Judgment:
A.M. Khanwilkar, J.
1. This Criminal Revision Application is directed against the Judgment and Order dated 30th August, 2000 passed by the Additional Sessions Judge at Mapusa in Sessions Case No. 11 of 1997.
2. Briefly stated, the abovesaid Sessions Case was instituted on the basis of a complaint by the Applicant herein, under Sections 204 and 210 of Code of Criminal Procedure, relating to the commission of offence by the respondent No. 2 and two others (who expired during the trial) punishable under Sections 307, 364, 392, 506 and 342 of Indian Penal Code. The said complaint was originally filed before the Court of Judicial Magistrate, First Class at Mapusa on 9th April, 1990.
3. It would be relevant to point out at this stage that the incident in question occurred on 30th September, 1983 at about 9.30 a.m. The F.I.R. was duly registered in respect of the said incident; and the Police, after investigation, filed 'A' Summary Report, which came to be accepted by the Magistrate.
4. It is the Applicant's case that the Applicant was never informed about the said case having been treated as 'A' Summary or closed. However, it is stated that the Applicant got knowledge about the said development only on 17th February, 1990 and immediately thereafter filed the present private complaint before the Judicial Magistrate, First Class at Mapusa on 9th April, 1990. The Applicant is, therefore, justified in making grievance that it was mandatory on the part of the Magistrate to inform the Applicant before dropping the said proceedings, though commenced on the basis of Police Report, and thus the order passed by the Magistrate accepting 'A' Summary Report is, therefore, vitiated in view of decisions of the Apex Court reported in : 1985CriLJ1521 .
5. Reverting back to the private complaint, as filed by the Applicant, the allegation is that on the, fateful day, the Applicant was going to Mapusa side from House No. M.M.C. 8/4 at Camarcazana, Mapusa, in order to go to Panaji to submit complaint to the Chief Minister of Goa for giving Police protection to the Applicant at Camarcazana, Mapusa and that Smt. Khushali v. Nagvenkar and her daughter was following him for the said purpose. It is alleged that when the Applicant reached near the house of one Joao, or the house known as Battal, at that time suddenly Kashinath (Accused No. 3-now deceased) came to the Applicant and caught hold of his shirt collar and Atmaram (Accused No. 1/Respondent No. 2 herein) having a lathi (tonko) and Krishna (Accused No. 2-now deceased) having a chopper (koita) and rope in his hand came to the Applicant and started assaulting him with the said lathi all over his body i.e. over his head, forehead, both legs, both hands and also on backside of his body and on his back. It is alleged that on account of the said assault, the Applicant sustained injuries and started bleeding and eventually fell on the ground (katcha road). It is alleged that the Applicant shouted out for help but nobody came to help him. In the meantime, one taxi (car) reached at the spot from Acoi side passing towards Mapusa side and it stopped. The passengers in the said taxi and the driver were staring at the Applicant but in a short while a pick-up was reached near the taxi and started blowing horn which compelled the taxi driver to proceed further and he went away. It is alleged that the Applicant was able to recognise the car driver. It is further alleged in the complaint that thereafter Atmaram (Respondent No. 2 herein) assaulted the Applicant with a lathi on the mouth and head due to which the Applicant sustained blood injury and Krishna (Accused No. 2) showed a chopper to the Applicant and told him that they were to kill him. It is alleged that thereafter the documents which were in possession of the Applicant were snatched away by Krishna (Accused No. 2) as well as the silver ring (star ring) which bears the initial and having three stones was snatched away by Atmaram (Accused No. 1- Respondent No. 2). It is further alleged that thereafter all of them caught hold of the Applicant and forcibly removed his shirt which contained more than Rs. 400/- in his pocket and Kashinath (Respondent No. 3) removed the slippers of the Applicant and thereafter they tied the legs and hands of the Applicant. It is alleged that the Applicant became nervous and unconscious for some time. It is further alleged that thereafter the Applicant was lifted by Atmaram and Krishna and was taken to a nearby hill (jungle) from corner side house of one Battal which door was opened. According to the Applicant, the said incident was witnessed by the residents in the locality and also by Kushali Nagvenkar and her daughters. The Applicant has further alleged that after he was carried to the top of the hill (jungle) said Atmaram and Krishna freed the hands and legs of the Applicant and once again Atmaram assaulted the Applicant with a lathi on the back side of his neck. It is further alleged that Atmaram and Krishna caused the Applicant to lie down and tied each hand to each tree in different directions as well as each leg in the same way to each tree. It is alleged that after the Applicant was tied in this manner and after a long time Kalika Bomkar, Kushali and her daughter with Police party and other two persons known as Tatuli reached the spot where the Applicant was tied. The Investigating Officer thereafter drew panchanama and told the said persons to free the legs and hands of the Applicant and accordingly the Applicant was freed and lifted by the Police. The Applicant was thereafter taken in Police Jeep to Asilo Hospital, Mapusa where he underwent treatment. Other details have been given in the written complaint with regard to what followed thereafter. It is specifically mentioned in the said written complaint that the Applicant had lodged complaint dated 7th October, 1983 with the I.G.P. against the Investigating Officer for the harassment caused to him. Similar complaint is stated to have been made to the Chief Minister of Goa on 1st November, 1983 and others to institute C.B.I. enquiry.
