# 8 80 KHETRABASI SAMAL ETC v. STATE OF ORISSA ETC

- **Citation:** [1970] 1 S.C.R. 880
- **Court:** Supreme Court of India
- **Decided:** 1969-08-14
- **Bench:** S. M. Sikri, G. K. Mitter, P. Jaganmohan Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/8-80-khetrabasi-samal-etc-v-state-of-orissa-etc-4723
- **Pages:** 6

## Headnote

Code of Criminal Procedure (5 of 1898), s. 417(1) and (3)-Case of
assault-Case against so1ne Gccused started on police report and against
others on complaint to M'llgistrate-Tlvo cas~s clubbed and tried togetherAccused acquitted-Appeal against acquittal against accused against lVho1n
case initiated on police report-Whether complainant could file or only
State competent to file.
A first information report to the police was lodged against the appellants
and some others-ten persons in all, for having taken part in an assault
and causing hurt to the victim of the assault. On the police report, the
Magistrate took cognizance of the case.
More than six were after the
incident, the victim filed a complaint before the Magistrate naming thirtyone persons (including the ten persons against whom the first in'formation
was given) as bis assailants, and the Magistrate took cognizance of the case
against the other twenty-one accused as a separate case.
On the application of the complainant (victim), the two cases, one on the police
report and the other on the private complaint, were clubbed and tried
together.
The Magistrate, on an examination of the evidence, held that
there was no proof beyond reasonable doubt that the accused persons
committed the assault and acquitted all of them. The complainant
then filed an appeal under s. 417(3), Criminal Procedure Code, to the
High Court.
The appellants, against whom cognizance of the case was
taken on the police report, challenged the maintainability of the appeal on
the ground that the appeal against their acquittal was maintainable only
if preferred by the State Government under s. 417(1). The High Court
overruled the objection, re-appraised the evidence of the witnesses, upset
the finding of the Magistrate and convicted the appellants.
In appeal to this Court, on the questions : ( 1) As to the maintainability
of the appeal by the complainant; and (2) Whether the matter should be
sent back to the High Court for disposal under s. 439 of the Code,
HELD : (I) Though the two cases could be clubbed together for convenience of trial under s. 239 of the Code the nature and identity of the
cases in relation to their appealability under s. 417 were not altered. In
the case started against the appellants on the police report the
appeal
against acquittal could have been filed only by the State Government, and
if no such appeal was filed, the complainant could only invoke the revisional powers of the High Court under s. 439 if proper grounds were
present. [883 A-Cl
(2) The High Court can exercise its revisional powers under s. 439
when invoked by a private complainant against an order of acquittal
against which the State has a right of appeal under s. 417, only in exceptional cases when there is some glaring defect in the procedure and there
is a manifest error on a point o'f law and consequently there has
been
a flagrant miscarriage of justice.
The present case however is one of
mere appraisal of °'idence. In such a case the High Court under s. 439.
could not re-examine the evidence or order a retrial.
Therefore, the
case was not a fit one for sending back to the High Court. [883 E-F; 884
E-G; 885 A, F-Hl
D. Stephens v. Nosibolla, [1951] S.C.R. 284,
Logendranath Jha
v.
Polailal Biswas [1951] S.C.R. 676 and K. Chinnaswamy Reddy v. State
of A.P. [1963] 3 S.C.R. 412, 418, followed.
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K. SAMAL v. ORISSA (Mitter, !.)
881
CRIMINAL APPELLAT!!: JURISDICTION :
Criminal
Appeals
Nos. 160 and 171 of 1967.
Appeals by special leave from the judgment and order dated
May 12, 1967 of the Orissa High Court in Criminal Appeal No.
194 of 1965.
S. N. Anand, for the appellants (in Cr.A. No. 160 of 67).
R. K. Garg, S. C. Agarwal, D. P. Singh, Sumitra Chakravarty
and Uma Dutt, for the appellants (in Cr.A. No. 171 of 1967).
V. C. Mahajan and R. N. Sachthey, for the respondent (in
Cr.A. No. 160 of 1967).

## Text

8 80
KHETRABASI SAMAL ETC.
v.
STATE OF ORISSA ETC.
August 14, 1969
[S. M. SIKRI, G. K. MITTER AND P. JAGANMOHAN REDDY, JJ.J
Code of Criminal Procedure (5 of 1898), s. 417(1) and (3)-Case of
assault-Case against so1ne Gccused started on police report and against
others on complaint to M'llgistrate-Tlvo cas~s clubbed and tried togetherAccused acquitted-Appeal against acquittal against accused against lVho1n
case initiated on police report-Whether complainant could file or only
State competent to file.
