GANESHAversusSHARANAPPA & ANR.

                        [2013] 12 S.C R. 400


A                            GANESHA
                                  v.
                       SHARANAPPA & ANR.
                (Criminal Appeal No. 1948 of 2013)
                       NOVEMBER 19, 2013
B
         [CHANDRAMAULI KR. PRASAD AND KURIAN
                     JOSEPH, JJ.]

        Code of Criminal Procedure, 1973:
c       s.401(3) rlw s.386(a) - Revisional power of High Court-
  Explained - High Court converting the acquittal into
  conviction - Held: High Court while exercising the powers of
  revision can exercise all those powers which have been
  conferred on the court of appeal u/s 386 but, in view of sub-s.
D (3) of s. 401, while exercising such power, High Court cannot
  convert a finding of acquittal into one of conviction - In the
  instant case, High Court rightly c.2me to the conclusion that
  it is one of the exceptional cases as the finding of acquittal is
  on a total misreading and peNerse appreciation of evidence
E and rightly set aside the order of acquittal, but it gravely erred
  in converting the order of acquittal into that of conviction,
  instead of directing re-hearing by trial court - Order of High
  Court set aside, but, in the circumstances of the case, re-
  hearing by trial court declined - Penal Code, 1860 - s.324.
F
        s.154 and s.2(d) rlw s.200- 'Informant' and 'complainant'
  - Distinction between - Explained.
       On the basis of a report given by the informant (PW-
  2) alleging that when he made a protest as the accused
G persons were grazing their cattle in his land and thereby
  damaging the crop the appellant assaulted him with a
  stick, an FIR was registered against the appellant and
  other accused persons. The trial court acquitted all the

H                                400
        GANESHA v. SHARANAPPA & ANR.                  401

                                                            A
accused. However, in revision, the High Court set aside
the order of acquittal of the appellant and convicted him
u/s 324 IPC and sentenced him to six months simple
imprisonment with a fine of Rs.5000/-.
    In the instant appeal, it was contended for the         B
appellant that the High Court in revision could not
convert a finding of acquittal into one of conviction.

    Allowing the appeal, the Court

     HELD: 1.1 Sub-s. (1) of s. 401 of the Criminal C
Procedure, 1973 makes it evident that the High Court,
while exercising the powers of revision, can exercise any
of the powers conferred on a court of appeal including
the power u/s 386 of the Code. Section 386(a) authorizes
the appellate court to reverse an order of acquittal, find D
the accused guilty and pass sentence on the person
found guilty. However, sub-s. (3) of s. 401 of the Code
contemplates that the power of revision does not
authorize a High Court to convert a finding of acquittal
into one of conviction. On the face of it, the High Court E
while exercising the powers of revision can exercise all
those powers which have been conferred on the court
of appeal u/s 386 of the Code but, in view of sub-s. (3) of
s. 401 of the Code, while exercising such power, cannot
convert a finding of acquittal into one of conviction. [para F
9] [407-A-B, E-G]

     1.2 In a case where the finding of acquittal is recorded
on account of misreading of evidence or non-
consideration of evidence or perverse appreciation of G
evidence, nothing prevents the High Court from setting
aside the order of acquittal at the instance of the
informant in revision and directing disposal on merits
afresh by the trial court. In the event of such direction,
the trial court shall be obliged to re-appraise the evidence
                                                              H
    402      SUPREME COURT REPORTS             [2013] 12 S.C.R.


A in light of the observation of the revisional court and take
  an independent view uninfluenced by any of the
  observations of the revision al court on merits of the case.
  [para 10] [407-G-H; 408-A·B]

       1.3 Interference with the order of acquittal in revision
8
  is called for only in cases where there is manifest error
  of law or procedure and in those exceptional cases in
  which it is found that the order of acquittal suffers from
  glaring illegality, resulting into miscarriage of justice. The
C High Court may also interfere in those cases of acquittal
  caused by shutting out the evidence which otherwise
  ought to have been considered or where the material
  evidence which clinches the issue has bnen overlooked.
  In such an exceptional case, the High Court in revision
  can set aside an order of acquittal but it cannot convert
D an order of acquittal into that of an orde'r of conviction.
  The only course left to the High Court in such exceptional
  cases is to order re-trial. [para 1O] [408-B-E]

