Manju Goel, J.
1. This revision petition is directed against the judgment dated 16.6.2000 by which Shri R.S.Verma, Addl. Sessions Judge, Delhi acquitted the respondents 1 to 3 in case FIR No. 217/91 P.S. Civil Lines under Sections 302/364/201/34 of Indian Penal Code. The petitioner, Durga Devi, is the complainant who lodged the FIR reporting that her brother, Prem Kumar Dua, who left her house on 11.6.1991 along with respondent No. 1, Vinod Kumar, had disappeared and the respondent No. 1 on enquiry from him declined to give any information about her brother. After investigation the charge-sheet was filed under Sections 302/364/201/34 of Indian Penal Code. The learned Additional Sessions Judge after trial and examination of the respondents under Section 313 of the Code of Criminal Procedure (hereafter referred to as the `Code') acquitted the respondents 1 to 3 holding that the prosecution case was not free from all reasonable doubts. In the revision petition, the petitioner seeks setting aside the order of acquittal and conviction of the respondents 1 to 3.
2. The present judgment is to dispose of the preliminary points raised by the learned counsel for the accused and, thereforee, will not deal with the merit of the revision petition. The preliminary points raised are as under:-
a) Whether a private complainant can invoke the revisional jurisdiction of this court to challenge a judgment of acquittal if the state has not opted to file an appeal?
b) If the private party has such a right to file the revision petition, whether the judgment of acquittal can be converted into one of conviction?
3. Section 378 of the Code provides for appeals against acquittal. Such right has been given to (1) The State Government, (2) The Central Government when the order of acquittal is passed in any case investigated by the Delhi Special Police Establishment or by any other agency empowered to investigate into an offence under any Central Act, and (3) to the complainant when the order of acquittal is passed in a case instituted on a complaint. No right to appeal is provided to the complainant or informant when the case is instituted on a police report. At the same time no provision of the Code debars such a complainant from seeking any relief. Nor does any specific provision of the Code declare a complainant in a case instituted on a police report to be competent to file either an appeal or revision. The Supreme Court has recognised the right of a third party like the complainant to seek revision against a judgment of acquittal. The earliest of such judgment can be said to be that of D. Stephens v. Nosibolla reported as : 1951CriLJ510 . The latest pronouncement of the Supreme Court on this point is available in the case of K. Pandurangan etc. v. S.S.R. Velusamy and Anr. reported as : 2003CriLJ4964 . Dealing with this aspect in the case of K.Pandurangan (Supra), the Supreme Court has given the following decision:
'So far as the first question as to the maintainability of the revision at the instance of the complainant is concerned, we think the said argument has only to be noted to be rejected. Under the provisions of Code of Criminal Procedure, 1973, the Court has suo motu power of revision, if that be so, the question of the same being invoked at the instance of an outsider would not make any difference because ultimately it is the power of revision which is already vested with the High Court statutorily that is being exercised by the High Court. thereforee, whether the same is done by itself or at the instance of a third party will not affect such power of the High Court. In this regard, we may note the following judgment of this Court in the case of Nadir Khan v. The State (Delhi Administration). : 1976CriLJ1721
4. The revisional jurisdiction can be exercised by this court even suo moto whenever it is essential to examine correctness, legality or propriety of any finding, sentence or order recorded or passed as to the regularity of the proceedings of any inferior court. Since even a suo moto action is permissible under Section 397 of the Code, there can be no bar on a third party invoking the jurisdiction and inviting attention of the High Court that an occasion to exercise the power has arisen.
5. The second question is the ambit of the power of such revision.
6. In D. Stephens v. Nosibolla (Supra) the Supreme Court said in unequivocal terms:
'The revisional jurisdiction conferred on the High Court under s. 439 of the Code of Criminal Procedure is not to be lightly exercised when it is invoked by a private complainant against an order of acquittal, against which the Government has a right of appeal under s. 417. It could be exercised only in exceptional cases where the interest of public justice require interference for the correction of a manifest illegality or the prevention of a gross miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely because the lower Court has taken a wrong view of the law or misappreciated the evidence on the record.'