6. The Judicial Magistrate, First Class at Mapusa, passed order on the said written complaint on 20th October, 1992 directing the concerned Police to hold an enquiry and submit the report on or before 25th November, 1992. After the necessary enquiry was completed the Judicial Magistrate, First Class at Mapusa examined 16 witnesses and thereafter committed the case for Sessions trial as offence under Section 307, allegedly committed by the Accused was exclusively triable by the Court of Session.
7. The Court of Session after considering the arguments and perusing the enquiry papers framed the following charges on 4th January, 1999.
'CHARGES
I, Shri D. R. Kenkre, Additional Sessions Judge, Mapusa, hereby charge you Atmaram J. Shetye as follows :--
That you on or about the 30th day of September, 83 at about 9.30 a.m. at Camarcazana, Mapusa, you along with the deceased accused Krishna R. Pednekar and Kashinath N. Pullji alias Kashinath Parsekar, in furtherance of common intention voluntarily caused grievous hurt in such a way that if by that act you had caused the death of Sangappa v. Tenginakai, you would have been guilty of murder and thereby committed an offence punishable under Section 307 r/w. 34 of Indian Penal Code and within the cognizance of this Court. Secondly on the same day, time and place you with furtherance of common intention kidnapped the said Sangappa v. Tenginakai, in order to murder him and thereby committed an offence punishable under Section 364 r/w 34 of Indian Penal Code and within the cognizance of this Court. And I hereby direct that you be tried by this Court on the said charges.'
8. The trial, proceeded before the Sessions Judge, which was conducted by the Additional Public Prosecutor on behalf of the Applicant, in view of provisions of Section 225 of the Code of Criminal Procedure. In all 10 witnesses came to be examined on behalf of the prosecution on different dates. P.W. 5 to P.W. 9 were examined on 25th August, 2000. The Public Prosecutor on that day made an application to issue summons to other witnesses, who, according to him, were relevant witnesses. The roznama dated 25th August, 2000 would indicate that the Court observed that last opportunity was given to the prosecution as the case is old and cannot be adjourned. The Court further observed that if witnesses are not made available on the next day the prosecution case would be closed and a statement under Section 313, Criminal Procedure Code would be recorded. The order sheet clearly records that the case was adjourned to 28th August, 2000 at 10.30 a.m. for recording evidence and statement under Section 313, Criminal Procedure Code. Accordingly on 28th August, 2000, evidence of P.W. 10 was recorded; and since no other witness could remain present at such a short notice the Public Prosecutor requested to issue summons, which request was turned down. The order sheet records that no summons will be issued as sufficient opportunity was given to the prosecution well in advance. The matter was then adjourned to next day i.e. 29th August, 2000 for recording evidence and statement under Section 313. Thereafter, on 29th August, 2000 the Applicant filed an application before the Court praying that he should be allowed to assist the prosecution and Public Prosecutor as second party. By the same application the Applicant asserted that he would like to examine other witnesses who were not examined before lower Court as per Section 246, Criminal Procedure Code. The order sheet records that the said application was allowed on 29th August, 2000. Thereafter, an application was filed by the Applicant that witnesses who turned hostile should be prosecuted. The Court ordered that the said application will be considered at the appropriate stage if the Court finds that the witnesses are telling lies. Notwithstanding abovesaid facts, the Court treated the prosecution case as closed and proceeded to record statement under Section 313, Criminal Procedure Code of the Accused on the same day i.e. 29th August, 2000 and posted the matter for Judgment on 30th August, 2000. Immediately on the next day i.e. on 30th August, 2000, the impugned order was pronounced by the Court acquitting Respondent No. 2 as well as the other accused of the alleged offence.
