APHC010575852008 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3521] MONDAY, THE THIRTIETH DAY OF JUNE TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL REVISION CASE NO: 1542/2008 Between: THAMMISETTI BANDEAIAH, @ PULI BANDEAIAH, S/O MALLESU, MANASA NURSING HOME STREET, PRODDATUR ROAD, MYDUKUR TOWN, ...PETITIONER AND THE STATE OF AP REP BY ITS PP HYD, rep. by its Public Prosecutor, High Court of A.P., at Hyderabad. ...RESPONDENT Revision filed under Section 397/401 of CrPC praying that in the circumstances stated in the affidavit filed in support of the Criminal Revision Case, the High Court may be pleased to allow this Crl.R.C., and set-aside the conviction and sentence imposed against the revision petitioner in CC.No.113 of 2003 by the II Addl. J.F.C.M., Proddatur, dt.30-11-2004 and the conviction as confirmed and sentence as modified by the II Addl. Sessions Judge, Kadapa at Proddatur in Crl.A.No.185 of 2004, dt.10-10-2008. IA NO: 1 OF 2008(CRLRCMP 2114 OF 2008 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to enlarge the Crl.R.C., in CC.No.113 of 2003 on the file of the II Addl. J.F.C.M., Proddatur now J.F.C.M., Mydukur on bail on such terms and conditions as the Hon'ble Court may deem fit in the circumstances. Counsel for the Petitioner: 1. ANUSHA DONTI REDDY 2. LEGAL AID 2 Dr.YLR,J Crl.R.C.No.1542/2008 Counsel for the Respondent: 1. PUBLIC PROSECUTOR The Court made the following ORDER: This criminal revision case has been filed against the concurrent findings of the conviction and sentence for the offence punishable under Section 411 of the Indian Penal Code, 1860 (for short “the IPC”). 2. The learned Additional Judicial Magistrate of I Class, Proddaturvide judgment dated 30.11.2004 in C.C.No.113 of 2003 found guilty of the offence under Section 411 of IPC and one year rigorous imprisonment and Rs.2,000/- fine were also imposed. The petitioner/accused challenged the said judgment in Criminal Appeal No.185 of 2004 on the file of the II Additional Sessions Judge, Kadapa at Proddatur. The learned Appellate Court confirmed the conviction for the offence punishable under Section 411 of the IPC, but, modified the sentence of rigorous imprisonment of one year to eight months. 3. Ms. D. Anusha, learned counsel for the petitioner while reiterating the grounds of the revision submits that the prosecution could not prove the guilty of the petitioner beyond reasonable doubt. The possession of the stolen articles was not satisfactorily proved, therefore, presumption under Section 114 of the Indian Evidence Act, 1872 (for brevity „the Act‟) cannot be applied; the stolen property was recovered within one week; the accused had already undergone more than 8 months and the revision case may be disposed of in view of the period of imprisonment undergone by the petitioner. 3 Dr.YLR,J Crl.R.C.No.1542/2008 4. On the other hand, Ms. P. Akhila Naidu, learned Assistant Public Prosecutor submits that the prosecution proved the guilt within reasonable doubt. The learned Trial Court rightly found the petitioner guilty under Section 411 of „the IPC‟., and the Appellate Court also found the petitioner guilty and confirmed the judgment of the learned Trial Court,thus, concurrent convictions are suffered by the petitioner; this Court under Section 397 and Section 401 of the Code of Criminal Procedure, 1973 ( for short „the Cr.P.C‟) would not re- appreciate the evidence; there are no material irregularities; misleading of evidence; flagrant miscarriage of justice and urged to dismiss the revision case. 5. While submitting the nominal roles received from the Superintendent of Jails, Central Prison, Kadapa wherein it is mentioned that the petitioner was taken into prison on 10.10.2008 pursuant to the judgment of learned Trial Court and he was released on 22.10.2008. Thus, he was in the jail for 12 days. It is further submitted that the petitioner was arrested and sent to judicial remand on 21.03.2004 and he was released on 08.11.2004. Thus, he was in the prison for more than eight months. 6. Heard the arguments of learned counsel for the petitioner and learned Assistant Public Prosecutor. I have perused the material. 7. Now the point for consideration is: “Whether the order in Crl.A.No.185 of 2004, dated 10.10.2008, passed by the learnedII Additional Sessions Judge, Kadapa at Proddatur, is correct, legal, and proper with respect to its 4 Dr.YLR,J Crl.R.C.No.1542/2008 finding, sentence, or judgment, and there are any material irregularities? And to what relief?” 