LAL KISHORE JHAversusSTATE OF JHARKHAND & ANR.

                      [2011] 5 S.C.R. 1015


                      LAL KISHORE JHA                                   A
                                 v.
               STATE OF JHARKHAND & ANR.
                (SLP (Crl.) No. 4848 of 2011)

                          MAY 2, 2011
                                                                        B
           [AFTAB ALAM AND R.M. LODHA, JJ.]

      Penal Code, 1860 - ss.494, 498A - Complaint by wife
under - During trial, accused-husband entered into
settlement and in terms of settlement, he accepted to take              C
complainant back even though he had taken ·a second wife
in the meanwhile - On examination, complainant did not
press the charges but expressed her willingness to live with
her husband and his second wife - However, before the
conclusion of trial she filed petition before the trial court stating   D
that accused-husband had breached the terms of settlement·
and thrown her out of his house - Trial court recalled her for
re-examination as a court witness u/s. 311 and she fully
supported the a/legations made by her in the complaint:....
 Conviction of the accused u/ss. 494 and 498-A - Appellate              E
court held that the order passed by trial court, recalling the
 complainant for examination as a court witness was bad and
 invalid and her evidence as a court witness could not be taken
into account for recording the finding of guilt against the
accused - Revision - High Court set aside the order of the              F
appellate court and restored the order of the trial court - On
 appeal, held: In the facts and circumstances of the case, High
court took the correct view of the matter and its order cannot
be said to be excess of the revisional jurisdiction u/ss. 397 and
401 CrPC - Conviction upheld - Code of Criminal Procedure,
 1973 - ss. 397 and 401 - Revisional jurisdiction - Scope of.           G
    The wife-complainant filed. a complaint against her
husband-petitioner under Section 494 and 498A IPC.
During the trial, the petitioner entered into a settlement .
                               1015                                     1-i
    1016    SUPREME COURT REPORTS                (2011) 5 S.C.R.

A with complainant. In terms of the settlement, he accepted
  to take the complainant back at his house even though
  he had taken a second wife in the meanwhile. The
  complainant was examined before the trial court and she
  did not press charges and showed her willingness to live
s with the petitioner and his second wife. Before the
  conclusion of trial, she filed a petition before the trial court
  stating that the petitioner had breached the terms of
  settlement and thrown her out of his house. The trial
  court recalled her for re-examination as a court witness
c under Section 311, Cr.P .C. On her examination as a court
  witness, she fully supported the allegations made by her
  in the complaint. The trial court convicted the petitioner
  under Section 494 and 498A IPC. The appellate court held
  that the order passed by trial court, recalling the
  complainant for examination as a court witness was bad
D and invalid and her evidence as a court witness could not
  be taken. into account for recording the finding of guilt
  against the accused. In revision, the High Court set aside
  the order of the appellate court and restored the order of
  the trial court. Hence the special leave petition.
E
        Dismissing the special leave petition, the Court
       Held: : In the facts and circumstances of the case,
  High court took the correct view of the matter and its
  order cannot be said to be excess of the revisional
F jurisdiction u/ss.397 and 401 CrPC. (Para 10) [1018-F-G]
        Vimal Singh v. Khuman Singh and Anr. (1998) 7 SCC
    223; MahendraPratap Singh v. Sarju Singh AIR 1968 SC
    707 - held inapplicable.
G                        Case Law Reference:
        (1998) 7 SCC 223            he:d inapplicable Para 3
        AIR 1968 SC 707             held inapplicable Para 3
       CRIMINAL APPEALLATE JURISDICTION: Special Leave
H Petition (Crl) No. 4848 of 2011.
  LAL KISHORE JHA..v. STATE OF JHARKHAND & 1017
                      ANR.

    From the Judgment & Order dated 19.2.2010 of the High              A
Court of Jharkhand at Ranchi in Cr. Rev. No. 933 of 2008.
    Nagendra Rai, Smarhar Singh, Shantanu Sagar (for T.
Mahipal) for the Appellant.
     The following Order of the Court was delivered                    B
                           ORDER
     1. Delay condoned.
    2. ·Heard Mr. Nagendra Rai, learned senior advocate,
appearing for the petitioner.                                          C
      3. The petitioner is convicted under Sections 494 and 498-
A of the Penal Code and is sentenced to rigorous imprisonment
for two years on each count. The sentences are directed to run
concurrently.
                     .            .                                    D
     4. Mr. Rai submitted that the· petitioner was acquitted by
the appellate court and the High Court, while disposing of the
revision filed against the order of acquittal, exceeded. its
jurisdiction in passing an order that resulted into the conviction
of the petitioner. He submitted that in exercise of the powers         E
 under Section 401 of the Code of Criminal Procedure, 1973,
 an order of acquittal cannot be converted into an order of
 conviction and what the High Court could, at best do was to
order a retrial of the petitioner. In support of the submission,
 he relied upon the decisions of this Court in Vimal Singh v.
 Khuman Singh & Anr., (1998) 7 SCC 223 and Mahendra                    F
 Pratap Singh v. Sarju Singh, AIR 1968 SC 707.
      5. We find no merit in the submission of Mr. Nagendra Rai
and we are satisfied that the decisions relied upon by him have
no application to the facts of this case. All that the High Court      G
has done is to set aside the order passed by the appellate court
and restore the order of conviction and sentence passed by t~e
trial court.
     6. At this stage, it will be useful to take a brief look at the
facts and circumstances that led the High Court to interfere in        H
    1018     SUPREME COURT REPORTS                    (2011] 5 S.C.R.


A   the matter. While the trial was going on, the accused purported
    to enter into some sort of a settlement with the complainant (his
    wife). In terms of the settlement, he accepted to take her {the
    complainant) back at his house even though he had taken a
    second wife in the meanwhile. Hence, when the complainant
s   was examined before the trial court she did not press the
    charges but expressed her willingness to live with her husband
    and his second wife. Later on, however, before the conclusion
    of the trial she filed a petition before the trial court stating that
    the accused (the husband) had breached the settlement and
c   thrown her out from his house.
      7. In those circumstances, the trial court recalled her for
  re examination as a court witness under Section 311 of the
  Cr.P.C. On her examination as a court witness, she fully
  supported the allegations made by her in the complaint.
D Eventually, the trial court convicted the petitioner under Sections
  494 and 498-A of the Penal Code.
        8. In appeal, the appellate court held that the order passed
  by the trial court, recalling the complainant for examination as
  a court witness was bad and invalid and her evidence as a
E court witness could not be taken into account for recording the
  finding of guilt against the petitioner.
          9. In revision, the High Court set aside the order of the
    appellate court on this score and consequently the order of the
F   trial court stood restored.
          10. We are fully satisfied that in the facts and circumstances
    of the case, the High Court took the correct view of the matter
    and its order cannot be said to be excess of the revisional
    jurisdiction under Sections 397 and 401 of the Cr.P.C.
G       11. We find no merit in the special leave petition. It is
    dismissed.

    D.G.                         Special Leave Petition dismissed.