9. The present revision application takes exception to the aforesaid impugned order. According to the Applicant, serious miscarriage of justice has occasioned on account of the approach adopted by the Sessions Court. At the outset, it needs to be mentioned that the present application was filed by the Applicant in person. However, when the matter was taken up for hearing on 15th March, 2001, this Court gave an opportunity to the Applicant to take assistance of an Advocate. Since the Applicant expressed his inability to engage the services of an Advocate the Applicant was given option that the Court would appoint an Advocate as Amicus Curiae. The Applicant agreed for the said proposal and consented for appointment of Shri S. G. Bhobe, Advocate as Amicus Curiae to espouse his case. Accordingly Shri Bhobe was appointed as Amicus Curiae and he has duly assisted this Court in disposing of the present matter.
10. At the out-set, Shri Bhobe, learned Advocate submits that, although the present Application has been filed by the Applicant as revision application the same ought to be treated as Appeal; and, decide it accordingly. According to him, no revision would lie against the impugned order, for the same is an appealable order. Reliance has been placed on the provisions of Section 401 and more particularly Sub-section (4) thereof read with Section 378(4) and 225 of the Code of Criminal Procedure. According to him, although the trial before the Sessions Court was conducted by the Public Prosecutor that would not take away the character of the nature of proceedings which were ignited by the Applicant, as a private complaint. He submits that since the case was exclusively triable by a Court of Sessions, the same was committed to that Court; and by virtue of Section 225 of the Code of Criminal Procedure it was only the Public Prosecutor who could have had conducted the said case and none else. There is also no dispute that the Applicant moved an application before the Sessions Court for permitting him to assist the prosecution and Public Prosecutor as second party and the same was allowed. Accordingly, there is no dispute that the present case commenced on the basis of a private complaint. It is submitted that merely because the case has been conducted by the Public Prosecutor that would not change the nature of the proceedings from private complaint to one commenced on a Police Report. There is a marked distinction between both the proceedings.
It is, therefore, submitted that having regard to the language of Section 378 of the Code of Criminal Procedure, the Applicant would be entitled to assail the correctness of the impugned order only by way of appeal under Section 378; if, this submission is accepted; than no revision would be maintainable, but expressly barred by revision would be maintainable, but expressly barred by virtue of Section 401(4) of the Code of Criminal Procedure. Shri Bhobe has also referred to provisions of Chapter XXVI and more particularly Rule 19 of the Bombay High Court Appellate Side Rules to contend that no prejudice would be caused to the Respondents if the present application is treated as an Appeal under Section 373 of the Code of Criminal Procedure.
11. Before I would proceed to deal with the merits of the arguments, I think it appropriate to deal with this point raised on behalf of the Applicant as to whether the present proceedings should be treated as Appeal, or adjudicated as revision application as filed by the Applicant in person.
12. In this context, Shri J. P. Mulgaonkar, the learned Advocate for the Respondent No. 2 submits that the present application cannot be treated as Appeal inasmuch as Appeal under Section 378(4) can be filed only against an order of acquittal passed in any case instituted upon complaint. He submits that, although the Applicant had filed a private complaint before the Magistrate on the basis of which the present proceedings were initiated, but the same was subsequently committed to the Court of Sessions and was in fact conducted by the Public Prosecutor, it had become a case pursued by the State and no more remained a case instituted upon complaint. Shri Mulgaonkar, Advocate for the Respondent No. 2 to buttress his submissions has placed reliance also on Section 228 of the Code of Criminal Procedure. It is submitted that, this provision, clearly provides that once a case is committed from the Court of Sessions, than the same is to be tried as warrant case instituted on a Police Report and in no other manner. Applying this analogy, it is submitted that once the case is committed to the Court of Sessions it acquires the character of a case instituted upon a police report and triable as a warrant case only; and, therefore, the order passed in such proceedings would not be amenable to appeal under Section 378(4) of the Code of Criminal Procedure at the instance of the complainant. It is further contended by the learned Advocate for the Respondent No. 2 that, at any rate, since there is no recommendation by the Public Prosecutor and the State has not filed any appeal, the present appeal at the instance of complainant is not maintainable.
