JATTU RAM Vs. BAIWANT SINGH
LAWS(J&K)-1993-9-4
HIGH COURT OF JAMMU AND KASHMIR
Decided on September 22,1993

JATTU RAM Appellant
VERSUS
BAIWANT SINGH Respondents


Referred Judgements :-

MST. ASHA V. ABDUL RAHIM [REFERRED TO]
THAKUR RAM VS. STATE OF BIHAR [REFERRED TO]
PRATAP VS. STATE OF UTTAR PRADESH [REFERRED TO]
UNION OF INDIA VS. PRAFULLA KUMAR SAMAL [REFERRED TO]


JUDGEMENT

R.P.Sethi, J. - (1.)Respondents Kulwant Singh and Pritam Singh were alleged to have committed the offence of murder punishable u/ss. 302/109 of R.P.C. and upon registration of F.I.R No. 92 of 1992 Police Station Samha, were arrested and a challan produced against them in the Court of learned Sessions Judge, Jammu, who, vide his order impugned in the petition did not frame charge against the accused u/s. 304, R.P.C. and instead charged them for the commission of offence u/s. 304-11 read with Section 109 of the R.P.C. Brother of the deceased has filed this revision petition submitting that the discharge of the accused u/ss. 302, R.P.C. was illegal and against the provisions of law, requiring the impugned order to be set aside. Heard the learned counsel for the parties and perused the record.
(2.)The counsel appearing for the accused respondents have raised a preliminary objection regarding the maintainability of the revision petition at the instance of the petitioner. It is submitted that as the state has chosen not to file a revision petition, no private party could be permitted to file the revision petition against the order of discharge in view of the judgment of the Supreme Court reported in A.I.R. 1966 S.C. 911. The Supreme Court in Thakur Ram v. State of Bihar, had held that in a case which has proceeded on a police report, a private party has no locus standi and that Criminal law cannot be permitted to be used as an instrument of wrecking private vengeance by an aggrieved party against the person, who, according to that party, had caused injury to it. It was further held that barring a few exceptions, in criminal matters the party who is treated as an aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all the steps necessary for bringing the person who has acted against the social interests of the community to book. The Supreme Court did not completely exclude the private party from filing the revision petitions and took note of the exceptional cases.
(3.)In a later judgment, the Supreme Court in Pratap v. State of UP. & Ors. , held by majority that: Under Section 439 of the Cr. P.C. the High Court has got ample powers and as a notice has also been issued to the appellant to show cause why his sentence should not be enhanced, there is no illegality in the sentence of death imposed on the appellant. The power under Section 439, Criminal Procedure Code is one which the High Court can exercise suo motu and all that a person filing a revision petition under that section does is to draw the Courts attention to an illegal, improper or incorrect finding, sentence or order of the Subordinate Court. The fact that in this case the brother of the deceased filed revision petition and the Government did not do so does not affect the powers of the High Court under that Section. Dua, J. delivered a dissenting judgment, but on the point of the locus to file the revision petition he also held that: The power of revision in criminal cases vesting in the High Court, though wide and also exercisable suo motu is a power which, generally speaking, is narrower and more limited than its appellate power, though in certain respects it has a somewhat wide scope.T It was further held that: Broadly stated, the object of conferring revisional power on the High Court under Section 435 and S.439, Cr. P.C. is to clothe the highest court in a State with a jurisdiction of general supervision and superintendence in order to correct grave failure or miscarriage of justice arising from erroneous or defective orders. The error or defect may arise from mis-conception of law, irregularity of procedure, misreading of evidence, misapprehension or misconception about law or facts, mere perversity or even undue hardship or leniency. The real core of this power is that its exercise is justified only to set right grave failure of justice and not merely to rectify every error however inconsequential. Merely because the lower court has taken a wrong view of law or misapprehended the evidence on the record cannot by itself justify interference on revision unless it has also resulted in grave injustice. It is no doubt not possible and is also not practicable to lay down any rigid test of uniform application and the matter has to be left to the sound judicial discretion of the High Court in each case to determine if it should exercise its extraordinary power of revision to set right injustice. Administration of criminal justice is as a matter of general policy a function which the State performs and private parties who may be inspited by a feeling or spirit or vengeance or vindictiveness are ordinarily not encouraged to prosecute criminal proceedings except when for special reasons the cause of justice so demands. The High Court is, therefore, ordinarily disinclined to interfere with the orders of subordinate criminal courts in which the State is the prosecutor at the instance of private parties except where for some exceptional reason it considers proper to do so in the larger interests of justice.


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