MARY PAPPA JEBAMANIversusGANESAN & ORS.

                       [2013] 11 S.C.R. 1042


A                    MARY PAPPA JEBAMANI
                                  v.
                        GANESAN & ORS.
              (Criminal Appeal Nos.2061-62 of 2013)
                       DECEMBER 09, 2013
B
         [G.S. SINGHVI AND GYAN SUDHA MISRA, JJ.]

        Penal Code, 1860 - ss. 294(b) and 323 - Prosecution
   under - Summary trial - Acquittal by trial court - Conviction
C by appellate court - High Court in exercise of its revisional
  jurisdiction set aside the order of conviction and revived the
   acquittal order - Held: Since the High Court in exercise of its
  revisional jurisdiction, set aside the order of first appellate
  court without assigning any reason, matter remanded to High
o Court for consideration afresh.
         Cod~ of Criminal Procedure, 1973 - s. 311 - Retrial -
    Held: Court can direct retrial, where prosecution lacks in
    bringing hecessary evidence - Facts of the present case do
    not justify; parameters for retrial.
E
         A summary trial was initiated by the Magistrate on the
   complaint of the appellant (PW1) u/s. 294(b) and 323 IPC.
   PWs 2 and 3 i.e. the other two eye-witnesses turned
   hostile. The trial court giving benefit of doubt to the
F accused:, acquitted them. Appellant-complainant
   approa9'ed first appellate court challenging the order of
   trial c,0urt and also prayed for retrial of the accused. The
   first appellate court reversed the acquittal order of the trial
   court and convicted the accused. High Court in revision,
G revived the order of acquittal, but dismissed the
   application seeking retrial of the accused, as not
 · maintainable. Hence the present appeals challenging the
   order of High Court acquitting the accused and the order
   refusing retrial of the accused.
H                               1042
   MARY PAPPA JEBAMANI v. GANESAN & ORS.               1043


    Dismissing the appeal filed against refusal of retrial     A
and allowing the appeal questioning acquittal of the
accused and remitting the same to High Court, the Court
     HELD: 1. Where prosecution lacks in bringing
necessary evidence, the trial court ought to invoke its 8
powers under Section 311 Cr.P.C. and can direct for
retrial. In the present case, the appellant although has
alleged that the order for retrial should have been
passed, nothing specific has been pointed out why the
matter should be sent for retrial specially when the two C
of the important witnesses had failed to support the
prosecution/ complainant version. Apart from this, the
complainant herself had failed to disclose as to what
exactly was the genesis of the occurrence as also the
contents of the abuse which could persuade this court
that a de novo trial of the accused was essential. Thus D
the appeal seeking retrial of the complaint case is not fit
to be entertained as it is not possible to take a view that
the investigation was shoddy or suffered from grave
lacunae which would justify the parameters for retrial at.
the instance of the complainant for the mere asking as it E
does not meet the legal requirements justifying a retrial.
[Paras 10, 11 and 12) [1049-C-G]
     Satyajit Banerjee and Ors. vs. State of WB. and Ors.
(2005) 1 sec 115: 2004 (6) Suppl. SCR 294; Zahira              F
Habibulla H. Sheikh and Anr. vs. State of Gujarat and Ors.
(2004) 4 SCC 158: 2004 (3) SCR 1050; Ram Bihari Yadav
vs. State of Bihar (1998) 4 SCC 517: 1998 (2) SCR 1097 -
relied on.

  . 2. Since the High Court has failed to record any           G
reason setting aside the order of the first appellate court,
when it was exercising merely revisional jurisdiction, it is
just and appropriate to remand the matter to the High
Court to reconsider and assign reasons for setting aside
the order of conviction and recording an order of              H
    1044    SUPREME COURT REPORTS               [2013] 11 S.C.R.


A acquittal of the respondents, without specifying and
  ignoring the medical evidence although it was
  considering the matter only in exercise of its revisional
  jurisdiction which has limited ambit and scope. [Para 13)
  [1050-E-F]
B
                         Case Law Reference:
        2004 (6) Suppl. SCR 294 relied on               Para 9
        2004 (3) SCR 1050           relied on           Para 9
c       1998 (2) SCR 1097           relied on           Para 10
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 2061-2062 of 2013.

