Arunachalam v P. S. R. Sadhanantham
Supreme Court of India

6 March 1979
Criminal Appeal No. 170 of 1973.
The Judgment was delivered by : O. Chinnappa Reddy, J.
1. P. S. R. Sadhanantham and four others were tried by the learned Sessions Judge, Tirunelveli, on various counts. Sadhanantham (A1) was convicted under Sections 148 and 302 Indian Penal Code while the four others were convicted under Sections 147, 323 and 149 read with 323. The first accused was sentenced to imprisonment for life on the charge of murder and to rigorous imprisonment for a period of two years on the charge under Section 148. The others were sentenced to suffer imprisonment for a period of one year on each of the counts on which they were convicted, the sentences to run concurrently. All the five accused preferred an appeal to the High Court of Madras. The High Court allowed the appeal and acquitted all the accused of all the charges. Arunachalam the brother of the deceased has preferred this appeal against the judgment of the Madras High Court after obtaining special leave from this Court on 26-7-1973. The special leave was granted against the first accused Sadhanantham only.
2. The case of the prosecution, briefly, was that there was enmity between the deceased Soundarapandian and his brother Arunachalam (P.W. 2) and Natesan (P.W. 3) on one side and Rajapalavesmuthu Nadar, his sons A1 and A2 and his nephews A4 and A5 on the other. There were the usual disputes arising out of elections to the Gram Panhayat and to the local cooperative stores. In connection with the village Amman festival, P.W. 3 was arranging to have a dance performance on the night of 20th August, 1970, in the Gandhi Maidan. About a week earlier, Sadhanantham, the first accused demanded that the dance should be performed under his presidentship but P.W.3 did not agree. On the night of 20th August, 1970, P.W.3 alongwith one Gopalakrishnan (P.W. 6) was decorating the stage. Tube lights were burning and several persons had gathered in front of the stage. At about 8.45 p.m. accused 1 to 5 came there and got up on the stage. At questioned P.W.3 how he dared to conduct the show without his presiding over it. P.W.3 replied that the dance performance would be conducted without the presidentship of A1. A1 then slapped P.W.3 on the cheek. A2 to A4 also started beating P.W.3 with their hands. P.W.6 and several others who were there ran away apparently not wanting to get involved in the fracas. P.W.3 jumped down from the stage and attempted to run away when A3 caught him and began to throttle his neck. A1, A2 and A4 joined in beating him with their hands. The deceased P.W. 1, P.W. 2 and P.W. 5 came running towards P.W.3. The deceased asked the first accused why they were beating his younger brother. A.3 and A.5 who were holding P.W.3 by the neck let him free. A.1 asked the deceased who he was to question him and saying so he took out a knife from his waist and stabbed the deceased on the left flank. The deceased fell down shouting "stabbed, stabbed".
3. Accused 1 to 5 then ran towards the north. P.W.3 chased them over a distance of about one and half furlongs. They ran inside the forest. P.W.3 stopped chasing them further. In the meanwhile the injured Soundarapandian was taken by P.Ws. 1, 2 and 5 to the Police Station and then to the hospital at Kayalpattinam. At the Police Station, the writer P.W.14 recorded a statement Exhibit P-1 from Soundarapandian at 9.15 p.m. Soundarapandian when asked to sign the statement insisted on signing the statement after dipping the pen in the blood that was coming out of the wound. He was taken to the hospital in a jeep requisitioned by the police. P.W.4 the Medical Officer in charge of the Hospital examined the injured and found that the injury was of a serious nature. He sent the injured to the Government Headquarters Hospital at Tuticorin for further treatment. The District Medical Officer, P.W. 8 examined him and finding his condition very serious, sent a requisition Exhibit P-5 to the Sub Magistrate, Tuticorin to record the dying declaration of Soundarapandian. Exhibit P-6, the dying declaration was recorded by the Magistrate P.W.7 at 1.30 a.m. At 7.45 a.m. next morning, P.W.8 performed an operation but Soundarapandian could not be saved. He died at about 1.30 p.m. The autopsy was conducted by P.W.9 who, on dissection found that the diaphragm and the upper lobe of the left lung had been pierced. The police after completing the investigation laid a charge-sheet against Sadhanantham, Nithiyanantham, Thamilan, Kumaresan and Karthikeyan.
4. In support of its case, the prosecution examined P. Ws. 1, 2, 3 and 5 as direct witneses to the occurrence and relied upon Exhibits P 1 and P6, the two dying declarations made by Soundarapandian. The prosecution also examined P. W. 6 to speak to the earlier part of the incident. All the accused denied the offence and stated that they were falsely implicated on account of enmity. In the cross-examination of the witnesses it was suggested that one Ramalingam was also injured at the same time and place. It was suggested that P. Ws. 2 and 3 had prevailed upon the deceased to name A-1 as the person who stabbed him. The learned Sessions Judge accepted the dying declarations as true. He also accepted the evidence of the eye witnesses. He convicted and sentenced the five accused as mentioned earlier. The High Court acquitted the accused primarily on the ground that neither the direct witnesses nor the dying declarations explained the serious injury caused to Ramalingam, who it appeared from the evidence of the Doctor P.W. 4, had received a stab injury 5 cms x 2 cms near the left side of the abdomen on the back. The High Court thought that though Exhibit P-1 was purported to have been recorded earlier than Exhibit P-6 in point of time, it was in fact recorded later. The High Court took the view that the first accused must have been implicated by the deceased as the assailant in Exhibit P-6 at the instance of P.W.3 who met him in the hospital at about 1 a.m. The evidence of the direct witnesses P. W.s. 1, 2, 3, and 5 was rejected on the ground that they were interested and had not explained how Ramalingam sustained the injury found on him. The conduct of P.W. 3 was also severely commented upon. The High Court acquitted all the five accused. Before proceeding to discuss the evidence and the findings of the High Court we remind ourselves of the confines of our jurisdiction to deal with appeals by special leave against judgments of acquittal by the High Court.