A first information report to the police was lodged against the appellants
and some others-ten persons in all, for having taken part in an assault
and causing hurt to the victim of the assault. On the police report, the
Magistrate took cognizance of the case.
More than six were after the
incident, the victim filed a complaint before the Magistrate naming thirtyone persons (including the ten persons against whom the first in'formation
was given) as bis assailants, and the Magistrate took cognizance of the case
against the other twenty-one accused as a separate case.
On the application of the complainant (victim), the two cases, one on the police
report and the other on the private complaint, were clubbed and tried
together.
The Magistrate, on an examination of the evidence, held that
there was no proof beyond reasonable doubt that the accused persons
committed the assault and acquitted all of them. The complainant
then filed an appeal under s. 417(3), Criminal Procedure Code, to the
High Court.
The appellants, against whom cognizance of the case was
taken on the police report, challenged the maintainability of the appeal on
the ground that the appeal against their acquittal was maintainable only
if preferred by the State Government under s. 417(1). The High Court
overruled the objection, re-appraised the evidence of the witnesses, upset
the finding of the Magistrate and convicted the appellants.
In appeal to this Court, on the questions : ( 1) As to the maintainability
of the appeal by the complainant; and (2) Whether the matter should be
sent back to the High Court for disposal under s. 439 of the Code,
HELD : (I) Though the two cases could be clubbed together for convenience of trial under s. 239 of the Code the nature and identity of the
cases in relation to their appealability under s. 417 were not altered. In
the case started against the appellants on the police report the
appeal
against acquittal could have been filed only by the State Government, and
if no such appeal was filed, the complainant could only invoke the revisional powers of the High Court under s. 439 if proper grounds were
present. [883 A-Cl
(2) The High Court can exercise its revisional powers under s. 439
when invoked by a private complainant against an order of acquittal
against which the State has a right of appeal under s. 417, only in exceptional cases when there is some glaring defect in the procedure and there
is a manifest error on a point o'f law and consequently there has
been
a flagrant miscarriage of justice.
The present case however is one of
mere appraisal of °'idence. In such a case the High Court under s. 439.
could not re-examine the evidence or order a retrial.
Therefore, the
case was not a fit one for sending back to the High Court. [883 E-F; 884
E-G; 885 A, F-Hl
D. Stephens v. Nosibolla, [1951] S.C.R. 284,
Logendranath Jha
v.
Polailal Biswas [1951] S.C.R. 676 and K. Chinnaswamy Reddy v. State
of A.P. [1963] 3 S.C.R. 412, 418, followed.
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K. SAMAL v. ORISSA (Mitter, !.)
881
CRIMINAL APPELLAT!!: JURISDICTION :
Criminal
Appeals
Nos. 160 and 171 of 1967.
Appeals by special leave from the judgment and order dated
May 12, 1967 of the Orissa High Court in Criminal Appeal No.
194 of 1965.
S. N. Anand, for the appellants (in Cr.A. No. 160 of 67).
R. K. Garg, S. C. Agarwal, D. P. Singh, Sumitra Chakravarty
and Uma Dutt, for the appellants (in Cr.A. No. 171 of 1967).
V. C. Mahajan and R. N. Sachthey, for the respondent (in
Cr.A. No. 160 of 1967).
The Judgment of the Court was delivered by
Mitter, J. These two appeals by special leave are from one
judgment of the High Court of Orissa hearing an appeal from
an order of acquittal of 31 persons accused on charges under
ss. 147, 323 and 325 of the Indian Penal Code for being members of an uqlawful assembly and having voluntarily caused hurt
and inter alia a grievous one by dislocating a tooth by me8'11s of
a knife-like thing of one Jagabandhu Behera, the appellant before
the High Court.
The incident is alleged to have happened on October 4, 1963
at about 11 a.m. in village Anantapur in course of which the
accused persons are said to have assaulted Jagabandhu Debera
with lathis and sharp instruments.
The motive for the crime
was said to be enmity arising out of Gram panchayat election
and previous litigation between Jagabandhu Behera and Khetrabasi Sama!,. one of the said 31 persons.
The first information
report was lodged at 5 p.m. by one Maguni Charan Biswal who
however was not examined at the trial.
In this report ten persons were stated to have taken part in assaulting and hurting
J agabandhu.
More than six weeks thereafter Jagabandhu filed
a complaint before a Magistrate in which he named 31 persons
including those agaiust whom the first information report had
been lodged as his assailants.