       From the Judgment & Order dated 25.02.201 Oof the High
D Court of Madras in CRLRC No. 620 2008 and Order dated
  07.01.2011 in MP SR No. 15619 of 2010 in CRLRC No. 620
  of 2008.
        Mary Pappa Jebamani appellant-in-person.
E       P.V. Yogeswaran, M.A. Chinnasamy, S. Muthu Krishnan,
    K. Krishna Kumar for the Respondents.

        The Judgment of the Court was delivered by

          GYAN SUDHA MISRA, J.1. Leave as prayed for was
F   granted and hence the counsel for the contesting parties were
    finally heard.

       2. The complainanUappellant (Mary Pappa Jebamani)
  herein has filed this appeal by way of special leave bearing SLP
G (Crl.) No.4149/11) against the judgment and order dated
  25.2.2010 passed in Crl. R.C. (MD) No.620/2008 of Madurai
  Bench of the Madras High Court by which the learned single
  Judge while exercising his revisional jurisdiction was pleased
  to set aside the judgment and order dated 26.6.2008 passed
H by the Principal Sessions Court, Virudhunagar District at.
    MARY PAPPA JEBAMANI v. GANESAN & ORS.                    1045
            [GYAN SUDHA MISRA, J.]

. Srivilliputhur being the first appellate court who had been         A
  pleased to set aside the order of acquittal passed by the trial
  court against the accused/respondents herein for the offences
  punishable under Sections 294(b) and 323 of the Indian Penal
  Code (for short 'IPC'). Thereafter, the appellants herein also
  filed an application bearing MP (MD) SR No. 15619/2010 in           B
  the aforesaid criminal revision for allowing the application by
  ordering retrial of the accused respondents which petition was
  dismissed as not maintainable vide order dated 7.1.2011
  against which the complainant/appellant filed the analogous
  petition for Special Leave to Appeal (Crl.) No. 4150/2011. It is    C
  thus clear that the complainant has filed one special leave
  petition against the order by which the acquittal of the
  respondents/accused persons has been restored by the High
  Court by allowing their criminal revision and has dismissed the
  application of the complainant/appellant by which re-trial of the   D
  accused respondents had been sought.
      3. In order to examine the correctness of the impugned
 orders of the High Court, it appears essential to relate the facts
 of the case giving rise to these two appeals which disclose that
 a criminal complaint bearing crime No .. 152/2005 was E
 registered by the Sub Inspector of Police wherein it was stated
 that at about 7.30 p.m. on 24.6.2005, the appellant/complainant
 and her father while walking down the street to their residence
 were way laid by the respondents who verbally abused them
 and beaten them with wooden logs. Hence a case was F
 registered for offences under Section 294(b) and 323 IPC. After
 investigation and submission of chargesheet, a summary trial
 bearing case No. 1/2007 was conducted by the Chief Judicial
 Magistrate, Virudhunagar District wherein the complainant/PW-
 1 and her father PW-4 deposed not only against the accused G
 respondents herein but also against three other female
 members of the accused party. However, PW-2 and PW-3 who
 were cited as eye-witnesses turned hostile and the deposition
 of PW-1, PW-4 and PW-9 who is the daughter of PW-1
 complainant were not relied upon as the trial court being the · H
    1046     SUPREME COURT REPORTS                 [2013] 11 S.C.R.


