SURENDRA BARIK Vs. GURUBARI NAYAK AND ORS.

JUDGEMENT

(1.) THIS revision is at the instance of the informant (P.W. 1) assailing the acquittal of the opposite party Nos. 1 to 16 of the charges under Sections 147, 341, 323 read with Section 149, I.P.C. It is his case that while he was sitting inside his Bari, the cow of the opposite party No. 2 damaged the boiled rice of P.W. 4 at which the dog of P. W. 4 barked away the cow which in the process fell into cow dung pit. As a result P. W. 1 raised hulla hearing which opposite party Nos. 2 and 13 came to the spot and finding the cow to be in that condition blamed P. W. 1 as being the cause of the same. Opposite party No. 13 gave slaps to P. W. 1 and taking advantage of the situation all the opposite party Nos. 1 to 16, who had long standing litigation with him, forming an unlawful assembly entered inside his house, dragged him and his mother outside and assaulted his mother by means of slaps and stones causing bleeding injuries on her head as well as to the nose of the informant. The matter was reported by P. W. 1 at the police station on the basis of which the investigation commenced. The mother of P. W. 1 was examined on requisition of the police and on charge -sheet being submitted, the opposite party Nos. 1 to 16 were put to trial. The learned Magistrate on analysis of the evidence of the prosecution witnesses of whom P. Ws. 1, 2, 7 and 8 were the eye -witnesses, disbelieved the prosecution case for found that neither was there any unlawful assembly nor any rioting by the accused persons and that the charge under Sections 341 and 323, I.P.C. were equally not borne out. P. W. 5, though was an eye -witness, yet did not support the prosecution case and was permitted to be cross -examined by the prosecution. Being of that view she acquitted the opposite party Nos. 1 to 16. Assailing the order, it is the submission of Mr. Nanda, the learned counsel appearing for the petitioner, that the learned Magistrate committed a manifest error in procedure by not hearing the arguments from the prosecution side before he delivered the judgment. It appears that on 25 -8 -1986 she posted the case to 5 -9 -86 for accused statement. The case was however put up on 30 -8 -86 on the strength of the advance petition and on that day she recorded the accused statement and recorded in the order sheet as "Defence declined. Heard arguments. Put up on 3 -9 -1986 for judgment. Accused as before". On 3 -9 -86 she delivered the judgment acquitting the opposite parties. It is the submission of Mr. Nanda that the copy of the advance petition on the basis of which the accused statement was recorded was not served either upon the public prosecutor or upon the private advocate engaged by the informant to assist the public prosecutor, a fact which is also borne out from the record since the petition does not bear any endorsement of the copy having been received by either the public prosecutor or by the advocate concerned nor is there any other record to show that any copy had been served. For such reason it is the submission that the learned Magistrate delivered the judgment without having the benefit of addressing the prosecution regarding summing up of the case. This according to him is a glaring defect in procedure which has resulted in manifest injustice. The submission though attractive is not acceptable since though Section 314, Cr. P.C. provides that after the close of evidence either party to the case has the option of addressing concise oral arguments and also of submitting memorandum of submissions, yet non -compliance with the same cannot be said to be such a glaring defect in procedure or the violation of such a fundamental principle of law which can be taken as ipso facto resulting in injustice to the prosecution. Section 465, Cr. P.C. provides that no sentence or order by a Court of competent jurisdiction is to be reversed or altered merely because, amongst other things, any error or irregularity has occurred in any proceeding before for during the trial unless it is shown that a failure of justice has in fact been occasioned thereby. The test is more rigorous so far as the revision at the instance of a private complainant in respect of an acquittal in a case instituted on a police report is concerned. Dealing with the matter, it was held in ) (K. Chinnaswamy Reddy v. State of Andhra Pradesh) that unless there is some glaring defect in the procedure or there is manifest error on a point of law resulting in flagrant miscarriage of justice, the High Court would not convert a finding of acquittal into one of conviction which makes it all the more incumbent on the High Court to see that an acquittal is not converted to a conviction by an indirect method of ordering retrial when it cannot itself directly do so. It was pointed out that the revisional jurisdiction should be exercised by the High Court for directing retrial of the case only in exceptional cases illustration of which were where the trial Court had no jurisdiction to try the case at all, or where evidence sought to be produced by the prosecution was wrongly shut out, or where the appeal Court wrongly held the evidence to be inadmissible, or where material evidence was overlooked by either the trial Court or the appeal Court, or where the acquittal is based on a compounding of the offence which is not compoundable. In )(Bansi Lal v. Laxman Singh) their Lordships held that it is only in glaring cases of injustice resulting from violation of some fundamental principles of law by the trial Court that the High Court is empowered to set aside the order of acquittal and direct retrial of the acquitted accused. From the very nature of this power it should be exercised sparingly and with great care and caution. In the instant case the learned trial Court had herself recorded the evidence and hence had participated in the case throughout. As such her appreciation of evidence as is reflected by the judgment cannot be said to be wholly perverse unless it is shown that the judgment of acquittal suffers from any of the defects as was pointed out in ) (supra). Mr. Nanda has not been, able to show of any such glaring injustice to have been occasioned merely because the order sheet does not show of the prosecution to have been heard before the judgment was delivered. There is no allegation that the learned Magistrate had no jurisdiction to try the case or that any evidence had been shut out or was overlooked. All the evidence has been discussed and on analysis of the same, the finding was reached of the charges having not been established. In that view of the matter, I do not think that it is a fit case where the revisional jurisdiction should be exercised to set aside the order of acquittal and direct retrial of the opposite party Nos. 1 to 16.

(2.) IN the result, the revision has no merit and is dismissed.