5. Article 136 of the Constitution of India invests the Supreme Court with a plentitude of plenary, appellate power over all Courts and Tribunals in India. The power is plenary in the sense that there are no words in Article 136 itself qualifying that power. But, the very nature of the power has led the Court for set limits to itself within which to exercise such power. It is now the well established practice of this Court to permit the invocation of the power under Article 136 only in very exceptional circumstances, as when a question of law of general public importance arises or a decision shocks the conscience of the Court. But, within the restrictions imposed by itself, this Court has the undoubted power to interfere even with findings of fact making no distinction between judgment of acquittal and conviction, if the High Court, in arriving at those findings, has acted "perversely or otherwise improperly". (See State of Madras v. Vaidyanath Iyer, and Himachal Pradesh Administration v. Om Prakash 1971 Indlaw SC 550.  In dealing with an appeal against acquittal, the Court will, naturally, keep in mind the presumption of innocence in favour of the accused, reinforced, as may be, by the judgment of acquittal. But, also, the Court will not abjure its duty to prevent violent miscarriage of justice by hesitating to interfere where interference is imperative. Where the acquittal is based on irrelevant ground, or where the High Court allows itself to be deflected by red herrings drawn across the track, or where the evidence accepted by the trial court is rejected by the High Court after a perfunctory consideration, or where the baneful approach of the High Court has resulted in vital and crucial evidence being ignored, or for any such adequate reason, this Court may fed obliged to step in to secure the interests of justice, to appease the judicial conscience, as it were.
6. A doubt has been raised about the competence of a private party, as distinguished from the State, to invoke the jurisdiction of this Court under Article 136 of the Constitutionagainst a judgment of acquital by the High Court. We do not see any substance in the doubt. Appellate power vested in the Supreme Court under Article 136 of the Constitution is not to be confused with ordinary appellate power exercised by Appellate Courts and Appellate Tribunals under specific statutes. As we said earlier, it is a plenery power, 'exercisable outside the purview of ordinary law' to meet the pressing demands of justice (vide Durga Shankar Mehta v. Thakur Raghuraj Singh & Ors 1954 Indlaw SC 134. Article 136 of the Constitution neither confers on anyone the right to invoke the jurisdiction of the Supreme Court nor inhibits anyone from invoking the Court's jurisdiction. The power is vested in the Supreme Court but the right to invoke the Court's jurisdiction is vested in no one. The exercise of the power of the Supreme Court is not circumscribed by any limitation as to who may invoke it.
7. Where a judgment of acquittal by the High Court has led to a serious miscarriage of justice the Supreme Court cannot refrain from doing its duty and abstain from inerfering on the ground that a private party and not the State has invoked the Court's jurisdiction. We do not have the slightest doubt that we can entertain appeals against judgments of acquittal by the High Court at the instance of private parties also. The circumstance that the Criminal Procedure Code does not provide for an appeal to the High Court against an order of acquittal by a Subordinate Court, at the instance of a private party, has no relevance to the question of the power of this Court under Article 136. We may mention that recently in Mohan Lal v. Ajit Singh 1978 Indlaw SC 473, this Court interfered with a judgment of acquittal by the High Court at the instance of a private party. An apprehension was expressed that if appeals against judgments of acquittal at the instance of private parties are permitted there may be a flood of such appeals. We do not share the apprehension. Appeals under Article 136 of the Constitution are entertained by special leave granted by this Court. Whether it is the State or a private party that invokes the jurisdiction of this Court, special leave is not granted as a matter of course but only for good and sufficient reasons, as well established by the practice of this Court.