A Chief Judicial Magistrate, Virudhunagar District held that the
  complaint did not disclose the nature of abusive language used
  by the accused as also the fact that the eye-witnesses had
  turned hostile. The trial court, therefore, vide its order dated
  20.4.2007 was pleased to give benefit of doubt to the accused
B persons and they were held not guilty for offences under
  Sections 294(b) and 323 IPC.
        4. The appellant/complainant felt seriously aggrieved of the
  acquittal of the accused respondents and hence filed Crl.
  R.P.No.25/2008 before the Principal Sessions Court,
C Srivilliputhur, District Virudhunagar against the trial court/Chief
  Judicial Magistrate's Order dated 20.4.2007 and also prayed
  for retrial of the accused respondents. The Principal Sessions
  Court, Virudhunagar vide order dated 26.6.2008 allowed the
  revision filed by the complainant/appellant and set aside the
D order of acquittal dated 20.4.2007 of the accused respondents
  passed by the Chief Judicial Magistrate.
       5. Obviously, it was now the turn of the accused
  respondents to move the High Court against the order setting
E aside their acquittal and hence they filed criminal revision in the
  High Court which was allowed by the High Court vide the
  impugned order. The complainant/appellant, therefore, has
  moved this Court by way of this special leave petition
  challenging the order of acquittal and further filed a Crl. Misc.
F Petition bearing SR No. 15619/2010 praying for retrial of the
  accused respondents which was dismissed as not
  maintainable as already referred to hereinbefore. The
  analogous special leave petition is directed against this order.
       6. The complainant/appellant who appeared in person has
G challenged the judgment and order of the High Court and
  submitted that the order of the High Court acquitting the
  accused respondents is fit to be to quashed and set aside as
  the clinching evidence on record adduced by the complainant
  and their witnesses were illegally ignored by the trial court as
H also the High Court specially the medical evidence indicating
   MARY PAPPA JEBAMANI v. GANESAN & ORS.                    1047
           [GYAN SUDHA MISRA, J.]

that the appellant's father had taken treatment as an in-patient     A
in the Government Hospital Virudhunagar from 24.6.2005 to
1. 7. 2005 and had taken treatment as in-patient in the
Government Hospital, Madurai, from 2.7.2005 to 16.7.2005
which was for 23 days continuously as a consequence of the
injury sustained in the incident which has been totally ignored      B
by the trial court while recording an order of acquittal of the
accused respondents. The appellant-in-person relying upon
Section 323 of the IPC has further urged that any hurt which
endangers life or which can put the sufferer in severe bodily
pain for 20 days or render him unable to follow his ordinary daily   C
pursuit, could not have been taken lightly by the trial court so
as to acquit the accused respondents even for the offence
under Section 323 IPC. The appellant has further relied upon
other discrepancies in appreciation of the evidence of the
prosecution/complainant while acquitting the accused                 D
respondents.
     7. In addition to the above, the appellant has also
contended that the trial court as also the High Court failed to
consider that fair trial had not been conducted by the trial court
as all the witnesses could not depose freely and state what          E
exactly had happened. It has been contended that the accused
respondents are rough and rowdy persons of disrepute and this
scared the complainant as also the witnesses so much so that
no one dares to complain against them. It was still further urged
that one Rajakani who is the wife of the first accused respondent    F
Ganesan has illicit relation with one BT Selvam who is the
appellant's divorced husband. The trial court also overlooked
the incidents caused by the accused respondents against
whom several cases are pending in various courts.
                                                                     G
    8. The appellant has further contended that the offence
committed by the accused respondents was a pre-planned
crime and all the accused persons shared common intention
and common object to assault and commit other offences
against the complainant. The trial court, therefore, committed       H
                                                                         l   ~
    1048     SUPREME COURT REPORTS                     [2013] 11 S.C.R.


A error in acquitting the accused respondents which had been set
  aside by the first appellate court/the Court of Sessions which
  in turn set aside the acquittal of the respondents but the High
  Court wrongly interfered with the same and set it aside. The
  appellant has further submitted that the investigation conducted
B in the matter'was also full of legal and procedural infirmities and
  hence it was a fit case for sending the matter for retrial.
          9. Learned counsel, representing the respondents' case,
    however, has supported the impugned judgment and order of
    the High Court and the trial court and first of all submitted that
C   the order seeking retrial of the accused respondents is wholly
    unwarranted as the plea for retrial cannot be ordered on a flimsy.
    ground at the instance of the prosecution. To reinforce their
    submission, reliance has been placed on the ratio of the
    judgment of this Court delivered in the matter of Satyajit
D   Banerjee & Ors. Vs. State of W.B. & Ors., (2005) 1 SCC 115,
    wherein this Court has held that direction for retrial should not
    be made in all or every case where acquittal of accused is for
    want of adequate or reliable evidence. It is only when an extra-
    ordinary situation in regard to the first trial is found so as to treat
E   it a farce or a 'mock trial', which would justify directions for
    retrial. It was further held therein that the trial Judge has to
    decide the case on the basis of available evidence recorded
    at the initial stage of the trial and the additional evidence
    recorded on retrial in the event a retrial had been permitted.
F   This Court has laid down the law on this in the Best Bakery
    case (2004) 4   sec   158, holding therein that the order for retrial
    cannot be applied to all cases as that would be against the
    established principle of criminal jurisprudence. In the Best
    Bakery Case, the first trial was found to be a farce and was
G   described as a 'mock trial'. Therefore, the direction for retrial
    was, in fact, for a real trial and such an extra-ordinary situation
    alone could justify the directions for retrial of a case as made
    by the Supreme Court in Best Bakery Case.
         1O. In yet another case of Ram Bihari Yadav vs. State of
H
   MARY PAPPA JEBAMANI v. GANESAN & ORS.                      1049
           [GYAN SUDHA MISRA, J.J

