This is a revision petition preferred against the acquittal of the accused in S.C No. 136 of 1959 on the file of the learned Addl. Sessions Judge of Tirunelveli. That prosecution related to the murder of a man named Ramaswami Naicker, who undoubtedly received gunshot injuries at the spot of offence (Nadu Street in Varagunar Village) at about sunrise on 17-4-1959, and succumbed to those injuries. The revision proceeding is preferred before us by Seeni Ammal (P.W 1), the wife of the victim, under s. 439, Cr.P.C In view of the importance of clarifying the procedure with respect to petitions of this character, particularly in the context of the restriction of our powers under s. 439 (4), Cr.P.C We have directed the issue of notice to the learned Public Prosecutor for the State, and heard both the learned Public Prosecutor and learned counsel for the revision petitioner extensively, even at the present stage of admission of this petition.

Before proceeding into the facts of the case to any extent, it is necessary to make clear certain implications of the situation itself. The growth of criminal jurisprudence has been a progressive substitution of the idea that grave crime primarily affects the social fabric, since it imperils that fundamental security of persons and property without which society is impossible, for the idea that such crime is a wrong inflicted upon individuals, to be redressed by vengeance. Historically speaking it is only gradually that the lex talionis or the rule of an eye for an eye and a tooth for a tooth, has been superseded by an impersonal scheme of punishment for grave crime, the prosecution for which is primarily the concern of the agencies of the State, precisely as the detection of which is the concern of one limb of the administration, the Department of Police. But, even at present, there are anomalies. The machinery of State adequate as it is for most cases, may function imperfectly or eccentrically in a particular case. That is why, under the Criminal Procedure Code as it stands to-day, even a prosecution for a grave crime may be as a result of a complaint preferred by a private party. Further, where the accused has been improperly acquitted in a prosecution for grave crime, it is again beyond controversy that the State should be primarily concerned, for the fact that a guilty person escapes the retribution of justice, even where the material for convicting him is true and adequate, is one which affects public interest and the welfare of the State, equally with a wrongful conviction. Nevertheless, it may happen that an erroneous acquittal does not always lead to a prompt action by the agencies of the State, it may be for a variety of reasons. Hence in s. 417 (3), Cr.P.C, as now enacted (Amendment Act XXVI of 1955) provision has been made for the private complainant to obtain special leave to appeal from an acquittal. But an appeal from an acquittal and a proceeding in revision differ in this essential respect. Even if we are fully convinced that the acquittal was erroneous, and that there has been a miscarriage of justice, our powers under s. 439 (4), Cr.P.C are circumscribed in the sense that while we might certainly order a re-trial of the case, we cannot in the exercise of revisional jurisdiction, convert a finding of acquittal into one of conviction, and pass an appropriate sentence.

In Harihar v. The State of West Bengal(1) their Lordships of the Supreme Court laid down the law following D. Stephens v. Nosibolla(2) that the revisional jurisdiction conferred on the High Court under s. 439, Cr.P.C was not to be lightly exercised, particularly when it is invoked by a private complainant against an order of acquittal against which the Government also has a right of appeal under s. 417, Cr.P.C in such cases, it must be established clearly that the interests of public justice require interference in order to prevent a gross miscarriage of justice. The jurisdiction is not to be merely invoked because the trial court did not appreciate the evidence properly, and hence a different view is possible. In Direndranath v. Mukundalal Sen(3) it is again stressed that merely because a different view of the evidence can be taken interference in revision would not be justified when there is an application by a private party to set aside an order of acquittal. But this decision appears to be prior to the amendment of s. 417, Cr.P.C pointed out earlier as the decision states the law to be that a private party has no right of appeal against an acquittal as such.

But there is a further difficulty, apart from the undeniable fact that this is an extra-ordinary power, that our power is further circumscribed by the terms of s. 439 (4), Cr.P.C as we have pointed out. In Stephens v. Nosibolla the Supreme Court limited its observations to the exceptional nature of the revisional jurisdiction. But in Logendranath Jha v. P. Lal Biswas(4), their Lordships of the Supreme Court made certain observations exposing another very real difficulty, which might even amount to a dilemma, in the exercise of this jurisdiction. The following passage renders this explicit:

“No doubt, the learned Judge formally complied with sub-section 4 by directing only a retrial of the offence without convicting them, and warned that the court retrying the accused should not be influenced by any expression of opinion contained in his judgment. But there can be little doubt that he loaded 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 his judgment as to the credibility of the prosecution witnesses and the circumstances of the case in general.”