13. Since the scope and extent of interference by this Court in the present proceedings would essentially depend upon the answer found with regard to the above issue, I would, therefore, prefer to examine this aspect of the matter at the threshold. In my view, the relevant provision for answering this question would be the provision with regard to appeal in case of acquittal. Therefore, it would be apposite to advert to Section 378 of the Code of Criminal Procedure. Sub-Section (1) of the said provision contemplated that save as otherwise provided in Sub-sections (3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court, from an original or appellate order other than High Court or an order of the Court of Session in Revision. Subsection (2) provides that if the order of acquittal is passed in any case the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of Sub-section (3) to the High Court from the order of acquittal. Sub-section (3) postulates that no appeal under Sub-section (1) or Sub-section (2) shall be entertained except with the leave of the High Court. Whereas, Sub-section (4), which is relevant for our case, provides that if such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. Sub-section (5) provides that no application under Sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months. Where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal. Sub-section (6) provides that if in any case, the application for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under Sub-section (1) or Sub-section (2).
14. From the plain language of Section 378, it would appear that different contingencies are provided in which an appeal against acquittal could be maintained. In the present case, there is no dispute that the order of acquittal has been recorded in a case which was originally instituted upon a complaint. The plain language of Sub-section (4) recognises a right of appeal to the complainant against an order of acquittal passed in the case instituted upon complaint. The expression employed is 'in any case instituted upon a complaint', which would surely include even a case later on tried as Session Case due to certain other provisions of the Code. A fortiori, merely because a complaint was committed to the Court of Session, on account of the fact that the offence alleged therein was exclusively triable by that Court, would not change the character of the proceedings, being instituted on a private complaint. It is true that all cases before the Court of Session are to be conducted by the Public Prosecutor by virtue of Section 225 of the Code; but merely because the Public Prosecutor is associated with the conduct of the trial before the Court of Session, that does not mean that the case would be deemed to have been one instituted on a Police Report and cease to be one initiated on the basis of complaint. There is no such express provision. Moreover, the Code recognises the distinction between the Police Case and the case instituted on a private complaint. Sub-section (d) of Section 2 of the Code of Criminal Procedure defines 'complaint' to mean any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. The definition of 'complaint' clearly excludes an allegation made orally or in writing which forms part of the police report. Explanation to this sub-section reads that a report made by a Police Officer in a case which discloses after investigation the commission of a non-cognizable offence shall be deemed to be a complaint and the Police Officer by whom such report is made shall be deemed to be the complainant. In other words, the law recognises the distinction between the case instituted on a complaint and on a police report. This distinction is the essence of the contingencies provided for in Section 378 of the Code. The 'Police Report' has been defined in Section 2(r) of the Code of Criminal Procedure which means a report forwarded by a Police Officer to a Magistrate under Sub-section (2) of Section 173. The right of appeal in favour of the complainant has been bestowed by virtue of this provision, if the order of acquittal is passed in the case instituted upon his complaint. As mentioned earlier, there is no express provision that when the case is committed to the Court of Session, and by virtue of that fact being required to be conducted by the Public Prosecutor, the same ceases to be a case instituted on a complaint. In the circumstances, it would be wholly inappropriate, nay, pedantic approach to assume that the case instituted on such a complaint shall cease to be a case instituted on complaint once it is committed to the Court of Session. But in absence of any such express provision the only conclusion that can be reached is that once a private complaint it would always remain a private complaint. This view is fortified from several provisions of the Code. It will be useful to refer to the scheme of Section 210 of the Code which also recognises the distinction between the two. Therefore, it shall be wholly imprudent to assume that such a case should be deemed to be treated as one instituted upon police report as contended by Respondent No. 2. Reference made to Section 228 to counter the arguments of the Applicant is wholly inappropriate. Section 228 of the Code deals with provision for framing of charge. It would only indicate the procedure that should be followed by the Magistrate in the event the case is transferred to him for trial by the Court of Session. The provision with regard to procedure that should be followed for trial of a case can be of no avail to infer that the proceedings have been instituted on a police report as such.