8. While deciding a criminal revision case filed against acquittal of accused, it is apposite to refer the Hon‟ble Apex Court in Bindeshwari Prasad Singh v State of Bihar1 wherein at Paragraph No.13 it is held as under: 13. ... In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not re-appreciate the evidence to reach a finding different from the trial Court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted.” 9. The Hon‟ble Supreme Court in D Stephens v Nosibolla2 at Paragraph No.10 held as under: “The revisional jurisdiction conferred on the High Court under S. 439, Cr.P.C., is not to be lightly exercised, when it is invoked by a private complainant against an order of acquittal, against which the Govt. has o right of appeal under S. 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely because the lower court has taken a wrong view of the law or mis-appreciated the evidence on record.” 10. The Hon‟ble Apex Court in K Chinnaswamy Reddy v State of AP3, at Paragraph No.7 held as under: “7. It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court 1(2002) 6 SCC 650 2AIR 1951 SC 196 3AIR 1962 SC 1788 5 Dr.YLR,J Crl.R.C.No.1542/2008 only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub-section (4) of S. 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not, convert the finding of acquittal into one of conviction by the indirect method of ordering retrial when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may, however, indicate some cases of this kind which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be: where the trial court has no jurisdiction to try the case but has still acquitted the accused, or where the trial court has wrongly shut out evidence which the prosecution wished to produce. or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal; an in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of S. 439 (4). We have, therefore, to see whether the order of the High Court setting aside the order of acquittal in this case can be upheld on these principles.” 11. In Mahendra Pratap Singh v Sarju Singh4, at paragraph Nos.7 and 8 it is held as under: “7. In revision, the learned Judge in the High Court went into the evidence very minutely. He questioned every single finding of the learned Sessions Judge and gave his own interpretation of the evidence and the inferences to be drawn from it. He discounted the theory that the weapon of attack was a revolver and suggested that it might have been a shot gun or country made pistol which the villagers in the position of Kuldip and Sarju could not distinguish from a revolver. He then took up each single circumstance on which the learned Sessions Judge had found some doubt and interpreting the evidence de novo held, contrary to the opinion of the Sessions Judge that they were acceptable. All 4AIR 1968 SC 707 6 Dr.YLR,J Crl.R.C.No.1542/2008 the time he appeared to give the benefit of the doubt to the prosecution. The only error of law which the learned Judge found in the Sessions Judge's judgment was a remark by the Sessions Judge that the defence witnesses who were examined by the police before they were brought as defence witness ought to have been cross-examined with reference to their previous statements recorded by the police, which obviously is against the provisions of the Code. Except for this error, no defect of procedure or of law was discovered by the learned judge of the High Court in his appraisal of the judgment of the Sessions Judge. As stated already by us, he seems to have gone into the matter as if an appeal against acquittal was before him making no distinction between the appellate and the revisional powers exercisable by the High Court in matters of acquittal except to the extent that instead of convicting the appellant he only ordered his retrial. In our opinion, the learned judge was clearly in error in proceeding as he did in a revision filed by a private party against the acquittal reached in the Court of Session. 8.The practice on the subject has been stated by this Court on more than one occasion, In D. Stephens v. Nosibolla, 1951 SCR 254 = (AIR 1951 SC 196), only two grounds are mentioned by this Court as entitling the High Court to set aside an acquittal in a revision and to order a retrial. They are that there must exist a manifest illegality in the judgment of the Court of Session ordering the acquittal or there must be a gross miscarriage of justice. In explaining these two propositions, this Court further states that the High Court is not entitled to interfere even if a wrong view of law is taken by the Court of Session or if even there is mis-appreciation of evidence. Again, in Logendranath Jha v. Polailal Biswas, 1951 SCR 676 = (AIR 1951 SC 316), this Court points out that the High Court is entitled in revision to set aside an acquittal if there is an error on a point of