LexSTATE OF ORISSA versus NAKULA SAHU & ORS.
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A B c D E F G H 442 STATE OF ORISSA v. NAKULA SAHU & ORS. November 30, 1978 [JASWANT SINGH AND P. S. KAILASAM, JJ.J Code of Crin1inal Procedure, 1898-Sections 435 and 439-Scope of jurisdic- tion of Hi1d1 Court in revision. The respondents in each of the four appeals were convicted and sentenced under s. ~09 IPC by the Sub-Divisional Magistrate. On appeal the Sessions Judge affirmed the conviction and sentences passed against them. In revision the High Court set aside the judgments and orders passed by the trial court and ......., the Sessions Court and acquitted the respondents of all the charges. On the question of (i) the scope of the power of revision of the High. Oourt under s. 439 read with s. 435 Cr. P.C. 1898 and when it should be exercised; and (ii) whether, in arriving at a concurrent finding~ the trial court and the Sessions Judge committed a manifest error on a point of law which had re· suited in flagrant miscarriage of justice. Allowing the appeal, HELD : ( 1) Although the revisional power of the High Court under s. 439 read withs. 435 of the Code of Criminal Procedure, 1898 is as ·wide as th'e power of Court of Appeal under s. 423 of the Code, it is well settled that normally the jurisdiction of the High Court under s. 439 is to be exercised only in ex· ceptional cases when there i~ a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice. In Akalu Ahir v. Ramdeo Rani, [1973] 2 SCC 583 this Court held that in spite of the wide language of s. 435 Cr. P.C. 1898 which em· powered it to satisfy itself as to the correctness, legality or properiety of any ~ finding, :.entence or order recorded or passed by any inferior court situate within the Jimits of its jurisdiction and as to regularity of any proceeding of such in- ferior court and in spite of the fact that under s. 439 of the Code it can exer- cise, inter alia, the power conferred on a Court of appeal under s. 423, the High Court is not expected to act under s. 435 or s. 439 as if it is hearing an appeal. The power being discretionary it has to be exercised judiciously and not arbitrarily or lightly. Judicial discretion means a discretion \Vhich is in- formed by tradition, methodised by analogy and disciplined by system. [447H; 448A-BJ Amar Chand Agorwalla, v. Shanti Bose &. Anr. etc., [1973} 4 SCC 10 and Akalu Ahir v. Ramdeo Ram, [1973] 2 SCC 583 followed. (2) Neither the trial court nor the Sessions Court committed any error of fact or of law in arriving at their conclusions and the High Court misdirected itself in upsetting their concurrent findings ignoring the well recognised princi- ples for the exercise of revisional jurisdiction. From the matefial on record it is clear that the offences with which the respondents were charged were brought home to them beyond reasonable doubt. [ 456E] • . ' ORISSA v. N. SAHU (Jaswant Singh, !.) 443 CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. A 25-28 of 1972. Appeals by Special Leave from the Judgment and Order dated the 9th December, 1970 of the Orissa High Court in Cr!. Rewn. Nos. 188, 190, 191 and 192 of 1968. D. Mukherjee, G. S. Chatterjee for the Appellant. Pishori Lal Arora (Not Present) for Respondent in Cr!. A. No. 25/72 . Frank Anthony, (Cr!. A. 26/72), Har Dayal Hardy (Cr!. A 27- .-. 28/72), Mrs. S. Bhandare, A. N. Karkhnis and Miss Malini Peduvel in Cr!. A Nos. 26-28/72 for Respondents. B c ~ > The Judgment of the Court was delivered by • JASWANT SINGH, J.-By his judgment and order dated November 30, 1965, the Sub Divisional Magistrate, Bhubaneswar convicted Gopinath Patra, respondent in Appeal No. 26 of 1972 under section 409 of the Indian Penal Code and sentenced him to two years rigorous imprisonment and a fine of Rs. 2,000/-. By the same judgment, the Sub Divisional Magistrate also convicted Nakula Sahu, respondent in Appeal No. 25 of 1972, Brahmanhda Misra, respondent in Appeal No. 27 of 1972 and Niranjan Naik, respondent in Appeal No. 28 of 1972 under section 409 read with section 109 of the Indian Penal Code and sentenced each one of them to two years rigorous imprison- ment and a fine of Rs. 2,000/-. By the same judgment, the Sub -_.- Divisional Magistrate also found all the four respondent guilty of the offence under sections 120B of the Indian Penal Code but in view of the fact that they were found guilt
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