NANDKISHORE PANIGRAHI Vs. MAYADHAR NAYAK

JUDGEMENT

(1.) AN F. I. R. was lodged to the effect that at midnight on 13th of July, 1964 about eighty persons including the accused (opp. parties) came to the Khamar house of nanda Kishore Panigrahi (petitioner) and dealt heavy blows on the door of his house. P. W. 2, brother of the petitioner and P. W. 3, his cook were sleeping inside. They refused to open the door. The accused removed the door leaves with crow bars and threatened to assault P. Ws. 2 and 3. The miscreants entered the house, dragged P. W. 3 out of the house and drove out P. W 2. They removed 657 pitchers of molasses and other articles from the house. Thus an offence under section 395 I. P. C. was made out. After investigation, police submitted a final report stating that though the case was true, the evidence was insufficient. The petitioner filed a protest petition before the Judicial Magistrate, Banki with a prayer that the police should be called upon to submit a charge sheet under Sections 380/457 I. P. C. On the direction of the magistrate, police submitted a charge sheet under those sections. The defence was one of denial and that the case had been falsely foisted due to enmity. After trial, the Magistrate acquitted the accused on 20th December, 1965 Against the order of acquittal the revision has been filed.

(2.) MR. Palit advanced two contentions. (i) The order of acquittal under Sections 380/457 I. P. C. is bad in law; (ii) The case having disclosed an offence under Section 395 I. P. C. , the magistrate had no jurisdiction to try the case and the entire proceeding was void and without jurisdiction. The case should be remanded for trial after setting aside the order of acquittal.

(3.) THOUGH it is open to the High Court in revision to set aside an order of acquittal even at the instance of a private party and even where the State did not file any appeal, the jurisdiction is to be exercised only in exceptional cases when there is some glaring defect in the procedure or there is a manifest error on point of law resulting in a flagrant miscarriage of justice The High Court cannot, however, resort to indirect methods of ordering retrial when it cannot itself directly convert a finding of acquittal into one of conviction. It is not possible to lay down exhaustive tests for determination of such exceptional cases. See AIR 1962 S. C. 1788, K. Chinna Swamy v. State of Andhra Pradesh. The acquittal order in this case is based on pure assessment of evidence. P. W. 2 is the brother and P. W. 3 is the cook of the informant (p. w. 1 ). As they were interested and there was enmity between the petitioner and some of the accused, the learned Magistrate placed before him the proper approach that some corroboration was essential before their evidence was accepted. He did not place any reliance on the evidence of P. Ws. 4 and 5 and accordingly did not accept the evidence of P. Ws. 1 to 3. Thus, on merits, the order of acquittal is well founded. There is hardly any scope for interference. The first contention is rejected.