7. This view has been echoed by the Supreme Court in several subsequent judgments. The view that has consistently emerged is that the revision by a private party against acquittal is entertainable only in exceptional circumstances and that too very cautiously. The circumstances in which a revision may be entertained are referred as those where the interest of public require interference for the correction of a manifest illegality or for prevention of gross miscarriage of justice.
8. Connected herewith is the question about the options open to the High Court in case a judgment of acquittal, when examined within the parameters laid down by D. Stephens v. Nosibolla (Supra), is found to call for interference. The High Court cannot convert the acquittal into conviction. The earlier Code of 1898 also gave similar powers to the High Court by Section 439. The earlier Code and the present one by Sections 439(4) and 401(3) respectively have imposed a restriction by enacting that the revisional jurisdiction cannot be exercised to convert an acquittal into conviction:
'Sec. 401. High Court's powers of revision.-
(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.'
9. In view of such clear and categorical bar to conversion of acquittal into conviction, the option open to the High Court is only to send the case back to the trial court for re-trial or for re-appreciation of evidence. One must hasten to add that such re-trial or re-appreciation of evidence cannot be a substitute of conviction. The High Court cannot covert the acquittal into conviction by ordering a re-trial or re-appreciation of evidence. A retrial or reappreciation is permissible only in a situation where a re-trial or re-appreciation is found necessary on account of trial court's failure to take evidence admissible in law or on account of the trial court having taken evidence not permissible in law or on account of a manifest error in exercising jurisdiction by the trial court or on account of the fact that the trial court has left out of consideration legally adduced evidence or has taken into consideration evidence which was inadmissible. The revisional court will not interfere simply because on appreciation of evidence it comes to a different conclusion. Only when the finding of the trial court is perverse or is manifestly erroneous can the High Court send the case back for retrial or reappreciation of evidence. Law on this point has been amply clarified by several judgments.
10. In a recent pronouncement the Supreme Court in the case of Bindeshwari Prasad Singh alias B.P. Singh and Ors. v. State of Bihar (Now Jharkhand) and Anr. reported as : 2002CriLJ3788 can be quoted to illustrate the point:
'12. We have carefully considered the material on record and we are satisfied that the High Court was not justified in re-appreciating the evidence on record and coming to a different conclusion in a revision preferred by the information under Section 401 of the Code of Criminal Procedure, Sub-section (3) of Section 401 in terms provides that nothing in Section 401 shall be deemed to 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 convert a finding of acquittal into one of conviction, is itself indicative of the nature and extent of 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 the conviction directly, it could not do so indirectly by the method of ordering a re-trial. It is well settled by a catena of decisions of this Court that the High Court will ordinarily not interfere in revision with an order of acquittal except in exceptional cases where the 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 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 under Section 401 of the Code of Criminal Procedure in an appeal against acquittal by a private party. (See : 1951CriLJ510 : D. Stephens v. Nosibolla; : [1963]3SCR412 : K.C. Reddy v. State of Andhra Pradesh; : 1973CriLJ1404 : Akalu Ahir and Ors. v. Ramdeo Ram : : AIR1975SC1854 : Pakalapati Narayana Gajapathi Raju and Ors. v. Bonapalli Peda Appadu and Anr. and : 1968CriLJ665 : Mahendra Pratap Singh v. Sarju Singh)'
11. In the case of D. Stephens v. Nosibolla (Supra) the Supreme Court permitted interference by the revisional courts in two situations; (1) where there was manifest illegality, (2) where there was gross miscarriage of justice. The two situations came to be elaborated in subsequent judgments of the Supreme Court.
12. In K. Chinnaswamy Reddy v. State of Andhra Pradesh and another reported as : [1963]3SCR412 , the Supreme Court said:
'7. It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some 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. Sub-section (4) of S. 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on 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 conviction. This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be: 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 which the prosecution wished to produce, or where the appeal court has wrongly held evidence which was admitted by the 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 is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal; and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of S. 439(4). We have thereforee to see whether the order of the High Court setting aside the order of acquittal in this case can be upheld on these principles.'