law or no appraisal of the evidence at all. This Court observes that it is not sufficient to say that the judgment under revision is "perverse" or "lacking in true correct perspective". It is pointed out further that by ordering a retrial, the dice is loaded against the accused, because however much the High Court may caution the Subordinate Court, it is always difficult to re-weigh the evidence ignoring the opinion of the High Court. Again in K Chinnaswamy Reddy v. State of Andhra Pradesh, 1963 (3) SCR 412 = (AIR 1962 SC 1788), it is pointed out that an interference in revision with an order of acquittal can only take place if there is a glaring defect of procedure such as that the Court had no jurisdiction to try the case or the Court had shut out some material evidence which was admissible or attempted to take into account evidence which was not admissible or had overlooked some evidence. Although the list given by this Court is not exhaustive of all the circumstances in which the High Court may interfere with an acquittal in revision it is obvious that the defect in the judgment under revision must be analogous to those actually indicated by 7 Dr.YLR,J Crl.R.C.No.1542/2008 this Court. As stated not one of these points which have been laid down by this Court was covered in the present case. In fact on reading the judgment of the High Court it is apparent to us that the learned judge has re-weighed the evidence from his own point of view and reached inferences contrary to those of the Sessions judge on almost every point. This we do not conceive to be his duty in dealing in revision with an acquittal when Government has not chosen to file an appeal against it. In other words, the learned Judge in the High Court has not attended to the rules laid down by this Court and has acted in breach of them.” 12. In Ram Kishan v. Harmit Kaur5, at paragraph No.9 it is held as under: “9. It is true that the High Court as an appellate Court can set aside an order of acquittal. In doing so, the High Court has to review the evidence upon which the order of acquittal is founded. The High Court is to consider the views of the trial Judge as to credibility of the witnesses. The High Court is also to keep in view the presumption of innocence in favour of the accused and the right of the accused to the benefit of doubt. Finally the High Court is to give reasons that the acquittal was not justified. The acquittal by the Sessions Judge cannot be said to be against the evidence or in disregard of evidence. Nor can the acquittal be said to be in violation of the principles of criminal jurisdiction.” 13. In Kotaiah v. G. Venkateshwara6, at paragraph Nos.19, 20 & 21 it is held as under: “19. We are of the opinion that the entire approach made by the High Court in dealing with the Criminal Revision filed against acquittal by the private party is contrary to the principles laid down in the decisions referred to above. Notwithstanding the fact that sub-section (4) of Section 439 does not authorise the High Court to convert a finding of acquittal into one of conviction, it has in fact contravened this provision by recording a finding of guilt against the accused and directing the Trial Court to convict them after a retrial. There is no question of lack of jurisdiction in the Trial Court to try the case; nor was any attack made that any evidence has been shut out at the trial. Whether the dying declaration, Ext. P. 15, by Ratnababu can be taken into account regarding the attack on Koteswara Rao, is a matter which the Trial Court was entitled to decide one way or the other. If its view was wrong, the High Court could have gone into that aspect and differed from this opinion of the Sessions Court if the State had filed an appeal 5AIR 1972 SC 468 6AIR 1973 SC 1274 8 Dr.YLR,J Crl.R.C.No.1542/2008 against acquittal. Further the mere fact that the learned Trial Judge held that this piece of evidence is not relevant, while considering the attack on Koteswara Rao, does not amount to shutting out of evidence at the trial. In fact that evidence had already come on record. Therefore, in this case there has been no shutting out at the trial of any evidence which the prosecution wanted to adduce or the defence wanted to lead. All available evidence has been let in by both the prosecution and the accused. 