Bihar, (1998) 4 SCC 517, this Court held that the High Court           A
ought not to have directed the trial court to hold the de novo
trial and take a decision on the basis of the so-called
'suggested formula'. But the Supreme Court in this matter had
refused to set aside the order of retrial since retrial as directed
by the High Court had already commenced a.nd further                   B
evidence had already been recorded in view of which the
Supreme Court declined to set aside retrial and upheld the
judgment of the High Court permitting retrial. Thus, it cannot be
overlooked that where prosecution lacks in bringing necessary
evidence, the trial court ought to invoke its powers under             C
Section 311 of the Criminal Procedure Code and can direct
for retrial.
     11. In the light of the aforesaid legal position when the facts
of the instant matter are examined, it emerges that the appellant
although has alleged that the order for retrial should have been       D
passed by the trial court and the High Court, -nothing specific
has been pointed out why the matter should be sent for retrial
specially when the two of the important witnesses had failed to
support the prosecution/complainant version. Apart from this,
the complainant herself had failed to disclose as to what exactly      E
was the genesis of the occurrence as also the contents of the
abuse which could persuade this court that a de novo trial of
the accused was essential.
       12. Having thus considered and analyzed the facts and the       F
evidence that were brought to the notice of this Court, we are
of the view that SLP (Crl.) No.4150/2011 seeking retrial of the
complaint case bearing Summary Trial case No. 1/2007 is not
fit to be entertained as it is not possible to take a view that the
investigation was shoddy or suffered from grave lacunae which          G
would justify the parameters for retrial at the instance of the
complainant for the mere asking as it does not meet the legal
requirements justifying a retrial. However, it so far as SLP (Crl.)
No. 4149/2011 is concerned, it is clearly reflected from the
impugned order of the High Court allowing the revision petition        H
    1050     SUPREME COURT REPORTS                 [2013) 11 S.C.R.


A at the instance of the accused respondents that it has failed to
  record any reason whatsoever while exercising revisional
  jurisdiction for setting aside the order of conviction passed by
  the Sessions Court which had set aside the order of acquittal
  of the respondents without examining any evidence more
B particularly the medical evidence led by the complainant which
  disclosed that the complainant's father had sustained injuries
  and was treated at a Government Hospital for several days.
  Hence, even though we endorse the view of the High Court to
  the effect that the instant matter might not have been a fit case
c for referring it for retrial, the High Court certainly had the legal
  obligation to assign reasons while allowing the revision of the
  accused respondents stating why it has set aside the judgment
  and order of the First Appellate Court/Sessions Court while
  exercising revisional jurisdiction specially when the Sessions
D Court found sufficient evidence on record to set aside the
  acquittal of the respondents and upheld their conviction under
  Section 294 (b) and 323 IPC.
        13. Since the High Court has failed to record any reason
  setting aside the order of the First Appellate Court, when it was
E exercising merely revisional jurisdiction, we deem it just and
  appropriate to remand the matter arising out of Criminal
  Revision No. 620/2008 to the High Court to reconsider and
  assign reasons for setting aside the order of conviction and
  recording an order of acquittal of the respondents passed by
F the First Appellate Court convicting the respondents without
  specifying and ignoring the medical evidence although it was
  considering the matter only in exercise of its revisional
  jurisdiction which has limited ambit and scope. In view of the
  above discussion, the appeal arising out of SLP (Crl.) 4149/
G 2011 shall be treated as allowed in view of the order of remand
  of the matter to the High Court for fresh consideration. As
  already stated, appeal arising out of SLP (Crl.) No. 4150/2011
  stands dismissed.
    K.K.T.                                   Appeal disposed of &
H                                      remitted back to High Court.