GIAN CHAND Vs. CHARANJIV LAL TALWAR

JUDGEMENT

(1.) As I have stated in an earlier order today, I have taken cognizance of the subject matter in controversy suo motu under section 439 of the Criminal Procedure Code.

(2.) The learned counsel for the petitiioner has assisted me by drawing my attention to the law laid down by the Supreme Court in K. Chinnaswami Reddy v. State of Andhra Pradesh^. The Supreme Court was dealing with the provisions of section 439 and was laying down the law after considering sub-section (4) thereof. According to the provisions of that sub-section a High Court cannot turn an acquittal into a conviction. The High Court cannot on its own appraisal of evidence substitute the conviction in place of acquittal The Supreme Court considered the statute and applying the test of judicial caution came to the conclusion that only under exceptional circumstances even the power to remind for retrial could be exercised. It was indicated that the High Court would be justified in interfering under section 439 in case the impugned acquittal was by a court which may have tried the case without having any jurisdiction or if the courts below had admitted into evidence that which was inadmissible or had disallowed the production of evidence.

(3.) Mr. Bipin Behari Lal in a very fairly presented argument stated that the Supreme Court also ruled that in case the courts below had overlooked evidence, then even the High Court could interfere with an acquittal. Mr Lal took me partially through the evidence of Public Witness PW1. The entire evidence of Public Witness PWs 1 to 5 has, however, been perused by me, while Mr. D R. Sethi, counsel for the respondent read it out. It became necessary to peruse that evidence in order to test the submission made by the learned counsel for the petitioner that material evidence had been overlooked.