8. As earlier mentioned, the primary reason given by the High Court for rejecting the testimony of the direct witnesses and the dying declarations was the supposed failure of the prosecution to explain the serious injury found on the person of one Ramalingam alleged to have been injured at the same time and place as the deceased. We may at once say that nothing is known about this Ramalingam. He is not shown to be connected, even remotely, either with the prosecution party or with the faction of the accused. He was very surreptitiously and dexterously introduced into the case in the course of the cross-examination of the prosecution witness and thereafter made to loom large. He was, as we shall presently point out nothing more than a "red herring" across the track. We will refer to the whole of the evidence where Ramalingam was made to appear in the case to examine whether the High Court was right in rejecting the entire case of the prosecution on the ground that the injury on Ramalingam was not explained. P.W. 1 was put but one question whether he was aware that injuries were caused to one Ramalingam Nadar at the place of the occurrence on the night of occurrence. He stated that he was not aware of that fact. No further question was put to P. W. 1 pursuing the matter. Similarly P.W. 2 was also asked in cross-examination whether he was aware of the stabbing of one Ramalingam Nadar at the time of occurrence. He stated that he was not and that was the end of the matter and it was not pursued further. P. W. 3 was also asked the same question. He too denied knowledge of injuries sustained by Ramalingam Nadar on the night of occurrence. P.W. 5 was also asked a similar question and he too gave a similar answer. P.W. 4 the Medical officer, Kayalpattinam, deposed in his evidence that he examined one Ramalingam at about 11.30 p.m. on 20th August, 1970. and found an incised wound 5 cms x 2 cms x 2 cms near the left side of the abdomen on the back and one small irregular edged wound on the inner side of the first injury. The Doctor also stated that Ramalingam told him that he was assaulted by some unknown person when he was witnessing the dance show. P.W. 10 who had gone to witness the dance performance but who ran away when trouble started stated that when he was running away he saw one Ramalingam Nadar running along with him and that the said Ramalingam Nadar was keeping his hand near his waist and that the hand was blood stained. P.W. 15 the Head Constable attached to the Arumuganeri Police Station stated that 4 or 5 days after the occurrence he came to know that a case was registered in Arumuganeri Police Station on the strength of a complaint given by one Ramalingam. P.W. 167 the Investigating officer also stated that the First Information Report registered on the strength of Ramalingam's complaint had also been sent to the Magistrate and that a final report had also been sent. He denied the suggestion made to him that the First Information Report in respect of Ramalingam's complaint was suppressed as it was not in favour of the prosecution. These are all the appearances which Ramalingam made, on the stage of this case, in the mouth of the witnesses, though Ramalingam did himself not enter upon the scene. None of the accused made any reference to Ramalingam in his statement.
9. It would be noticed that it was not suggested to any of the prosecution witnesses that Ramalingam was connected with either the prosecution party or the party of the accused. It was not suggested that the injury to Ramalingam was caused by a member of either group. It was not suggested that Ramalingam intervened in the fight and received an injury. In fact there was nothing to suggest that Ramalingam and the deceased received their respective injuries in the course of the same transaction. The only suggestion was that Ramalingam received an injury that night at the place of occurrence. It is in evidence that as soon as trouble started, the people who had gathered there started running helter skelter. While so running Ramalingam apparently received a stab injury accidentally or deliberately from someone. In fact according to the evidence of the Doctor, Ramalingam told him that he did not know who his assailant was. There was, therefore, absolutely nothing to connect the stabbing of Ramalingam with the stabbing of the deceased Soundarapandian. The evidence of P.W. 10 also was to the effect that Ramalingam himself was one of those who ran away from the scene alongwith him and that was before the deceased was stabbed. There was thus nothing to indicate that the deceased or any of the direct witnesses were aware or could possibly be aware of the injury caused to Ramalingam. In our opinion the High Court was entirely wrong and wholly unjustified in rejecting the testimony of the direct witnesses and the dying declarations on the irrelevant consideration that they did not explain the injury found on the person of Ramalingam.
10. In regard to the dying declarations the reason given by the High Court to conclude that Exhibit P. 1 must have been recorded later than Exhibit P-6 was that Exhibit P-1 contained several statements not to be found in Exhibit P-6. We are afraid that the High Court was merely indulging in speculation and approaching the question from the wrong end. Exhibit P-1 which was recorded by P.W. 14 was as follows :
"Arumuganeri is my native place. I am doing shop business. Record dance was arranged to take place in Gandhi Maidan at Arumuganeri. I went to see the record dance along with Arunachala Nadar my elder brother, Gunesekaran younger sister's husband, and Somasundaram son of Adinarayana Perumal. We were talking, standing in front of Ramaswami temple. Sadanandam, Nithianandam, sons of P. S. Raja Nadar, Tamilam alias Subramaniam, Kumarsan son of Thangapla Nadar, Karthikyan son of Raja Pandia Nadar were beating my younger brother Natesan, on the north of the dancing stage. Myself, and the persons with me ran to that place. I questioned as to why you beat my younger brother. Sadanandam son of P. S. Raja Nadar forcibly stabbed me with the greece knife in the hand, on my left flank, below the rib I cried to the effect "Ayyoh : stabbed." I covered the stab injury with my hand. My elder brother and Somasundaram, took me to Police station. There is prior enmity between myself and P. S. Raja Vagaria in connection with the elections. I read the statement. It has been recorded as narrated by me.
Sd/- Soundarapandian"
11. Exhbiit P-6 which was recorded by the Sub Magistrate, was as follows :
"There is one Gandhi Maidan in Arumganeri, Record dance was to be performed there. I went to see it. The dance was not begun. Myself, Arunachalam, my elder brother, Gunasekaran, my sister's husband were all talking. There was quarrel at the place of performance of the record dance. At that time, the record dance was not begun. Myself and others ran to the place where the quarrel took place. A boy called Sadanandem son of P. S. Raja Nadar stabbed me with a knife. I cried to effect "Ayyoh Stabbed, stabbed ?" The police station is very near. We all went there. My hand was stained with blood. There is no reason for stabbing me. L.I.T. of Thiru Soundrapandian".