20. Nor can it be stated that there has been any glaring defect in the procedure or a manifest error on a point of law and consequently leading to a flagrant miscarriage of justice. As mentioned earlier, sub-section (4) of Section 439 forbids a High Court from converting a finding of acquittal into one of conviction by an indirect method of ordering retrial when the High Court itself cannot directly convert a finding of acquittal into a finding of conviction. The High Court, in our opinion, has missed these very important limitations on its power to set aside the finding of acquittal in revision which could be done only in very exceptional circumstances. In the case on hand, the High Court was not justified in considering the evidence in such detail if it was really going to order a retrial. Such a detailed consideration of evidence and an expression of opinion about the guilt of the accused, in our opinion, has really loaded the dice against the accused when the case goes back for retrial. Much stress has been laid by the High Court that though substantive charges had been framed against the accused read with Section 34 or alternatively with Section 149 I.P.C. the Trial Court has not recorded any finding in this regard. Here again, the High Court's view is erroneous. We have already referred to the finding recorded by the Trial Court that in view of the definite case of the prosecution and the nature of the evidence, none of the accused can be held constructively liable. It is on that ground that the Trial Court has not found the accused constructively guilty. 21. We have indicated the reasons, which promoted the High Court to order a retrial. The consequence of this will be to put considerable strain on the accused who have already gone through a trial at considerable stress and expense. After going through the judgment of the learned Sessions Judge, we cannot certainly say, particularly in view of the evidence on record that either the acquittal of the twenty-two accused or the acquittal of the eight convicted accused of the rest of the charges was not justified. At any rate, it may be safely stated that the learned Sessions Judge has taken into account all the relevant circumstances. It may be that there are slight mistakes in some of the reasons given by him but the judgment asa whole shows that he has really applied his mind to the various pieces of evidence before passing the order of acquittal in the manner he has done. In the particular circumstances of this case, the interference in revision by the High Court at the instance of the private party was 9 Dr.YLR,J Crl.R.C.No.1542/2008 not justified. The two appeals filed by the convicted accused, namely, Criminal Appeals Nos. 201 and 202 of 1969 have not been dealt with by the High Court on merits. The appellants therein have a right to have those appeals heard and disposed of by the High Court according to law.” 14. In Akalu Ahir v. Ramdeo Ram7, at paragraph No.10 it is held as under: “10. No doubt, the appraisal of evidence by the trial Judge in the case in hand is not perfect or free from flaw and a Court of appeal may well have felt justified in disagreeing with its conclusion, but from this it does not follow that on revision by a private complainant, the High Court is entitled to re-appraise the evidence for itself as if it is acting as a Court of appeal and then order a re-trial. It is unfortunate that a serious offence inspired by rivalry and jealousy in the matter of election to the office of village Mukhia, should go unpunished. But that can scarcely be a valid ground for ignoring or for not strictly following the law as enunciated by this Court.” 15. In Ramesh Chandra v. A.P. Jhaveri8, at paragraph Nos.6, 7 it is held as under: “6. In the case of K. Chinnaswamy Reddy v. State of Andhra Pradesh, (1963) 3 SCR 412 = (AIR 1962 SC 1788) this Court mentioned the circumstances under which an order of acquittal can be set aside in revision by the High Court and observed in this context: "We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be: where the trial court has no jurisdiction to try the case but has still acquitted the accused, or where the trial court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal; and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of S. 439 (4)." It would follow from the above that where an acquittal is based on the compounding of an offence and the 7AIR 1973 SC 2145 8AIR 1973 SC 84 10 Dr.YLR,J Crl.R.C.No.1542/2008 compounding is invalid under the law, the acquittal would be liable to be set aside by the High Court in exercise of its revisional powers. As the acquittal of the appellant by the trial court in the present case was based upon the compounding of an offence which was not compoundable, the High Court in our view rightly set aside the acquittal of the appellant. 