LexSATYAJIT BANERJEE AND ORS. versus STATE OF WEST BENGAL AND ORS.
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A B SA TY AJIT BANERJEE AND ORS. v. ST A TE OF WEST BENGAL AND ORS. NOVEMBER 23, 2004 [Y.K. SABHARWAL AND D.M. DHARMADHIKARI, JJ.] Penal Code, 1860 ; Ss. 306 and 498/Code of Criminal Procedure, 1973; Ss. 311 and 401 : C Wife committed suicide due to torturing by husband and /n-laws- Trial Court acquitted all the accused holding the evidence not reliable- High Court directed de novo trial on the ground of lack of evidence, trial Court ought to have invoked its revisional power to examine some of the important witnesses/additional witnesses-Correctness of-:Held : High D Court's directions for fresh trial from stage one and in the light of the formula suggested likely to be mistaken by the trial Court as a mandate to record verdict of conviction-The evidence recorded at the initial trial can not be wiped out/erased-Trial Court directed to take decision on the basis of entire evidence, in accordance with law-Constitution of India- Article 136. E F Revisional Jurisdiction of High Court-Invoking of Due to cruel treatment meted out by the husband and his family members, the wife committed suicide. Mother of the deceased claimed that the First Information Report was lodged immediately after the incident. However, she could not produce the same but produced another FIR which was lodged belatedly. A suicide note stated to be written by the deceased was recovered from the custody of her mother-in-law. The note allegedly disclosed her illicit relationship with a person. However, the mother of the deceased in her deposition stated about physical and G mental torture meted out to her daughter by the husband and in-laws as she could not bear child; and that the suicide note was not in her writing. Other witnesses did not support the case of the prosecution. Trial Court did not accept the case of the prosecution as evidence regarding cruel treatment to the deceased was not reliable. Hence, it H acquitted all the accused. 294 SA TY AJIT BANERJEE v. ST A TE 295 Aggrieved, mother of the deceased preferred a Revision Petition. A Noticing serious infirmities in the case of the prosecution, High Court observed that since the prosecution lacks in bringing necessary evidence, the trial Court ought to have invoked its power under Section 311 Cr.P.C. to examine the father of the deceased and other important witnesses and could have remanded the case for decision afresh, from B stage one. Hence the present appeal. Accused-appellant contended that sub-section (3) of Section 401 Cr.P.C. prohibits High Court in its revisional jurisdiction to convert acquittal into conviction; that the High Court by directing examination of the additional witnesses and making certain observations has indirectly C suggested the trial Court to record a conviction on re-trial; and that since the High Court by directing the trial Court to take a fresh decision from stage one set at naught the evidence already recorded, such directions are without jurisdiction. Respondent-Complainant submitted that the decision of this Court in "Best Bakery case" fully supports the decision of the High Court in remanding the case for re-trial; and that it was incumbent upon trial Court to invoke its power under Section 311 Cr.P.C. to summon all relevant/necessary witnesses and evidence. Disposing of the appeal, the Court HELD : I.I. In exercise of the discretionary jurisdiction under Article 136 of the Constitution and keeping in view the stage of retrial, this Court refrains itself from upsetting the whole judgment of the High Court. However it is necessary to set right some of the uncalled for observations made by the High Court in the impugned judgment directing re-trial. [302-B-C) 1.2. High Court ought not to have directed the trial Court to hold a de nova trial and take decision on the basis of so called "suggested formula'. The High Court in its concluding part of the judgment does state that any observation in its judgment should not influence the mind of the trial Court but, at the same time, the High Court directs the trial Court to take 'a fresh decision from stage one' on the basis of the 'suggested formula'. The said observations and directions are likely to D E F G H 296 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R. A be mistaken by the trial Court as if there is a mandate to it to record the verdict of conviction against the accused regardless of the worth and weight of the evidence before it.
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