12. It is true that Exhibit P-1 gives more details than Exhibit P-6. Exhibit P-1 mentions the names of A-2, A-3, A-4 and A-5 also in connection with the beating of P.W. 3. It also mentions that the deceased was stabbed on the left flank below the rib. It further mentions the prior enmity between the deceased and P. S. Raja Vageria. On the contrary Exhibit P-6 gives fewer details, and does not mention the names of the participants in the fight which preceded the stabbing of the deceased. The stabbing of the deceased by A-1 alone is particularly mentioned. What is important to be noted in Exhibit P-6 is that it refers to the circumstance that the deceased first went to the Police Station. That statement lends support to the prosecution case that the deceased and others went to the Police Station and a Statement was recorded at the Police Station from the deceased. What is more important is the circumstance that while Exhibit P-1 was recorded within a very short time after the occurrence, Exhibit P-6 was recorded a few hours after the occurence by which time the condition of the deceased had apparently deteriorated and he was not in a position to make as detailed a statement as P-1. The evidence of the District Medical Officer, P.W. 8, shows that when he saw him at 1 a.m. the condition of the deceased was very bad. P-6 was recorded, it may be noted at 1.25 a.m.
13. It would also be seen that the condition of Soundarapandian at that time was such that his thumb impression and not his signature could be taken on Ex.P.6. The reason for less particulars in P-6 was quite obvious but yet the High Court completely missed it because of its wrong approach. There was no reason whatsoever to doubt the genuineness of Exihibit P-1 or P-6. The High Court thought that P.W.3 might have met the deceased in the Tuticorin hospital at 1 a.m. and induced him to implicate the first accused. This was nothing but speculation. As we mentioned the condition of the deceased was very bad at 1 a.m. and it is too much to think that anybody would have been allowed to go near the deceased in the critical condition in which he was in the hospital and to tutor him to implicate someone falsely. The evidence of three of the eye witnesses namely P.Ws. 1, 2 and 5 was dealt with by the High Court in a most summary and perunctory way. It was said:
"The name of this witness (P.W.1) was not mentioned by the deceased in Exh.P-6. It has been elicited from this witness that there was bitter enmity between him and the family of the accused. This witness was appointed by the deceased as a clerk in Arumuganeri Cooperative Stores and in the Panchayat election, P.W.1 proposed the name of the person who stood against the father of Accused 1 and 2. He was a prosecution witness in a criminal case instituted against the father of Accused 1 and 2. This witness is not only interested in the deceased as he was employed under the deceased as a clerk but also inimically disposed towards the family of the accused. It will, therefore, be unsafe to rely upon his evidence. P.W.2 is the brother of the deceased and P.W.5 is the brother-in-law of the deceased. They are very much interested in the deceased and they were also inimically disposed towards the accused. They are not telling the truth. They have not explained as to how Ramalingam sustained the injury. They have fallen in line with the statements made in the dying declaration. We do not accept their evidence".
14. The reasons given were that the witnesses were interested and that they had not explained the injury found on the person of Ramalingam. In the case of P.W.1 it was also stated that his name was not mentioned in Exhibit P-6. We do not think that the criticism of the High Court bears any scrutiny. We have perused the evidence of P.Ws. 1, 2 and 5 and we are unable to discard their testimony for the sole reason that they are interested witnesses. With regard to P.W.3 however, there is scope for much criticism having regard to his conduct subsequent to the incident. According to his evidence after he chased the accused he stopped for about an hour near the forest and returned to the village thereafter. While he was on his was back he saw his uncle's jeep on the road and learnt from his uncle that Soundarapandian had been taken to the hospital at Tuticorin.
Therefore, he went to Tuticorin and saw his brother in the hospital at about 1 a.m. Thereafter he went to a hotel where he slept for the night. Next morning without going to the hospital to find out the condition of his brother he returned to the village and made himself available to the police for questioning at about 1 p.m. Though there cannot be any doubt that he witnessed the occurrence his subsequent conduct does not inspire such confidence as to place implicit reliance on his evidence. We, therefore, agree with the High Court that P.W.3 was not a reliable witness.
15. In our view the two dying declarations Exhibits P-1 and P-6 may be relied upon without any reservation and the evidence of P.Ws. 1, 2 and 5 may also be safely accepted. We have considered the reasons given by the High Court for acquitting the first accused and we find them wholly unsatisfactory. In the light of the principled set out by us earlier we think that the interests of justice demand that we should interfere with the order of acquittal in the present case.
Accordingly, we allow the appeal, set aside the judgment of the High Court and restore the judgment of conviction and sentence passed by the learned Sessions Judge of Tirunelveli against the respondent (first accused) on the charge under Section 302 Indian Penal Code.
Appeal allowed


P. S. R. Sadhanantham v Arunachalam and Another
Supreme Court of India

1 February 1980
W.P. No. 355 of 1979
The Judgment was delivered by : V. R. Krishnaiyer, J. and R. S. Pathak, J.