          Bindeshwari Prasad Singh   vs. State of Bihar 2002 (1)
E Suppl. SCR 495     =(2002) 6 SCC 650 - relied on.
       1.4 In the instant case, the High Court rightly came
  to the conclusion that it is one of the exceptional cases
  as the finding of acquittal is on a total misreading and
  perverse appreciation of evidence. On the face of it, the
F High Court rightly set aside the order of acquittal but it
  gravely erred in converting the order of acquittal into that
  of conviction, instead of directing re-hearing by the trial
  court. [para 11] [409-D-E]
G      1.5 Ordinarily, this Court would have set aside the
  order of the revisional court and directed for re-hearing
  by the trial court, but taking into account the nature of
  offence, at such a distance of time, the order of the High
  Court is set aside, and re-hearing by the trial court is
H declined. [para 11 and 13] [409-E; 410-D]
        GANESHA v. SHARANAPPA & ANR.                   403

     2. It is 11oticed that in many of the judgments A
including the instant one, no distinction is made while
using the words 'informant' and 'complainant'. In many
of the judgments, the person giving the report u/s 154 of
the Code is described as the 'complainant' or the 'de facto
complainant' instead of 'informant', assuming that the B
State is the complainant. In a case registered u/s 154 of
the Code, the State is the prosecutor and the person
whose information is the cause for lodging the report is
the infotma11t. This is obvious from sub-s. (2) of s.154 of
the Code which, inter alia, provides for giving a copy of. c
the information to the 'informant' and not to the
 'complainant'. However the complainant is the person
who lodges the complaint. The word 'complaint' is
 defined u/s 2(d) of the Code to mean any allegation made
 orally or in writing to a Magistrate and the person who
                                                            0
 makes the allegation is the complainant, as would be
 evident from s.200 of the Code, which provides for
 examination of the complainant in a complaint-case.
 Therefore, these words carry different meanings and are
 not interchangeable. [para 12) [409-F-H; 410-A-C]
                                                               E
                    Case Law Reference:
    2002 (1) Suppl. SCR 495         relied on     para 10
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1948 of 2013.                                              F

    From the Judgment and Order dated 03.08.2008 of tne
High Court of Karnataka, Circuit Bench, Gulbarga in Criminal
Revision No. 147 of 2007.
   Akshat Shrivastav, lnderjeet Yadav, Sidharth Shrivastava, G
Manjeet Kirpal for the Appellant.
     Sanjay R. Hegde, V.N. Raghupathy for the Respondents.

     The Judgment of the Court was delivered by                H
    404       SUPREME COURT REPORTS              (2013] 12 S.C.R.


A      CHANDRAMAULI KR. PRASAD, .J. 1. Petitioner,
  besides three other accused, was put on trial for offence under
  Section 341, 323, 324 and 504 read with Section 34 of the
  Indian Penal Code. Judicial Magistrate, First Class, Yadgiri
  Taluk, Gulbarga District, Karnataka, by its judgment and order
B dated 14th of September, 2006 passed in CC No. 355 of 2006,
  acquitted them of all the charges.

       2. Aggrieved by the aforesaid, the informant preferred
  Criminal Revision Petition No. 147 of 2007 and the High Court,
  by the impugned judgment and order dated 5th of August, 2008
C maintained the order of acquittal of all accused persons,
  excepting accused no. 3, Ganesha who has been held guilty
  for the offence punishable under Section 324 of the Indian
  Penal Code and sentenced to undergo simple imprisonment
  for a period of six months and also to pay a fine of Rs.5,000/-
D , and in default of payment of fine, to undergo further simple
  imprisonment for a period of three months.

        3. It is against this order that Ganesha has preferred this
    special leave petition.
E
          4. Leave granted.

       5. The prosecution was set in motion on the basis of a
  report given by the informant, Sharanappa, inter alia, alleging
  that he made a protest when he saw the accused persons
F grazing their cattle in his land and thereby damaging the
  mulberry crop. It was alleged that Ganesha, the appellant herein
  assaulted the informant with a Badige (stick) which caused injury
  near his left eye. The rest of the prosecution story is not being
  narrated as the accused who have allegedly participated in that
G have been acquitted and we are not concerned with that in the
  present appeal. The trial court, on appraisal of the evidence,
  came to the conclusion that the prosecution has not been able
  to prove its case beyond all reasonable doubt and, accordingly,
  acquitted all the accused. However, in revision, the High Court
H re-appraised the evidence and found the reasoning assigned
         GANESHA v. SHARANAPPA & ANR.                      405
         [CHANDRAMAULI KR. PRASAD, J.)
by the trial court to be totally perverse and contrary to the A
evidence on record. The High Court relied on the evidence of
Sharanappa, the informant (PW-2), Maremma (PW-4), Sujatha
(PW-5) and Hussainappa (PW-6), who claimed to be the eye-
witnesses of the occurrence. The High Court found Maremma
(PW-4) and Hussainappa (PW-6) to be the independent eye- B
witnesses and reliable. The High Court further observed that
the evidence of Dr. Surekha (PW-1), who examined the injured
and gave the wound certificate (Exhibit 2) corroborated the
case of the prosecution. Accordingly, the High Court set aside
the order of acquittal of the present appellant and convicted him c
as above. While doing so, the High Court observed as follows:

     "17. In my view, the aforesaid reasoning of the trial court
     is totally perverse and contrary to the evidence on record.
     We have seen from the evidence of P.Ws. 2, 4, 5 and 6
     that all of them have come out successfully in their cross- D
     examination and all of them have spoken to the fact of A-
     3 assaulting P.W. 2 with a stick near his left eye and the
     other accused persons catching hold of P.W.2.
     Furthermore, it is also clear from the evidence of P.Ws. 2
     and 5 that the incident happened in the land of the E
     complainant when the cattle belonging to the accused
     went to the land of the complainant for grazing the crop.
     Therefore, no doubt arises as to the place of incident."

     6. Mr. Akshat Shrivastav, learned counsel appearing on F
behalf of the appellant raises a very short point. He submits that
the High Court in revision could not convert a finding of acquittal
into one of conviction and at most, while exercising the
revisional jurisdiction, could direct for re-trial. Mr. V.N.
Raghupathy, learned counsel appearing on behalf pf the G
respondents, however, submits that the High Court having found
the reasoning assigned by the trial court to be totally perverse
and contrary to the evidence on record is not precluded from
setting aside the order of acquittal and convicting the accused
for the offence charged.                                  •
                                                                    H
    406        SUPREME COURT REPORTS                 [2013] 12 S.C.R.


A       7. Having appreciated the rival submissions we find
    substance in the submission of learned counsel for the
    appellant. Section 401 of the Code of Criminal Procedure, for
    short 'the Code', confers power of revision to the High Court,
    same reads as follows:
B
                "401. High Court's powers of revision.- (1) In the
          case of any proceeding the record of which has been
          called for by itself or which otherwise comes to its
          knowledge, the High Court may, in its discretion, exercise
          any of the powers conferred on a Court of Appeal by
c         sections 386, 389, 390 and 391 or on a Court of Session
          by section 307 and, when the Judges composing the Court
          of revision are equally divided in opinion, the case shall
          be disposed of in the manner provided by section 392.

D               (2) No order under this section shall be made to the
          prejudice of the accused or other person unless he has
          had an opportunity of being heard eith13r personally or by
          pleader in his own defence.

               (3) Nothing in this section shall be deemed to
E
          authorise a High court to convert a finding of acquittal into
          one of conviction.

                (4) Where under this Code an appeal lies and no
          appeal is brought, no proceeding by way of revision shall
F         be entertained at the instance of the party who could have
          appealed.

                   (5) Where under this Code an appeal lies but an
           application for revision has been made to the High Court
G         ·by any person and the High Court is satisfied that such
           application was made under the erroneous belief that no
           appeal lies thereto and that it is necessary in the interests
           of justice so to do, the High Court may treat the application
           for revision as a petition of appeal and deal with the same
          accordingly."
H
            GANESHA v. SHARANAPPA & ANR.                       407
            [CHANDRAMAULI KR. PRASAD, J.]

     8. From a plain reading of sub-section (1) of Section 401         A
of the Code it is evident that the High Court, while exercising
the powers of revision, can exercise any of the powers
conferred on a court of appeal including the power under
Section 386 of the Code, relevant portion whereof reads as
follows:                                                               B

    "386. Powers of the Appellate Court. - After perusing
    such record and hearing the appellant or his pleader, if he
    appears, and the Public Prosecutor, if he appears, and in
    case of an appeal under section 377 or section 378, the            C
    accused, if he appears, the Appellate Court may, if it
    considers that there is no sufficient ground for interfering,
    dismiss the appeal, or may -

      (a)     in an appeal from an order of acquittal, reverse
              such order and direct that further inquiry be made,      D
              or that the accused be re-tried or committed for
              trial, as the case may be, or find him guilty and pass
              sentence on him according to law;

              xxx             xxx                             xxx"
                                                                       E
     9. Section 386(a) thus authorizes the appellate court to
reverse an order of acquittal, find the accused guilty and pass ·
sentence on the person found guilty. However, sub-section (3)
of Section 401 of the Code contemplates that the power of
revision does not authorize a High Court to convert a finding F
of acquittal into one of conviction. On the face of it, the High
Court while exercising the powers of revision can exercise all
those powers which have been conferred on the court of appeal
under Section 386 of the Code but, in view of sub section (3)
of Section 401 of the Code, while exercising such power, G
cannot convert a finding of acquittal into one of conviction.

     10 . However, in a case where the finding of acquittal is
 recorded on account of misreading of evidence or non-
 consideration of evidence or perverse appreciation of evidence,
                                                                       H

                                                      i
    408      SUPREME COURT REPORTS                  (2013) 12 S.C.R.