15. I have, therefore, no hesitation to conclude that the Applicant should have assailed the correctness of the impugned order of acquittal by filing appeal under Section 378(4) of the Code. Since, the application was filed by party in person; and as rightly contended by the Advocate for the Applicant that no prejudice would be caused to the Respondents if the same is treated as appeal, inasmuch as the revision was filed on 8th September, 2000 which is well within limitation provided for under Sub-section (5) of Section 378 of the Code, even if, the same was to be treated as an appeal. Moreover, the grounds on which the impugned order of acquittal is assailed is also mentioned in the Petition. As observed earlier, the present application having been filed by party in person; and, if it was to be treated as appeal, then this Court would surely be justified in re-appreciating the evidence on record to find out whether the Trial Court has committed any error in recording acquittal. No doubt, even if it is to be treated as appeal, the scope of interference in appeal against acquittal has been well defined and, therefore, the examination of the present case will have to be within the parameters of the said jurisdiction.
16. Assuming that the Applicant was to fail in the contention that the present application be treated as an appeal, then the next question would be as to the scope of jurisdiction of this Court in revision. By now, it is well established that the ambit of power of the High Court, in its revisional jurisdiction, does not ordinarily interfere with the judgments of acquittal passed by the Trial Court unless there is manifest error of law or procedure. The interference of the order passed by the Trial Court is limited only to exceptional cases when it is passed under order from glaring illegality or has caused miscarriage of justice or when it is found that the Trial Court has no jurisdiction to try the case or where the Trial Court has illegally shut out the evidence which otherwise ought to have been considered or where the material evidence which clinches has been overlooked. Sub-section (3) of Section 401 expressly prohibits the High Court to convert a finding of acquittal into one of conviction. The High Court can however set aside an order of acquittal if it comes within the ambit of exceptional cases referred to above, but it cannot convert an order of acquittal into an order of conviction and the only course left to the High Court even in such cases is to order re-trial. It would be useful to refer to the decision of the Apex Court in the matter of Vimal Singh v. Khuman Singh and Anr., reported in 1995 (7) SCC 223 which has restated the abovesaid principles regarding the ambit of High Court's power of revision. The learned Advocate for the Applicant has also relied on the scope of interference in revision on the decision of the Apex Court in the matter of Kaptan Singh and Ors. v. State of M. P. and Anr. reported in : 1997CriLJ2987 to contend that where the record indicates that there was lack of judicial approach by the Court below even in such a case the High Court would be justified in interfering in revisional jurisdiction.
17. On the other hand, the learned Advocate for the Respondent No. 2 placed reliance on the decision of the Apex Court in the matter of K. Chinnaswamy Reddy v. State of Andhra Pradesh and Anr. reported in : [1963]3SCR412 , to contend that the High Court can interfere in revision only in exceptional cases when there is a glaring illegality in the point of law and secondly there was miscarriage of justice. I am afraid, the learned Advocate has misread the said decision. The approach of the learned Advocate in persuading this Court to read the statement of law in the said Judgment to mean that all the exceptional situations referred to are to be read conjunctively and not to be read disjunctively, is wrong. This submission is clearly ill advised, as in my view, the law declared by the Apex Court is that the High Court may interfere in revisional jurisdiction when there is a 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. This view is fortified by the latest decision of the Apex Court reported in the matter of Vimal Singh v. Khuman Singh and Anr. (supra). In para 5 of the said decision, the Court has spelt out the different situations, and has not restricted the meaning as is being contended by the Respondent No. 2. Even if one of the exceptional situation, if available is sufficient for interference in revisional jurisdiction. It is not necessary that the manifest error on the point of law should be coupled with flagrant miscarriage of justice. In a given case, where the Court is satisfied that because of the approach adopted, there has been flagrant miscarriage of justice, even that would be an independent ground as is seen from the recent decision in Vimal Singh case (supra).