1. Is it constitutionally valid or desirable on principle to permit a private citizen, who has but loose nexus with the victim of a crime, to invoke the special power under Art. 136 of the Constitution for leave to appeal against an acquittal of the alleged criminal thereby putting in peril his life or liberty in the absence of any legislative provision arming such officious outsider with the right to appeal? This issue, profound on its face but unsound on reflection, falls for decision in this writ petition under Art. 32 of the Constitution. The facts, compressed into a single sentence, are that the petitioner was acquitted of a murder charge by the High Court in appeal but the brother of the deceased-not the State nor even the first informant-moved this Court under Art. 136, got leave and had his appeal heard which resulted in the petitioner (accused) being convicted and sentenced to the life term under s. 302 I.P.C.
2. The present contention urged to upset that conviction, is that the leave to appeal and the subsequent proceedings were unconstitutional as violative of Art. 21 the procedural magna carta protective of life and liberty-and, therefore, the sentence must fail. This plea, faintly presented before this Court when the appeal was heard, was briefly considered and rightly rejected. This second battle, doomed to fail like the first, demands of us a condensed ratiocination in negation of the contention hopefully urged by Sri Mridul, counsel for the petitioner.
3. Two inter-laced issues arise and they turn on (a) the content and character of Art. 136 vis-a-vis Art. 21, and (b) the locus standi of a Good Samaritan, if we may use that expression to refer to a public-spirited citizen seeking to trigger the legal process to see that justice is done to his neighbour. Article 21, in its sublime brevity, guardians human liberty by insisting on the prescription of procedure established by law, not fiat as sine qua non for deprivation of personal freedom. And those procedures so established must be fair, not fanciful, nor formal nor flimsy, as laid down in Maneka Gandhi's case. So, it is axiomatic that our constitutional jurisprudence mandates the State not to deprive a person of his personal liberty without adherence to fair procedure laid down by law.
4. The question is whether there is any procedure, fair or otherwise, which enables a kindly neighbour who is not a complainant or first informant, to appeal to the Supreme Court against an allegedly erroneous acquittal by the High Court. The corpus juris contains no black-letter law arming any such purely compassionate soul to approach this Court, argues Sri Mridul; and so, his client's liberty has been deprived by a proceeding initiated by someone without any procedure established by law. We see the dexterity in the advocacy but reject its efficacy.
5. Nor are we impressed with the submission that the brother of the deceased in the case, or any other high-minded citizen, is an officious meddler who has no business nor grievance when the commission of grievous crime is going unpunished. There is a spiritual sensitivity for our criminal justice system which approves of the view that a wrong done to anyone is a wrong done to oneself, although for pragmatic considerations the law leashes the right to initiate proceedings in some situations. Again, 'justice is functionally outraged not only when an innocent person is punished but also when a guilty criminal gets away with it stultifying the legal system. The deep concern of the law is to track down, try and punish the culprit, and if found not guilty, to acquit the accused.
6. It is imperative under Art. 21 that there should be some civilised procedure for holding a man guilty and depriving him of his liberty. Undoubtedly, this Court, if it grants leave under Art. 136 and eventually finds him guilty, deprives him of his liberty; and so the crucial question that falls for decision is as to whether there is any procedure as predicated by Art. 21 independent of or implicit in Art. 136. It is apparent that there is no statutory provision which creates a right of appeal in favour of a stranger enabling him to challenge an acquittal by the High Court.
7. The Criminal Procedure Code does not create such a right of appeal and, speaking generally, a right of appeal is the creature of statute. So it is submitted that before the court may grant special leave under Art. 136 there must be an antecedent right of appeal, absent which the question of leave by the court does not arise. The argument is ingenious but inference is fallacious. An insightful understanding of the sweep, scope and character of Art. 136 will easily dispel the dichotomy between an antecedent right of appeal and a subsequent grant of leave, which is the corner-stone of the contention of the petitioner.
8. The jural reach and plural range of the judicial process to remove injustice in a given society is a sure index of the versatile genius of law-in-action as a delivery system of social justice. By this standard, our constitutional order vests in the summit court a jurisdiction to do justice, at once omnipresent and omnipotent but controlled and guided by that refined yet flexible censor called judicial discretion. This nidus of power and process, which master-minds the broad observance throughout the Republic of justice according to law, is Art. Specificity being essential to legality, let us see if the broad spectrum spread-out of Art. 136 fills the bill from the point of view of "procedure established by law".
9. In express terms, Art. 136 does not confer a right of appeal on a party as such but it confers a wide discretionary power on the Supreme Court to interfere in suitable cases. The discretionary dimension is considerable but that relates to the power of the court. The question is whether it spells by implication, a fair procedure as contemplated by Art. 21. In our view, it does. Article 136 is a special jurisdiction. It is residuary power; it is extra ordinary in its amplitude, its limit, when it chases injustice, in the sky itself. This Court functionally fulfils itself by reaching out to injustice wherever it is and this power is largely derived in the common run of cases from Art. 136. Is it merely a power in the Court to be exercised in any manner it fancies? Is there no procedural limitation in the manner of exercise and the occasion for exercise ? Is there no duty to Act fairly while hearing a case under Art. 136, either in the matter of grant of leave or, after such grant, in the final disposal of the appeal ? We have hardly any doubt that there is a procedure necessarily implicit in the power vested in the summit court. It must be remembered that Art. 136 confers jurisdiction on the highest court. The founding fathers unarguably intended in the very terms of Art. 136 that it shall be exercised by the highest judges of the land with scrupulous adherence to judicial principles well-established by precedents in our jurisprudence. Judicial discretion is canalised authority not arbitrary eccentricity. Cardozo, with elegant accuracy, has observed : The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure.