A nothing prevents the High Court from setting aside the order
  of acquittal at the instance of the informant in revision and
  directing fresh disposal on merit by the trial court. In the event
  of such direction, the trial court shall be obliged to re-appraise
  the evidence in light of the observation of the revisional court
B and take an independent view uninfluenced by any of the
  observations of the revisional court on the meirit of the case.
  By way of abundant caution, we may herein observe that
  interference with the order of acquittal in revision is called for
  only in cases where there is manifest error of law or procedure
c and in those exceptional cases in which it is found that the order
  of acquittal suffers from glaring illegality resulting into
  miscarriage of justice. The High Court may also interfere in
  those cases of acquittal caused by shutting out the evidence
  which otherwise ought to have been considered or where the
  material evidence which clinches the issue has been
0
  overlooked. In such an exceptional case, the High Court in
  revision can set aside an order of acquittal but it cannot convert
  an order of acquittal into that of an order of conviction. The only
  course left to the High Court in such exceptional cases is to
  order re-trial. The view, which we have taken finds support from
E a decision of this Court in Bindeshwari Prasad Singh vs. StafG
  of Bihar (2002) 6 SCC 650, in which it has been held as follows:

         "12. ......... Sub-section (3) of Section 401 in terms
         provides that nothing in Section 401 shall be deemed to
F       authorize a High Court to convert a finding of acquittal into
        one of conviction. The aforesaid sub-section, which places
        a limitation on the powers of the revisional court,
        prohibiting it from converting a finding of acquittal into one
        of conviction, is itself indicative of the nature and extent of
G       the revisional power conferred by Section 401 of the Code
        of Criminal Procedure. If the High Court. could not convert
        a finding of acquittal into one of conviction directly, it could
        not do so indirectly by the method of ordering a retrial. It
        is well settled by a catena of decisions of this Court that
H       the High Court will ordinarily not interfeire in revision with
        GANESHA v. SHARANAPPA & ANR.                       409
        [CHANDRAMAULI KR. PRASAD, J.]
    an order of acquittal except in exceptional cases where the A
    interest of public justice requires interference for the
    correction of a manifest illegality or the prevention of gross
    miscarriage of justice. The High Court will not be justified
    in interfering with an order of acquittal merely because the
    trial court has taken a wrong view of the law or has erred B
     in appreciation of evidence. It is neither possible nor
    advisable to make an exhaustive list of circumstances in
     which exercise of revisional jurisdiction may be justified,
     but decisions of this Court have laid down the parameters
     of exercise of revisional jurisdiction by the High Court c
      under Section 401 of the Code of Criminal Procedure in
      an appeal against acquittal by a private party."

      11. In the present case, the High Court in our opinion, rightly
came to the conclusion that it is one of the exceptional cases
as the finding of acquittal is on a total misreading and perverse D
appreciation of evidence. On the face of it, the High Court rightly
set aside the order of acquittal but it gravely erred in converting
the order of acquittal into that of conviction, instead of directing
re-hearing by the trial court. Ordinarily we would have set aside
the order of the revisional court to the extent aforesaid and E
directed for re-hearing by the trial court, but taking into account
the nature of offence, at such a distance of time we would not
like to charter that course.

      12. Before we part with the case, we may observe a F
common error creeping in many of the judgments including the
present one. No distinction is made while using the words
'informant' and 'complainant'. In many of the judgments, the
person giving the report under Section 154 of the Code is
described as the 'complainant' or the 'de facto complainant' G
instead of 'informant', assuming that the State is the.
complainant. These are not words of literature. In a case
 registered under Section 154 of the Code, the State is the
 prosecutor and the person whose information is the cause for
 lodging the report is the informant. This is obvious from sub- H
    410     SUPREME COURT REPORTS                [2013] 12 S.C.R.


A section (2) of Section 154 of the Code which, inter alia,
   provides for giving a copy of the information to the 'informant'
  and not to the 'comp1ainant'. However the complainant is the
  person who lodges the complaint. The word 'complaint' is
  defined under Section 2(d) of the Code to mean any allegation
B made orally or in writing to a Magistrate and the person who
  makes the allegation is the complainant, which would be
  evident from Section 200 of the Code, which provides for
  examination of the complainant in a complaint-case.
  Therefore, these words carry different meanings and are not
c interchangeable. In short, the person giving information, which
  leads to lodging of the report under Section 154 of the Code
  is the informant and the person who files :he complaint is the
  complainant.

       13. In the result, we allow this appeal, set aside the order
D of the High Court and decline to direct re-hearing by the trial
  court.

   R.P.                                          Appeal allowed.