KHETRABASI SAMAL ETC. versus STATE OF ORISSA ETC.

Citation: [1970] 1 S.C.R. 880 · Decided: 14-08-1969 · Supreme Court of India · Bench: S.M. SIKRI · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

8 80 
KHETRABASI SAMAL ETC. 
v. 
STATE OF ORISSA ETC. 
August 14, 1969 
[S. M. SIKRI, G. K. MITTER AND P. JAGANMOHAN REDDY, JJ.J 
Code of Criminal Procedure (5 of 1898), s. 417(1) and (3)-Case of 
assault-Case against so1ne Gccused started on police report and against 
others on complaint to M'llgistrate-Tlvo cas~s clubbed and tried together-
Accused acquitted-Appeal against acquittal against accused against lVho1n 
case initiated on police report-Whether complainant could file or only 
State competent to file. 
A first information report to the police was lodged against the appellants 
and some others-ten persons in all, for having taken part in an assault 
and causing hurt to the victim of the assault. On the police report, the 
Magistrate took cognizance of the case. 
More than six were after the 
incident, the victim filed a complaint before the Magistrate naming thirty-
one persons (including the ten persons against whom the first in'formation 
was given) as bis assailants, and the Magistrate took cognizance of the case 
against the other twenty-one accused as a separate case. 
On the appli-
cation of the complainant (victim), the two cases, one on the police 
report and the other on the private complaint, were clubbed and tried 
together. 
The Magistrate, on an examination of the evidence, held that 
there was no proof beyond reasonable doubt that the accused persons 
committed the assault and acquitted all of them. The complainant 
then filed an appeal under s. 417(3), Criminal Procedure Code, to the 
High Court. 
The appellants, against whom cognizance of the case was 
taken on the police report, challenged the maintainability of the appeal on 
the ground that the appeal against their acquittal was maintainable only 
if preferred by the State Government under s. 417(1). The High Court 
overruled the objection, re-appraised the evidence of the witnesses, upset 
the finding of the Magistrate and convicted the appellants. 
In appeal to this Court, on the questions : ( 1) As to the maintainability 
of the appeal by the complainant; and (2) Whether the matter should be 
sent back to the High Court for disposal under s. 439 of the Code, 
HELD : (I) Though the two cases could be clubbed together for con-
venience of trial under s. 239 of the Code the nature and identity of the 
cases in relation to their appealability under s. 417 were not altered. In 
the case started against the appellants on the police report the 
appeal 
against acquittal could have been filed only by the State Government, and 
if no such appeal was filed, the complainant could only invoke the revi-
sional powers of the High Court under s. 439 if proper grounds were 
present. [883 A-Cl 
(2) The High Court can exercise its revisional powers under s. 439 
when invoked by a private complainant against an order of acquittal 
against which the State has a right of appeal under s. 417, only in excep-
tional cases when there is some glaring defect in the procedure and there 
is a manifest error on a point o'f law and consequently there has 
been 
a flagrant miscarriage of justice. 
The present case however is one of 
mere appraisal of °'idence. In such a case the High Court under s. 439. 
could not re-examine the evidence or order a retrial. 
Therefore, the 
case was not a fit one for sending back to the High Court. [883 E-F; 884 
E-G; 885 A, F-Hl 
D. Stephens v. Nosibolla, [1951] S.C.R. 284, 
Logendranath Jha 
v. 
Polailal Biswas [1951] S.C.R. 676 and K. Chinnaswamy Reddy v. State 
of A.P. [1963] 3 S.C.R. 412, 418, followed. 
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K. SAMAL v. ORISSA (Mitter, !.) 
881 
CRIMINAL APPELLAT!!: JURISDICTION : 
Criminal 
Appeals 
Nos. 160 and 171 of 1967. 
Appeals by special leave from the judgment and order dated 
May 12, 1967 of the Orissa High Court in Criminal Appeal No. 
194 of 1965. 
S. N. Anand, for the appellants (in Cr.A. No. 160 of 67). 
R. K. Garg, S. C. Agarwal, D. P. Singh, Sumitra Chakravarty 
and Uma Dutt, for the appellants (in Cr.A. No. 171 of 1967). 
V. C. Mahajan and R. N. Sachthey, for the respondent (in 
Cr.A. No. 160 of 1967). 
The Judgment of the Court was delivered by 
Mitter, J. These two appeals by special leave are from one 
judgment of the High Court of Orissa hearing an appeal from 
an order of acquittal of 31 persons accused on charges under 
ss. 147, 323 and 325 of the Indian Penal Code for being mem-
bers of an uqlawful assembly and having voluntarily caused hurt 
and inte

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