10. He is not a knighterrant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to 'the primordial necessity of order in the social life. Wide enough in all conscience is the field of discretion that remains." It is manifest that Art. 136 is of composite structure, is power-cum-procedure-power in that it vests jurisdiction in the Supreme Court, and procedure in that it spells a mode of hearing. It obligates the exercise of judicial discretion and the mode of hearing so characteristic of the court process. In short, there is an in-built prescription of power and procedure in terms of Art. 136 which meets the demand of Art.21.
11. We may eye the issue slightly differently. If Art. 21 is telescoped into Art. 136, the conclusion follows that fair procedure is imprinted on the special leave that the court may grant or refuse. When a motion is made for leave to appeal against an acquittal, this Court appreciates the gravity of the peril to personal liberty involved in that proceeding. It is fair to assume that while considering the petition under Art. 136 the court will pay attention to the question of liberty, the person who seeks such leave from the court, his motive and his locus standi and the weighty factors which persuade the court to grant special leave.
12. When this conspectus of processual circumstances and criteria play upon the jurisdiction of the court under Art. 136, it is reasonable to conclude that the desideratum of fair procedure implied in Art. 21 is adequately answered. Once we hold that Art. 136 is a composite provision which vests a wide jurisdiction and, by the very fact of entrusting this unique jurisdiction in the Supreme Court, postulates, inarticulately though, the methodology of exercising that power, nothing more remains in the objection of the petitioner. It is open to the Court to grant special leave and the subsequent process of hearing are wellestablished. Thus, there is an integral provision of powercum-procedure which answers with the desideratum of Art. 21 justifying deprivation of life and liberty.
13. The wider the discretionary power the more sparing its exercise. Times out of number this Court has stressed that though parties promiscuously 'provoke' this jurisdiction, the Court parsimoniously invokes the power. Moreover, the Court may not, save in special situations, grant leave to one who is not eo nomine a party on the record. Thus, procedural limitations exist and are governed by well-worn rules of guidance. Sri Mridul urged that every inquisitive benefactor or offensive adventurer cannot 'rush in' and upset a verdict of acquittal by resort to Art. 136. This is really a matter for exercise of judicial discretion and the Court can be trusted to bear in mind time-honoured practices and the values of Art. 21.
14. But no dogmatic proscription of leave under Art. 136 to a non-party applicant can be laid down inflexibly. For access to justice is not a cloistered virtue. It is true that the strictest vigilance over abuse of the process of the court, especially at the expensively exalted level of the Supreme Court, should be maintained and ordinarily meddlesome bystanders should not be granted 'visa'. It is also true that in the criminal jurisdiction this strictness applies a fortiori since an adverse verdict from this Court may result in irretrievable injury to life or liberty.
15. Having said this, we must emphasise that we are living in times when many societal pollutants create new problems of unredressed grievance when the State becomes the sole repository for initiation of criminal action. Sometimes, pachydermic indifference of bureaucratic officials, at other times politicisation of higher functionaries may result in refusal to take a case to this Court under Art. 136 even though the justice of the lis may well justify it. While "the criminal law should not be used as a weapon in personal vendettas between private individuals", as Lord Shawcross once wrote, in the absence of an independent prosecution authority easily accessible to every citizen, a wider connotation of the expression 'standing' is necessary for Art. 136 to further its mission. There are jurisdictions in which private individuals-not the State alone-may institute criminal proceedings.
16. The Law Reform Commission (Australia) in its Discussion Paper No. 4 on "Access to Courts-I Standing: Public Interest Suits" wrote: The general rule, at the present time, is that anyone may commence proceedings and prosecute in the magistrate's court. The argument for retention of that right arises at either end of the spectrum-the great cases and the frequent petty cases. The great cases are those touching government itself-a Watergate or a Poulson. However independent they may legally be any public official, police or prosecuting authority, must be subject to some government supervision and be dependent on government funds; its officers will inevitably have personal links with government. They will be part of the "establishment". There may be cases where a decision not to prosecute a case having political ramifications will be seen, rightly or wrongly, as politically motivated. Accepting the possibility of occasional abuse the Commission sees merit in retaining some right of a citizen to ventilate such a matter in the courts.
17. Even the English System, as pointed by the Discussion paper, permits a private citizen to file an indictment. In our view, the narrow limits set, in vintage English law, into the concept of 'person aggrieved' and 'standing' needs liberalisation in our democratic situation. In Dabholkar's case this court imparted such a wider meaning. The American Supreme Court relaxed the restrictive attitude towards 'standing' in the famous case of Baker v. Carr. Lord Denning, in the notable case of the Attorney-General of the Gambia v. Pierra Sarr N' Jie, spoke thus: ....the words 'person aggrieved' are of wide import and should not be subjected to a restrictive interpretation.
18. They do not include, of course, a mere busybody who is interfering in things which do not concern him; Prof. S. A. de Smith takes the same view : All developed legal systems have had to face the problem of adjusting conflicts between two aspects of the public interest-the desirability of encouraging individual citizens to participate actively in the enforcement of the law, and the undesirability of encouraging the professional litigant and the meddlesome interloper to invoke the jurisdiction of the courts in matters that do not concern him.