The difficulty emerges clearly from these observations. In order to justify interference in revision against an acquittal at all, even it may be by a direction for retrial the grounds have to be necessarily stated, and stated at some length. The power itself being extraordinary, and not to be invoked merely because a different view of the merits is possible but because in effect there has either been an illegality vitiating the trial, or a gross miscarriage of justice the exercise of this extraordinary power must be justified by reasoning and the discussion of the facts. But, on the contrary, the court holding the retrial must be free, in the interests of justice, to try the case without prejudice or prejudgment and arrive at its independent conclusions, untramelled by the observations of this court. This is to steer between Scylla and Charybdis and we doubt whether such delicate navigation could always be successful. Hence our conclusion is that, from every point of view, it would be far more satisfactory to be seized of the subject matter of an erroneous acquittal amounting to a gross miscarriage of justice in the form of an appeal against that acquittal, and not a revision proceeding. We do not desire to be understood as holding the view that a revision against the acquittal under S. 439, Cr.P.C is inconceivable; particularly where it is upon a ground of manifest illegality, it may not present certain of the difficulties that we have referred to. But where the accused have been erroneously acquitted in a grave crime under such circumstances that the acquittal itself is a gross miscarriage of justice, it is clearly far more satisfactory that we shall be seized of this subject-matter is the form of an appeal against the acquittal, which would at once avoid the embarrassment of directing a retrial without making observations upon the merits which might be prejudicial and also further enable to convict the accused, if that course is justified.

Consequently, we are of the view that the following procedure will be in the best interests of the parties and of the State, in all such cases, and we have consequently no hesitation in commending it. As the law stands at present it is permissible for a party to appeal by special leave against the acquittal under s. 417, Cr.P.C though he is a private party and not the State. But if the party prefers, instead, to come by way of revision under s. 439, Cr.P.C, it would be advisable for such a proceeding to be instituted within two months of the date of the acquittal it will then be possible for us to order immediate notice to the learned Public Prosecutor for the State even before admitting the revision petition, as we have done in the present case. The learned Public Prosecutor could peruse the records on such notice, and satisfy himself whether it is in the interests of justice to press for interference with the acquittal or otherwise. If he is of the former conviction, he may then consider the institution of a regular appeal against the acquittal by the State itself, which would enable us to convict and sentence the accused, setting aside, the order of acquittal if we arrive at the conclusion that this is essential in the interests of justice.

We shall make very few observations upon the prima facie merits of the present revision proceeding. We propose to be as qualified and guarded in our remarks here as possible, as at this stage, we are merely admitting this proceeding in revision and directing the issue of notice to the accused concerned. We have heard Sri S. Mohan Kumaramangalam, for the revision petitioner, who has taken us through the facts of the record, and we have also heard the learned Public Prosecutor for the State. It is sufficient to observe, at this stage, that there seems to be much to be said for the view that proof of guilt at least as far as shooting of the victim by one of the accused is concerned, does not merely depend upon direct evidence, which may be tainted, in the context of bitter factions. There is considerable circumstantial evidence, both relating to blood stains recovered at the spot, the recovery of the gun (M.O 1) of certain bullets and pellets which could have been fired from this gun, and of the testimony of the ballistics expert (P.W 15), with regard to all of which we are not at all satisfied that the total rejection of the evidence is justified. But if this circumstantial evidence has to be taken into account, in corroborating the evidence of direct witnesses, it is sufficient for us to observe at present, that the case might take on a different complexion altogether.

For these reasons, we admit the revision petition, and direct the issue of notice to the concerned accused. It is for the consideration of the learned Public Prosecutor in view of his representations about this case, and of the procedural clarification that we have made above whether he should not institute a petition of appeal against the acquittal by the State, along with a petition to condone the delay, if any bar of limitation has supervened. If such an appeal against the acquittal is instituted and is admitted, it will then be heard along with the present revision proceeding, as the course most likely to subserve the interests of justice. It is needless for us to add that our observations are not intended, in any way whatever to affect the merits of the acquittal itself, after duly hearing the accused or even the admission of any appeal against acquittal which may be instituted in this court.

N.T.R