18. I would, however, examine the present matter in the backdrop of the law declared by the Apex Court with regard to the scope of jurisdiction of the High Court in an appeal against the order of acquittal. Even if this Court was to treat the present proceedings as revision application, it is contended by the learned Advocate for the Applicant that this is a case where the Court below has unjustifiably shut out the legal evidence which was germane for the full and complete adjudication of the matter. It is submitted that, undisputedly, on 28th August, 2000, the Public Prosecutor had filed an application to issue summons to witnesses after P.W. 5 to P.W. 9 were examined on 25th August 2000. There is no dispute that the Sessions Court passed order on the said application giving last opportunity to the Public Prosecutor. The Public Prosecutor had made an application in writing indicating that it was not possible for the complainant to produce evidence on that day. Accordingly, the application mentions that one witness is present today before the Court for giving evidence, but there are other relevant witnesses including Dr. Jog from Goa Medical College who had examined the complainant as also Dr. Neogi from Asilo Hospital, Shri Keshav Parsekar, resident of Pedne, Mapusa, and Shri Marcques D'Souza from Camarcazana, Mapusa. The Public Prosecutor placed on record that the above said witnesses were relevant witnesses, for the doctors would establish the doctrine of corpus delicti and other witnesses would corroborate the prosecution version. On this application, the Court of Sessions ordered that last opportunity is given to the prosecution and as the case is very old it cannot be adjourned. The Court of Session further observed that if the witnesses are made available on the next day they will be examined otherwise 313 Statement will be recorded and in no case summons will be issued to the witnesses. The matter was accordingly deferred only till 29th August, 2000. From the record, it is not clear as to whether on 28th August, 2000, the witnesses, against whom summons were to be issued, were made available to the Court for examination, but the fact remains that one witness who was present before the Court on 28th August, 2000 as is evident from the application of the Public Prosecutor, was presumably not examined. Moreover, on 29th August, 2000 when the matter was taken up, the Applicant made an application to the Court that he be permitted to conduct the prosecution along with the Public Prosecutor as second party. Besides, the said application asserts that the Applicant would like to examine other witnesses which were not examined before the lower Court as per Section 246, Criminal Procedure Code. It is not disputed that this application has been allowed by the Court, but what is intriguing is that the Court instead of permitting the Applicant as well as the Public Prosecutor to examine those witnesses closed the prosecution case and proceeded to record statement under Section 313, thus shutting out the legal evidence that would have come on record and perhaps relevant for the full and complete adjudication of the matter. No doubt, the case relates to offence committed in the year 1983. However, the fact remains that till 1990 the complainant was not aware about the steps taken by the Investigating Agency in pursuing the matter and as soon as the Applicant became aware of 'A' Summary proceedings, he filed the present complaint before the Judicial Magistrate on 9th April, 1990. It is relevant to note that after committal of the case to the Sessions Court charge came to be framed only on 4th January, 1999. It is also not in dispute that on 25th August, 2000 witnesses P.W. 5 to P.W. 9 were present in Court and were examined as prosecution witnesses. On that day, the Public Prosecutor had moved an application for issuing summons to other witnesses, but the Court declined the said request to issue summons on the sole ground that the case was old and the prosecution had enough opportunities. Assuming that the said reason was a good ground for refusing issuance of summons, however, it is beyond comprehension as to how could the prosecution ensure the presence of witnesses in one days time that too the doctors from the Goa Medical College and Asilo Hospital, Mapusa. Naturally, the complainant could not comply with the direction of the Court and the presence of the said witnesses as well as the other witnesses referred to in the said application of the Public Prosecutor could not be secured. Besides this, what is interesting to note is that on 29th August, 2000 itself the Trial Court has entertained the application filed by the complainant for permitting him to conduct the prosecution case and assist the Public Prosecutor as second party. By the self same application another prayer was made by the Applicant mat he would like to examine other witnesses which were not examined by the lower Court as required by Section 246 of the Code. This application has been allowed by the Trial Court on 29th August, 2000, which pre-supposes that the Court intended to grant permission to the complainant to examine other witnesses. Having allowed the said request, it was wholly inappropriate for the Trial Court to proceed to record that the prosecution evidence has been closed and immediately to record 313 Statement of the accused on the same day and also to keep the matter for Judgment on the next date i.e. 30th August, 2000. The haste with which the Trial Court has