13. This judgment culls out five situations where a re-trial can be ordered: (1) where the trial court has no jurisdiction to try the case but has still acquitted the accused, (2) where the trial court has wrongly shut out evidence which the prosecution wished to produce, (3) where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, (4) where material evidence has been overlooked either by the trial court or by the appeal court, (5) where the acquittal is based on a compounding of the offence which is invalid under law. The list, however, is not exhaustive. In Ram Briksh Singh and Ors. v. Ambika Yadav and Anr.; 2004 (1) JCC 665, the Supreme Court upheld the order of the High Court in a revision directing reappreciation of evidence when two important pieces of evidence pointing to the guilt of the accused had been left out of consideration. These and other cases of similar nature can be held to be cases of exceptional nature where the High Court can justifiably interfere with an order of acquittal. Subsequent judgments of the Supreme Court also show concern for caution in exercise of power of revision in such circumstances.
14. The question has been gone into in detail in the case of Mahendra Pratap Singh v. Sarju Singh and Anr. reported as : 1968CriLJ665 wherein the impact of ordering re-trial has been examined. The Supreme Court advised caution because an order of re-trial is heavily loaded against the accused for such an order is pregnant with an advice to proceed towards conviction. Para 8 of the judgment can be quoted here to bring out the advice of the Supreme Court:
'8. The practice on the subject has been stated by this Court on more than one occasion. In D. Stephens v. Nosibolla, : 1951CriLJ510 , only two grounds are mentioned by this Court as entitling the High Court to set aside an acquittal in a revision and to order a retrial. They are that there must exist a manifest illegality in the judgment of the Court of Session ordering the acquittal or there must be a gross miscarriage of justice. In explaining theses two propositions, this Court further states that the High Court is not entitled to interfere even if a wrong view of law is taken by the Court of Session or if even there is misappreciation of evidence. Again, in Logendranath Jha v. Polailal Biswas, : [1951]2SCR676 , this Court points out that the High Court is entitled in revision to set aside an acquittal if there is an error on a point of law or no appraisal of the evidence at all. This Court observes that it is not sufficient to say that the judgment under revision is 'perverse' or 'lacking in true correct perspective'. It is pointed out further that by ordering a retrial, the dice is loaded against the accused, because however much the High Court may caution the Subordinate Court, it is always difficult to re-weigh the evidence ignoring the opinion of the High Court. Again in K.Chinnaswamy Reddy v. State of Andhra Pradesh, : [1963]3SCR412 , it is pointed out that an interference in revision with an order of acquittal can only take place if there is a glaring defect of procedure such as that the Court had no jurisdiction to try the case or the Court had shut out some material evidence which was admissible or attempted to take into account evidence which was not admissible or had over-looked some evidence. Although the list given by this Court is not exhaustive of all the circumstances in which the High Court may interfere with an acquittal in revision it is obvious that the defect in the judgment under revision must be analogous to those actually indicated by this Court. As stated not one of these points which have been laid down by this Court was covered in the present case. In fact on reading the judgment of the High Court it is apparent to us that the learned Judge has re-weighed the evidence from his own point of view and reached inferences contrary to those of the Sessions Judge on almost every point. This we do not conceive to be his duty in dealing in revision with an acquittal when Government has not chosen to file an appeal against it. In other words, the learned Judge in the High Court has not attended to the rules laid down by this Court and has acted in breach of them.'
15. In the case of Zahira Habibulla Sheikh v. State of Gujarat reported as : 2004CriLJ2050 (Best Bakery case) re-trial was ordered in an extreme situation where Supreme Court discarded first trial as mock trial. The Supreme Court was quick to point out in the case of Satyajit Banerjee and Ors. v. State of West Bengal and Ors. reported as : 2005CriLJ648 that the judgment in the case of Best Bakery cannot be used in every case where the prosecution had failed to produce the relevant witnesses which led to an acquittal.
16. Till date the trend of the Supreme Court judgments takes the same cautious and conservative approach on the subject. Whenever the Supreme Court has dealt with the question, it has warned against the possibility of falling into an error of reappreciating the evidence as if in appeal in the eagerness of correcting an error which may not have actually caused any gross miscarriage of justice. In the case of Bindeshwari Prasad Singh (Supra) the Supreme Court ruled that where the state appeal had been dismissed, the revision by the private complainant should not be allowed.
17. The scope of the revisional jurisdiction is thus categorically and unambiguously settled as described above. The arguments on merit of the revision petition can now be heard in this perspective.
18. Revision stands admitted. Be listed in due course as per roster.