19. Prof. H.W.R. Wade strikes a similar note : In other words, certiorari is not confined by a narrow conception of locus standi. It contains an element of the actio popularis. This is because it looks beyond the personal rights of the applicant; it is designed to keep the machinery of justice in proper working order by preventing inferior tribunals and public authorities from abusing their powers. In Dabholkar's case, one of us wrote in his separate opinion : The possible apprehension that widening legal standing with a public connotation may unloose a food of litigation which may overwhelm the judges is misplaced because public resort to court to suppress public mischief is a tribute to the justice system.
20. This view is echoed by the Australian Law Reforms Commission. The crucial significance of access jurisprudence has been best expressed by Cappelletti: The right of effective access to justice has emerged with the new social rights. Indeed, it is of paramount importance among these new rights since, clearly, the enjoyment of traditional as well as new social rights presupposes mechanisms for their effective protection. Such protection, moreover, is best assured by a workable remedy within the framework of the judicial system. Effective access to justice can thus be seen as the most basic requirement-the most basic 'human right'-of a system which purports to guarantee legal rights.
21. We are thus satisfied that the bogey of busybodies blackmailing adversaries through frivolous invocation of Art.136 is chimerical. Access to Justice to every bona fide seeker is a democratic dimension of remedial jurisprudence even as public interest litigation, class action. pro bono proceedings, are. We cannot dwell in the home of processual obsolescence when our Constitution highlights social justice as a goal. We hold that there is no merit in the contentions of the Writ petitioner and dismiss the petition.
PATHAK, J
22. The High Court of Madras in its appellate jurisdiction acquitted the petitioner, Sadhanantham, of charges under s. 302 and s. 148, I.P.C. Arunachalam, a brother of the deceased, petitioned to this Court u/art. 136 of the Constitution for special leave to appeal against the acquittal. The court granted special leave, and ultimately allowed the appeal, Arunachalam v. P.S.R. Sadhanantham, and setting aside the judgment of the High Court restored the conviction and sentence imposed by the trial court under s. 302, I.P.C. The petitioner has filed this writ petition contending that the judgment and order of this Court is a nullity and should be set aside. The principal contention is that Art. 136 did not empower this Court to grant special leave to Arunachalam (the third respondent) and the grant of special leave by the Court and its entertaining the appeal violates Article 21 of the Constitution.
23. The maintainability of the appeal on the ground that Arunachalam was not entitled to petition under Article 136 of the Constitution for special leave was challenged before the Bench hearing the appeal, but the Bench over-ruled the objection holding that it had ample power u/art. 136 to entertain the special leave petition. The learned Judges laid down that the Court had jurisdiction to entertain appeals against judgments of acquittal by the High Court at the instance of private parties. We have read the judgment of our learned brother V. R. Krishna Iyer, but because of the importance of the question we consider it necessary to set down our own view.
24. The expense of the appellate jurisdiction of the Supreme Court flows from an entire code of provisions contained in the Constitution. It includes an appeal on certificate by the High Court u/art. 132 that the case involves a substantial question of law as to the interpretation of the Constitution in a civil, criminal or other proceeding disposed of by a judgment, decree or final order of a High Court, and an appeal on certificate u/art. 133 that the case involves a substantial question of law of general importance which calls for decision by the Supreme Court.
25. In a criminal proceeding, disposed of by a judgment or final order or sentence of a High Court, besides cases where the High Court has convicted the accused and sentenced him to death either on reversing in appeal an order of acquittal by the trial court or on the case being withdrawn from the subordinate court to itself for trial, an appeal lies to the Supreme Court where the High Court "certifies that the case is fit one for appeal to the Supreme Court". Art. 135 confers jurisdiction and power on the Supreme Court with respect to any matter to which art. 133 or art. 134 does not apply if such jurisdiction and power were exercisable by the Federal Court immediately before the commencement of the Constitution. art. 136 declares: "136. (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India." Then follow other provisions to which we need not refer.
26. Plainly, the jurisdiction conferred by Article 136 seeks to confer on this Court the widest conceivable range of judicial power, making it perhaps among the most powerful courts in the world. The judicial power reaches out to every judgment, decree, determination, sentence or order effecting the rights and obligations of persons in civil matters, of life and liberty in criminal matters as well as matters touching the Revenues of the State. It is an attempt to ensure that the foundations of the Indian Republic, which have been laid on the bed-rock of justice, are not undermined by injustice anywhere in the land; Bharat Bank Ltd. v. Employees of the Bharat Bank Ltd. As the Court observed in Durga Shankar Mehta v. Thakur Raghuraj Singh and Others 1954 Indlaw SC 134. Art. 136 vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing appeals by grant of special leave.
27. Nonetheless, there is a limitation which, in our opinion, is of immediate relevance. It is a limitation inbuilt into the jurisdiction of the Court and flows from the nature and character of the case intended to be brought before the Court. It is a limitation which requires compliance despite the apparent plenitude of power vested in the Court. When a petition is presented to the Court under art. 136, the Court will have due regard to the nature and character of the cause sought to be brought before it when entertaining and disposing of the petition. The question is Does the brother of a deceased person, who has been murdered, possess the right to petition under art. 136 of the Constitution for special leave to appeal against an acquittal of the accused ? It is a question which touches directly on the nature of a crime and of a criminal proceeding.