The complainant stated therein
that he had been assaulted so mercilessly as to render him unconscious and he recovered consciousness in Anantapur Dispensary where he was treated by a doctor. From there he was taken
to a hospital in Cnttack and was lodged there till November 18,
1962.
The Magistrate examined the complainant on the same daj
and directed another Magistrate of the First Class to inquire and
report.
On January 23, 1963 after getting the report of such
inquiry and hearing the person against whom the complaint was
made on their protest petition, the Magistrate held "that there
was a prima facie case against the accused persons under ss. 147 I
323 I.P.C. except the first ten accused persons as per the complaint petition since they had already been
sent for trial in
882
SUPREME COURT REPORTS
( 1970] I S.C.R,
G.R. No. 1943 of 1962".
He took cognizance against accused
persons from serial Nos. 11 to 31 as per the complaint petition
under ss. 14 7 /323 I.P.C.
The G.R. case had already been started on the basis of the
first information report. On July 12, 1963 the complainant Jagal:.andhu lkl1era filed a petition to club the complaint case along
with the analogous G.R. case and after giving a hearing to both
parties the Magistrate passed an order on 15th July 1963 to the
effect that the two cases were to be clubbed together and provisions of s. 252 Cr.P.C. were to be followed. · The proceedings
went on for an inordinately long time and ultimately on August
23, 1965 the trying Magistrate delivered a judgment acquitting
aU the accused.
Jagabandhu Behera filed an appeal to the High
Court under s. 417(3) of the Code of Criminal Procedure and
the grounds urged in support of such appeal were substantially
based on the alleged failure of the Magistrate to take a proper
view of the ovidence.
Before the High Court, a point was taken ori behalf of the
respondents challenging the maintainability of the appeal as against
accused l to I 0 against whom cognizance was t;:ken
on the
police reporl.
Among these ten persons are the appeUants in
the two appeals to this Court.
It was urged that as these ten
persons had figured as accused in G.R. Case No. 1943 of 1962
an appeal against their acquittal would not lie at the instance of
the complainant under s. 417(3) but would only be maintainable
if preferred under s. 417(1) by the Slate Government.
It was
also contended that mere clubbing together of the two cases, the
G.R. case and the complainant's case, for joint trial would not
change the character thereof so as to convert the G.R. case into
a complaint case.
The High Court
over-ruled this
objection mainly
on the
ground that s. 239 Cr.P.C. allowed the trial of a number of persons whether accused of the same offence or of different offences
if these were committed in the course of the same transaction.
The High Court then considered the merits of the appeal, examined the evidence of the prosecutiC\Il witnesses and took the
view that the testimony of prosecution witnesses I,
2 and 5
who claimed to have witnessed the incident themselves had been
discarded by the Magislrate on extraneous considerations.
Sifting the evidence for itself the' High Court held that seven of the
accused i.e. the appellants to this Court were guilty of some of
the charges framed against them and passed sentences ranging
from three months to six months in different cases after setting
aside the acquittal.
It was contended before us on behalf of the appellants that
the appeal to the High Court was incompetent and in our view
this contention must be accepted.
There were two separate cases
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JC. SAMAL v. ORISSA (Mitter, J.)
883
of which cognizance was taken separately. . One was started
on the basis of a police report while the other was on the com·
plaint of Jagabandhu Behera. As the accused in both the cases
were said to have committed the offences in the course of the
same transaction, the cases were clubbed together for the pur·
pose of trial and such a course was clearly permissible under
s. 239 Cr.P.C. That did not however alter the nature of the
cases so as to affect their appealability under s. 417. The two
cases retained their individuality except for the convenience of
the trial. If the cases had ended in conviction they would have
had to be separately recorded. The first ten accused would have
had to appeal from their conviction and sentence in the G.R.
case and similarly the remaining accused from the complaint case.
If the State did not think it proper to direct the Public Prose·
cutor to present an appeal to the High Court from the order of
acquittal in the. G.R. case it might have been open to the. com·
plaina,nt to invoke the powers of the High Court under s. 439
of the Code if proper grounds for revision were present.
Counsel for the respondents argued that this was a case where
we should not allow the appeal on the ground that the High
Court had gone wrong in exercising its powers under s. 417(3)
of the Code but should send the matter back to the High Court
for· disposal according to law including the powers under s. 439
of the Code.
It Was s_aid that J agabandhu Behera had been
beaten up by a number of persons in a public place in broad
day light and although there might be infirmities in the evidence
adduced on behalf of the prosecution and contradictory state--
ments made by some of the prosecution witnesses, we should not
put an end to the proceedings here but send the matter back to
the High Court for proper disposal.
