KASHIRAM Vs. BHAGWANDAS LALLU KURMI

JUDGEMENT

(1.) THIS is a revision against an order af acquittal passed by the Magistrate Second class, Jabalpur in Criminal Case No. 330 of 1957.

(2.) THE non-applicant No. 1 Bhagwandas was charged under Section 454, Indian penal Code, for committing theft on 4-4-1956 in the house of one Kashiram Kurmi of Barela (applicant here ). The police, during the course of investigation, on suspicion, had searched the house of the accused-non-applicant No. 1 and found some ornaments, i. e. , four gold mohurs in a kantha and one gold tabiz along with currency notes of Rs. 390. This property was seized and the complainant claimed it to be his own which was stolen. There was no other evidence in the case, and the success of the prosecution hinged on the question : whether the property recovered from the house of the accused non-applicant No, 1 was his own, or was that of the complainant? The complainant produced several witnesses, including a goldsmith, parmalal (P. W. 7), to prove that the property seized belonged to him and that it was stolen from his house on the material date. The accused-non-applicant No. 1 claimed the property to be his own. The learned Magistrate in his judgment dealing with the evidence arrived at the conclusion that the complainant could not prove the property to be his own. As there was no other evidence in the case, he acquitted the non-applicant No. 1 of an offence under Section 454. He, then, ordered that the property seized from the accused-non-applicant No. 1 should be returned to him, after the period of appeal was over. The State did not file an appeal against the order of acquittal under section 417, Criminal Procedure Code. So, the complainant comes in revision before this Court.

(3.) THERE are two Supreme Court rulings on the point. The first is reported in D. Stephens v. Nosibolla, 1951 SCR 284: (AIR 1951 SC 196), in which their Lordships observed that the revisional jurisdiction raider Section 439, Criminal Procedure code, is not to be lightly exercised by the High, Court, 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. Their Lordships added that this jurisdiction should not ordinarily be invoked or used merely because the lower Court has taken a wrong view of the law or misappreciated the evidence on record. In another case reported in Logendranath Jha v. Shri Polai Lal Biswas, 1951 SCR 676: (AIR 1951 SC 316), it was laid down that though sub-sertion (1) of Section 439, Criminal Procedure Code, authorises the High Court to exercise, in its discretion, any of the powers conferred on a Court of appeal by Section 423, Subsection (4) of Section 439 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 can, 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 is based, provided only it stops short of finding the accused guilty and passing senteuce on him.