ORIGINAL JURISDICTION - Orissa High Court

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6. The learned trial court, after discussing the evidence on record, held
that the prosecution has failed to prove its case and hence acquitted the
accused persons of the offences invoking Section 235(1) of the Code of
Criminal Procedure, 1973 (hereinafter referred to as “the Code” for brevity)
due to want of sufficient evidence.
7. In course of hearing of the revision, the learned counsel for the
petitioner pointed out several infirmities in the judgment and argued to set
aside the order of acquittal. The learned counsel for Opp. Parties No.2 to
11, on the other hand, supported the findings recorded by the learned trial
Court and further urged that the revisional court should not lightly interfere
with the order of acquittal of the lower court. Way back in 1962, the apex
Court in K.Chinnaswamy Reddy V. State of Andhra Pradesh and
another, reported in A.I.R. 1962 SC 1788 : (1963) 3 SCR 412 has laid down
that it is open to a High Court in revision to set aside an order of acquittal
even at the instance of the private parties, though the State may not have
thought it fit to appeal. However the apex Court cautioned that the
jurisdiction should be exercised by the High Court only in exceptional cases,
when there is some glaring defect in the procedure or there is manifest error
on a point of law and consequently there has been a flagrant miscarriage of
justice. Sub-Section (4) of Section 439 of the Code of Criminal Procedure,
1908 forbids 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
INDIAN LAW REPORTS, CUTTACK SERIES [2010]
conviction. The apex Court has further ruled that only in exceptional cases
such power should be exercised. But it is not possible to lay down the
criteria for determining such exceptional cases which would cover all
contingencies. However, the apex Court has pointed out that 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 or where the appeal
court has wrongly held evidence which was admitted by 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 are not compoundable, are instances in
which revisional power can be exercised for setting aside of the order of
acquittal. In Logendranath Jha & others V Shri Polailal Biswas, (1951)
SCR 676; the Apex Court has cautioned against a discussion of the
evidence and expressing opinion in the judgment in a Criminal Revision
against acquittal on the ground that there can be little doubt that by doing so
he shall load the dice against the appellants, and it might prove difficult for
any subordinate judicial officer dealing with the case to put aside altogether
the strong views expressed in the judgment as to the credibility of the
prosecution witnesses and the circumstances of the case in general.