The powers could be exercised suo motu or at the instance of any party as is made clear by the use of the phrase in Sec.401 "...which have been called for by itself or which otherwise comes to its knowledge." Since these powers could be exercised even suo motu by the court, there could be no legal impediment to treating a memorandum of appeal as an application for revision. C.A.No.1082/86 therefore will be treated as an application under Sec.397 of the Code.

It would be but proper, at this stage to realise the restricted scope of a revision by a private party against the acquittal of the accused in a case instituted on a police report. The limitations of the court in such a situation, are well defined and the Supreme Court, through several of its pronouncements, has made it clear that in spite of the wide language of Sec.397 and 401 of the Code, the powers of revision are very limited. Brief reference may be made to the decisions in K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, wherein it was emphasised that this jurisdiction could be exercised 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. By way of illustration, certain categories of cases, which would justify the High Court''s interference with the finding of acquittal in such a revision, were enumerated with an observation, that the categories mentioned were merely illustrative and not exhaustive. It was also emphasised that in ordering a re-trial, which alone the High Court could do by virtue of the prohibition contained in Sec.401 sub-sec.(3), the High Court should not convert the finding of the acquittal into one of conviction by the indirect method of ordering re-trial.

Similar view was expressed in Akalu Ahir and Others Vs. Ramdeo Ram, with an added caution that the expression of opinion by the High Court on the evidence before it with respect to the commission of the alleged offences, though no binding on the subordinate court, holding the fresh trial, might nevertheless leave an unconscious impression on the trial court.

In (1982 S.C.C (Crl.) 71) relied on by the learned counsel for the appellant, the Supreme Court upheld the judgment of the High Court by setting aside the acquittal in a revision filed by a private party in a case instituted on a police report and ordering retrial.

From these and other decisions of the Supreme Court, it is clear that though the powers of the High Court in a revision by a private party against the acquittal of the accused in a police case are restricted, and re-trial could be ordered only under exceptional circumstances, yet when the High Court finds that by overlooking evidence or legal presumptions or by wrongly placing the burden of proof on the prosecution and so on, there has been failure of justice, the High Court should not hesitate to exercise its revisional powers to set right the error to secure justice. The facts of the present case will have to be analysed in the background of this position of law.

While it is not open to this Court to re-assess the oral evidence of parties, on the basis of which, the learned Sessions Judge has chosen to set aside the conviction of the accused, this Court Would be within its rights to consider in an overall manner, the evidence placed before the court by the prosecution in proof of the charge against the appellant. The learned sessions Judge has relied upon certain discrepancies in the evidence of P.Ws. 2 to 4 and the delay in P.W.1 giving a complaint. These being matters touching the appreciation of the oral evidence of these witnesses, this court should refrain from making any observation or reappreciating them, to find out whether the appreciation of the evidence by the learned Sessions Judge is correct or not. However, one significant aspect which the learned Sessions has completely overlooked and which would be a very relevant aspect to arrive at a proper decision is the fact that Ex.P.2 is the public document, prepared by a public servant P.W.2 in the discharge of his public duties as a ministerial staff of a court of law. Compelling circumstances must be available to the court to give a finding against the recitals in Ex.P.2. Ex.P.2 is the warrant issued by the executing court for effecting delivery of the property to the decree-holder and the same had been entrusted to P.W.2 and contains a record of ministerial duty performed by P.W.2 with a self-written endorsement by A.2 together with his signature and the signature of A.1. These are court documents and the act of P.W.2 in effecting delivery of the property and executing the warrant, is an official act. Ex.P.2 after it had been duly executed, had been returned to the executing court, and the learned district Munsif has recorded that the property had been delivered and the Execution petition had been closed, as decree had been executed. Execution proceedings had thus been concluded. The genuineness and the authenticity of Ex.P.2 and the recitals made therein, together with the signature of the accused and the attesting witnesses P.Ws. 2 and 4 are admitted by the accused. The learned Sessions Judge had totally missed the legal implications and the legal presumptions in respect of Ex.P.2 and the performance of the ministerial duties by the ministerial staff of the court, namely P.W.2. The judgment of the learned Sessions Judge makes no reference to any of these legal implications or to the legal presumptions touching Ex.P.2. At this juncture, mention could also be made about a mistake of fact that has misdirected the learned Sessions Judge. One of the main reasons for the learned Sessions Judge, to allow the appeal setting aside the conviction disbelieving P.W.1, is the delay on the part of P.W.1 to give the complaint to the police. P.W.1 both in his complaint, as well as in his evidence had stated that the occurrence had taken place on 14.2.1980 at 7 p.m., that the next morning he gave a complaint to the police at Thiruvidaimaruthur police station, that he was given a receipt in acknowledgment of the complaint and so on. The learned Sessions Judge in para 16 of his judgment has stated that even the receipt which P.W.1 had received at the police station had not been produced in court and that from the non-production it should be inferred that P.W.1 had not given any complaint to the police on 15.2.1980 and that this false explanation has been trotted out by him to get over the delay in filing the private complaint and even in the complaint filed in court, the date of the first complaint made to the police is not mentioned. This is one of the main reasons for the Sessions Judge rejecting the prosecution case and disbelieving P.W.1, it is seen from the records that along with the private complaint presented by P.W.1 in court on 6.3.1980, which was forwarded by the court under Sec.156(3) to the 3rd respondent for investigation, P.W.1 has produced three documents and document No. 3 is the receipt of No. 53 dated 15.2.1980 issued by the Head Constable on 15.2.1980 at 6 p.m. acknowledging receipt of a complaint against both the accused herein, relating to the delivery of the property obtained through court on 13.2.1980 and the breaking open of the lock by the accused and unlawful entry into it on the evening of 14.2.1980 all the above details are mentioned in the receipt. This receipt has been filed in court along with the complaint and is available in the court records. The conclusion of the learned Sessions Judge, that a complaint could never have been made on 15.2.1980 because the acknowledgment had not been produced in court, is ill founded and this basic error on a wrong statement of fact has vitiated the appreciation of the evidence of P.W.1 and the entire prosecution case. When therefore, a material error on facts has crept in and has vitiated the appreciation of evidence, the conclusion arrived thereon, cannot be legally sustained. There has to be a re-hearing of the appeal.

The order in Crl.M.P.No.1120/86 being a consequential order has also to be set aside and it has to be re-heard and disposed of afresh, since it is stated, that even now the two accused are occupying the disputed house.

The Learned counsel for the appellant referred to the decision in Dhani Dibya Vs. Kasinath Nanda, wherein on a almost identical facts the offence of Sec.455 I.P.C. was found to have been committed. These are not for this court to appreciate in these proceedings. It is for the learned Sessions Judge, while re-hearing the appeal to consider all these aspects.

It is made clear that the observations made by this Court, in this order touching the merits of the case have been made for the limited purpose of disposing of this appeal and revision and the learned Sessions Judge, while-rehearing the appeal, would do so, without being influenced by any of the observations made by this Court in this order.

In the result, the judgment of the learned Sessions Judge, West Thanjavur at Thanjavur in C.A.61 of 1982 and in Crl.M.P. No. 1220 of 1983 are set aside. The matters are remanded to him for re-hearing and for disposal according to law. C.A.1082 of 1986 treated as a revision is allowed and Crl.R.C. No. 794 of 1986 is also allowed in the above terms.