7. It is no doubt true that the High Court acted suo motu in setting aside the acquittal of the appellant, but that fact would not show that there was any irregularity in the procedure adopted by the High Court. The opening words of Section 439 of the Code of Criminal Procedure, viz., "in the case of any proceedings the record of which has been called for by itself or which has been reported for orders or which otherwise comes to its knowledge", as observed by this Court in the case of The State of Kerala v. Narayani Amma Kamala Devi, (1962) Supp 3 SCR 943 = (AIR 1962 SC 1530) produce the result that revisional jurisdiction can be exercised by the High Court by being moved either by the convicted person himself or by any other person or suo motu on the basis of its own knowledge derived from any source whatsoever without being moved by any person at all. All that is necessary to bring the High Court's powers of revision into operation is such information as makes the High Court think that an order made by a Subordinate Court is fit for the exercise of its powersof revision.” 16. In Amar Chand v. Shanti Bose 9 at Paragraph No.20 it is held as under: “20. Even assuming that the High Court was exercising jurisdiction under Section 439, in our opinion, the present was not a case for interference by the High Court. The Jurisdiction of the High Court is to be exercised normally under Section 439, Criminal Procedure Code, only in exceptional cases, when there is a glaring defect in the procedure or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of the justice. The High Court has not found any of these circumstances to exist in the case before us for quashing the charge and the further proceedings.” 17. In SatyendraNath v. Ram Narain10 at Paragraph No.16 it is held as under: “16. The High Court has thus transgressed the narrow limits of its revisional jurisdiction under Section 439 (4) of the Code of 9AIR 1973 SC 799 10AIR 1975 SC 580 11 Dr.YLR,J Crl.R.C.No.1542/2008 Criminal Procedure. The judgment of the Sessions Court did not suffer from any manifest illegality and the interests of justice did not require the High Court to interfere with the order of acquittal passed by the Sessions Court. Any fair assessment of the evidence of the eye-witnesses would show that the acquittal of the appellants led to no miscarriage of justice.” 18. In Pathumma v. Muhammad11 at Paragraph No.6 it is held as under: “…We are afraid, the learned Judge of the High Court, committed an error in making a re-assessment of the evidence and coming to a finding that the appellant No. 2 was not the illegitimate child of the respondent. We have ourselves considered the evidence on record and we agree with the learned Magistrate, who had taken much pains in analysing the evidence, that the appellant No. 2 was the illegitimate child of the respondent. The High Court in its revisional jurisdiction was not justified in substituting its own view for that of the learned Magistrate on a question of fact.” 19. Keeping in view of all the principles laid down in the judgments referred supra, I shall proceed to decide this Revision Case without there being any iota of re-appreciation of evidence by sitting like a second appellate court. 20. To prove the guilt of the petitioner the prosecution examined P.Ws1 to 8 and marked Ex.P1 to 15. It is not in dispute that M.O.1 to 3 were stolen by unknown offenders. M.O.1 to 3 were belonging to P.W.1; M.O.1 to 3 are Hercules bicycles. Vide Ex.P.8, P.10 and P.13 it is evident that bicycles of P.W.1 to 3 were stolen by unknown offenders. Report given by P.Ws.1 to 3 in Exs.P.1 to P.3 also confirms the same. Exs.P.6 and P.7 i.e., Panchanama dated 27.10.2003 contains signatures of P.Ws.4 and 5 who are mediators. Ex.P.15 is the mediatornama dated 27.10.2003 duly supported by the police 11AIR 1986 SC 1436 12 Dr.YLR,J Crl.R.C.No.1542/2008 officers who arrested the petitioner. Indeed, the evidence of the witnesses of the prosecution cannot be reappreciated at this stage of revision in view of the judgment of the Hon‟ble Apex Court in 21. It is not in dispute that three material objects were recovered from the possession of the petitioner. The petitioner had not claimed the three bicycles as a owner. As observed supra, the petitioner had undergone more than 8 months of imprisonment in Central Prison, Kadapa. In view of the concurrent finding and of the guilt and also the above observations of this Court, the conviction under Section 411 of „the IPC.,‟ shall be maintained. 22. . In the result, this Criminal Revision Case is dismissed. No order as to costs. As a sequel, Miscellaneous petitions, if any pending, shall stand closed. _________________________ DR. Y. LAKSHMANA RAO, J Date: 30.06.2025 KAS 13 Dr.YLR,J Crl.R.C.No.1542/2008 198 THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL REVISION CASE No.1542 of 2008 Date:30.06.2025 KAS