RAJ KUMAR KHEMKA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) The appellants were charged for offences under Sections 323, 354, 408, 498-A and 504 of the Penal Code, 1860. The trial court after detailed consideration of evidence adduced on behalf of the parties came to the conclusion that the prosecution has failed to prove the charges against the accused persons, as such it passed the order of acquittal. Challenging the said order, the private prosecutor filed a revision application before the Sessions Court. By order dated 29-7-1997 the Revisional Court allowed the revision application and remitted the matter to the trial court for fresh consideration on two grounds; firstly, on the ground that examination of Krishan Kumar Khemka, the brother of the accused, as witness was erroneously refused by the trial court by rejecting the application under Section 311 of the Code of Criminal Procedure, and secondly, in its opinion the trial court was not justified in disbelieving the evidence adduced on behalf of the prosecution inasmuch as in its opinion two views were possible. Aggrieved by the order of the Revisional Court the appellants moved the Allahabad High Court which refused to interfere with the same, hence this appeal by special leave.

(3.) In our view, the procedure adopted by the Revisional Court, that is, the Sessions Court in the case in hand is a novel one in remanding the matter to the trial court on the ground that two views were possible on appraisal of evidence. The ground for remand for examination of Krishan Kumar Khemka is not at all justified as neither according to the prosecution case nor evidence, Krishan Kumar was a witness with regard to the present occurrence. This being the position, we find that the order of remand is based upon extraneous considerations and not upon the grounds permissible under law. It is well settled that at the instance of a private prosecutor, the Revisional Court can grant relief only in exceptional circumstances when compelling grounds are made out. The Revisional Court in such a revision has no jurisdiction to reverse the finding of acquittal into that of conviction and it is vested with only power of remand either for retrial or reconsideration as the necessities of the case may require. In the present case none of the two grounds could warrant remand, as such the order of remand suffers from serious legal infirmity and the High Court was not justified in refusing to interfere with it.