In our view, the Jaw does not permit such. a course to be
adopted on the facts of this case. The powers of the High Court
under s. 439 Cr.P.C. although wide are subject to certain limi·
tations. Section 439(4) expressly provides that the section shall
not be deemed to authorise the High Court to convert a finding of
acquittal into one of conviction.
This Court has had to examine the jurisdiction of the High
Court under this section on several occasions. In D. Stephens
v. Nosibolla(') it was poil!lted out (see at p. 291) that:-
"The revisional jurisdiction conferred on the High
Coutt under section 439 of the Code of Criminal Pr<>-
cedure 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 ex·
ccptional cases where the interests of public justice
(I) [1951] S.C.R. 284.
884
SL'PREME COURT REPORTS
[1970] I S.C.R,
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 wrona
view of the law or misappreciatcd the evidence o~
record".
Again in Loge11dra11ath Jha & Others v. Polai/a/ Binvas(') where
the High Court ~ad set aside an order of acquittal of the appellants by the Sesszons Judge and directed their re-trial, this Court
(see at p. 681) said :-
''Though sub-section (I) 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 acquictal 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 re-appraise 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.
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".
In K. Chinnaswamy Reddy v. State of Andhra Pradesh('). The
court proceeded to define the limits of the jurisdiction of the
High Court under s. 439 of the Criminal Procedure Code while
setting aside an order of acquittal.
It was said :
" ...... 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 and
there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice
...... It is not possible lo 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 t1ial court
has no jurisdiction to try the case but has still lcquitted
the accused, or where the trial court has wrongly shut
out evidence which the prosecution wished to produce,
or where the appeal court has wrongly held evidence
which was admitted by the trial court to be inadmis·
sible, or where material evidence has been overlooked
(I) [156!] S.CR. 676.
(2) [1963]) SCR.412,418.
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IC. SAMAL v. ORISSA (Mitter, !.)
either by the trial court or by the appeal court, or where
the acquittal is based on a compouncling of the offence,
which is invalid under the law".
885
It may be that a case not covered by any of the contingencies mentioned above may still arise.
But, where, as here,
the appeal court (the High Court in this case) has set aside the
order of acquittal almost entirely on the ground that the Magistrate should not have disbelieved the three eye witnesses, viz .•
P.Ws. 1, 2 and 5, the case clearly falls within the contingencies
mentioned in the above decision of this Court. The High Court
judgment does not show that the trial court shut out any evidence
which the prosecution wanted to produce or admitted any inadmissible evidence or overlooked any material evidence.
The
Magistrate examined the evidence produced by the prosecution.
According to him,· there was strong enmity between the two
parties of Jagabandhu Behera and Khetrabasi Sama! and although
the incident was 15upposed to have taken place in front of a large
number of shops and before a large gathering, only one person
from those shops, P.W. 5 who was a chance witness occasionally
going to the place for the purpose of carrying on his business
in fish, was examined by the prosecution and there was no explanation for not examining the other witnesses named in the
complaint petition. P.W. 1, one of the witnesses mentioned in
the judgment of the High Court and relied on by it was · the
complainant's father-in-law and as such a person interested in the
.success of the pros~ution. Relying on the testimony of the
doctor who had examined Jagabandhu Behera, the Magistrate
found himself unable tO accept the evidence of the prosecution
witnesses to the effect that the injury to the tooth was caused by
a sharp-cutting instrument in which case other external injuries
could not have been avoided.
The Magistrate was doubtful a~
to whether the accused Jiersons had any hand in the commission
of the crime and although the assault on Jagabandhu was a brutal
one there was, l\CC()rding to the Magistrate, no proof
beyond
reasonable doubt that it was the accused persons who had committed it. The High Court proceeded to re-appraise the evidence
of the witnesses and upset the finding of the Magistrate thereon on the grouqd that he "had not taken the trouble of sifting
the grain from the chaff".
Clearliy such a course is not permissible under' s. 439 of the Criminal Procedure Code.
Nor in
our opinion the facts and circumstances of this case warrant the
ordering of a re.trial by the High Court if it felt disposed to exercise powers· under s. 423 Cr.P.C. expressly included in s. 439.
Sending the case back to the High Court can serve no usefu -
purpose.
As the appeal to the High Court was incompetent" we allow
the appeals and direct the cancellation of their bail bonds.
V.P.S.
·
Appeal allowed.