proceeded in the present case remains unexplained. On the basis of such record any prudent person would think that the approach of the Trial Court has resulted in shutting out the legal evidence. It necessarily follows that the evidence which ought to have been considered by the Court has been overlooked causing miscarriage of justice to the complainant and prosecution. The offence alleged against the accused was a serious offence punishable under Section 307 r/w 34 and also under Section 364 read with 34 of Indian Penal Code. Surely, in such a serious matter, the Court would not proceed in haste only because it is an old matter, however, it is duty of the Court to consider various other relevant factors. The Court should not be obsessed with early disposal of case but has to equally ensure that in disposing the case no injustice is done to either side. True it is, that, delay defeats equity and delay in trial would infract the mandate of Article 21 of the Constitution, but at the same time that would not permit the Court to close the proceedings in the manner as has been done in the present case. The approach of the Court below was obviously inconsistent. No doubt, the Court below refused to issue summons to some of the witnesses, which according to the Public Prosecutor, were relevant witnesses. In the first case, if the application was made by Public Prosecutor, the Court ought to have respected the opinion of the Public Prosecutor, unless it is shown from the record that the application was an abuse of process of Court. Besides that, on 29th August, 2000, the Court below entertained the application filed by the complainant of permitting him to pursue the proceedings along with the Public Prosecutor as second party and that the complainant be permitted to examine other witnesses. This has been overlooked by the Court below and there is nothing on record to indicate that the Court had applied its mind in this behalf before proceeding to order that the prosecution evidence has been closed and for recording the statement of the accused under Section 313.
19. In the circumstances, even if this application was to be treated only as revision application, and not an appeal, even then this was a sufficient ground for interference in revisional power and to pass appropriate orders to meet the ends of justice. In any case, I have opined that the present petition will have to be treated as an appeal. In appeal against acquittal surely this would be cogent ground on which the order of acquittal could be successfully assailed. It was open for me to proceed to analyse and re-appreciate the evidence on record and to find out as to whether the conclusion reached by the Trial Court suffers from any error, but as I have observed earlier, the Trial Court did not permit the legal evidence to come on record and the same was illegally shut out from the evidence. From the stand taken by the Public Prosecutor, before the lower Court, the evidence of witnesses who were to be examined were material for establishing the prosecution case. Instead of appreciating the evidence which has already come on record, I would think it appropriate to remand this matter for retrial so that the entire evidence relevant for examining the guilt of the accused is on record. No doubt, both the learned Advocates have taken me through the entire evidence but it would be inappropriate to express any opinion about the said evidence at this stage, for unwittingly it would prejudice one party or the other. The learned Advocate for the Respondent No. 2 made a fervent Appeal that the case pertains to offence committed in the year 1983 and it would, therefore, be improper to remand the matter to the Trial Court. No doubt, the case pertains to offence committed in the year 1983, but charges were framed only on 4th January, 1999 and that the circumstances in which the same has been decided by the Court is relevant and cannot be wished away. Moreover, the finding reached by this Court is that serious miscarriage of justice has occasioned on account of the approach adopted by the Trial Court and it would be, therefore, the duty of this Court to ensure that appropriate directions are passed to meet the ends of justice.
20. In the circumstances , I am of the considered view that this is a fit case that deserves to be remanded to the Trial Court for re-trial for permitting the prosecution to examine the remaining witnesses, if any, subject however to certain conditions that would find favour with the Trial Court, with a view to ensure that no delay is caused in the final disposal of the matter. The impugned order of acquittal, therefore, cannot be sustained and is quashed and set aside.
21. While parting, I would like to express gratitude and a word of appreciation for Shri S. G. Bhobe, learned Advocate who accepted this brief as Amicus Curiae and rendered very able assistance for the disposal of the present matter.
ORDER
(a) This revision application is treated as an appeal filed by the complainant against order of acquittal.
(b) The appeal is allowed and the impugned order of acquittal dated 30th August, 2000 passed by the Additional Sessions Judge, Mapusa in Session Case No. 11/1997 is set aside.
(c) The matter is remanded to the Sessions Judge, Mapusa for re-trial in accordance with law. The Sessions Judge, Mapusa may finally decide the case expeditiously and preferably within six months from the date of receipt of writ of this Court. Record be sent back to the Trial Court expeditiously.