LexBISWANATH GHOSH versus STATE OF WEST BENGAL & ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
BISWANATII GHOSH A v. '"'( STATE OF WEST BENGAL & ORS. FEBRUARY 16, 1987 [A.P. SEN AND V. BALAKRISHNA ERADI, JJ.] B Constitution of India, 1950, Article 136-lnterference by Supreme . j Court with an oraer of acquittal recorded by the High Court at the instance of a private complaint, permissiblity. - -r Code of Criminal Procedure, 1973, section 385, scope-Appeal· c disposed of in the absence of the records from the Sessions Judge and when even notices for the grant of bail were not issued, solely relying on the concession made by the Public Prosecutor as to the discrepancy in the number of injuries found on the deceased and the witnesses' deposition is vitiated and bad in law. D Respondents 2 to 9 preferred an appeal to the Calcutta High Court against their conviction and sentence dated 19.3. 1984. On 22.3. 1984 a Division Bench of the High Court admitted the appeal but did not grant bail on that date. Within a fortnight thereafter, i.e. on ~ 12.4. 1984, the application for bail moved by the Respondents came up before the Bench for consideration. The appeal was not set for hearing E on that day. The records which had been requisitioned from the Court of the Additional Sessions Judge had not been received and notices of the bail had not been issued. Acting on an alleged concession made by the Public Prosecutor, the Bench allowed the appeal itself and acquitted 1'. the respondents. The appellant-complainant's Special Leave Petition No. 2025/84 dated 15. 10.1984 against the said orders of acquittal was F ~ allowed to be withdrawn to move the High Court for review. The appel- lants' review petition dated 5. 12. 1984 having been dismissed on the ground that the High Court had no power to review its judgment under the Code of Criminal Procedure, 1973, the appellant bas now come in appeal by special leave. G Allowing the appeal, the Court, ~ HELD: 1. Normally, the Supreme Court, as a matter of practice, is reluctant to interfere with an order of acquittal recorded by the High Court at the instance of a private complainant, hut the circumstances of the case are such that there is no other alternative hut to interfere in this H 305 i 306 SUPREME COURT REPORTS [1987] 2 S.C.R. . A case. The procedure adopted by the High Court was not in consonance ) · with the procedure establlished by law and has resulted in flagrant miscarriage of justice. [306H; 307 Al Under Section 385 of the Code of Criminal Procedure, 1973 it was obligatory for the High Court to have fixed a date for the hearing of the B appeal and sent for the records of the Court of Sessions and thereafter hear the parties on merits. It does no credit to any branch of administration of +- justice that an appeal against conviction or acquittal should be allowed without the Appellate Com1 having the records before it and without -:.r ' persuing the evidence adduced by the prosecution. Assuming that the learned Public Prosecutor conceded that there was no evidence, the c High Court had time to satisfy Itself upon perusal of the record . that there was no reliable and credible evidence to warrant the conviction of the atcused under s. 148 and s.302 read with s. 149 of the Indian Penal Code. [308B-E] CRIMINAL APPELLATE JURISDICI10N: Criminal Appeal D No. 94Of1987. From the Judgment and Order dated 8.2.1985 of the Calcutta High Court in Crl. A.No. 112 of 1984. ~ Pari jat Sinha and B .D. Ahmed for the Appellant. E K.C. Aggarwala and P.K. Chakravarthy for the Respondents. The Order of the Court was delivered: _.- ORDER ~ F Special leave granted. Arguments heard. The short question involved in this appeal is whether the High Court was justified in allowing the appeal preferred by the accused persons against their conviction under s.148 and s.302 reads with s.149 G of the Indian Penal Code, 1860 without having the records of the Court • of Sessions before it and without perusal of the evidence adduced by \he prosecution. "' Normally, this Court, as a matter of practice, is reluctant to interfere with an order of acquittal recorded by the High Court at the H instance of a private complainant, but the circumstances of the case BISWANATH GHOSH v. STATE OF WEST BENGAL 307 are such that there is no other alternative for us but to interfere. We A wish to mention that earlier the Court had in Special Leave Petition (Cr!.) No. 2025/84 dated 15.10.1984 allowed the petitioner-com- plaina
Excerpt shown. Read the full judgment & AI analysis in Lexace.