Lal Kishore Jha vs State Of Jharkhand & Anr

2. Heard Mr. Nagendra Rai, learned senior advocate, appearing for the

petitioner.

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.

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 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 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 has done is to set aside the order passed

by the appellate court and restore the order of conviction and sentence

passed by the 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 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 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

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. 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 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 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.

11. We find no merit in the special leave petition. It is dismissed.