28. Several different definitions of a crime have been attempted (and there are some jurists who say that it is impossible of definition), but there is broad agreement on one attribute of its nature, that it is an illegal act which amounts to a wrong against the public welfare. Mogul Steamship Co. v. Cm Greger Gew & Co. As a concept, crime has been defined as "any conduct which a sufficiently powerful section of any given community feels to be destructive of its own interests, as endangering its safety, stability or comfort," which "it usually regards as especially heinous and seeks to repress with corresponding severity; if possible it secured that the forces which the sovereign power in the State can command shall be utilised to prevent the mischief or to punish anyone who is guilty of it." Crimes were defined by Blackstone as "the breach and violation of public rights and duties which affect the whole community."
29. A crime, therefore, is an act deemed by law to be harmful to society in general even though its immediate victim is an individual. Murder injures primarily the particular victim, but its blatant disregard of human life puts it beyond a matter of mere compensation between the murderer and the victim's family. Those who commit such acts are proceeded against by the State in order that, if convicted, they may be punished. The notion of crime as a threat to the whole community, is the material counterpart of the formal rule that the State alone is master of a criminal prosecution. In a criminal proceeding the State stands forward as prosecutor on public grounds. No private person has a direct interest in a criminal proceeding, although exception may be made by the statute in certain cases. It is common knowledge that a criminal prosecution is not intended for the private satisfaction of a personal vendetta or revenge. In India also, the criminal law envisages the State as the prosecutor.
30. Under the Code of Criminal Procedure, the machinery of the State is set in motion on information received by the police or on a complaint filed by a private person before a Magistrate. If the case proceeds to trial and the accused is acquitted, the right to appeal against the acquittal is closely circumscribed. Under the Code of Criminal Procedure, 1898 the State was entitled to appeal to the High Court, and the complainant could do so only if granted special leave to appeal by the High Court. The right of appeal was not given to other interested persons. Under the Code of Criminal Procedure 1973, the right of appeal vested in the State has now been made subject to leave being granted to the State by the High Court. The complainant continues to be subject to the pre-requisite condition that he must obtain special leave to appeal.
31. The fetters so imposed on the right to appeal are prompted by the reluctance to expose a person, who has been acquitted by a competent court of a criminal charge, to the anxiety and tension of a further examination of the case, even though it is held by a superior court. The Law Commission of India gave anxious thought to this matter, and while noting that the Code recognised a few exceptions by way of permitting a person aggrieved to initiate proceedings in certain cases and permitting the complainant to appeal against an acquittal with special leave of the High Court, expressed itself against the general desirability to encourage appeals against acquittal. It referred to the common law jurisprudence obtaining in England and other countries where a limited right of appeal against acquittal was vested in the State and where the emphasis rested on the need to decide a point of law of general importance in the interests of the general administration and proper development of the criminal law.
32. But simultaneously the Law Commission also noted that if the right to appeal against acquittal was retained and extended to a complainant the law should logically cover also cases not instituted on complaint. It observed: "Extreme cases of manifest injustice, where the Government fails to act, and the party aggrieved has a strong feeling that the matter requires further consideration, should not, in our view, be left to the mercy of the Government. To inspire and maintain confidence in the administration of justice, that limited right of appeal with leave given to a private party should be retained, and should embrace cases initiated on private complaint or otherwise at the instance of an aggrieved person."
33. However, when the Criminal Procedure Code, 1973 was enacted the statute, as we have seen, confined the right to appeal, in the case of private parties to a complainant. This is, as it were, a material indication of the policy of the law. Having regard to the fundamental nature of a criminal proceeding to which reference has been made, it is now appropriate to examine the considerations which the Court should keep in mind when entertaining a petition for special leave to appeal by a private party against an order of acquittal. From what has been said, it is plain that 'access to the jurisdiction under Article 136 cannot be permitted to a private party who seeks to employ the judicial process for the satisfaction of private revenge or personal vendetta.
34. Nor can it be permitted as an instrument of coercion where a civil action would lie. In every case, the Court is bound to consider what is the interest which brings the petitioner to court and whether the interest of the public community will benefit by the grant of special leave. 'In a jurisprudence which elevates the right to life and liberty to a fundamental priority, it is incumbent upon the court to closely scrutinise the motives and urges of those who seek to employ its process against the life or liberty of another.' In this enquiry, the Court would perhaps prefer to be satisfied whether or not the State has good reason for not coming forward itself to petition for special leave. We think that the Court should entertain a special leave petition filed by a private party, other than the complainant, in those cases only where it is convinced that the public interest justifies an appeal against the acquittal and that the State has refrained from petitioning for special leave for reasons which do not bear on the public interest but are prompted by private influence want of bona fide and other extraneous considerations.
35. We would restrict accordingly the right of a private party, other than the complainant, to petition for special leave against an order of acquittal. It is perhaps desirable to keep in mind that what follows from the grant of special leave is an appeal, and the jurisdiction must, therefore, be invoked by a petitioner possessing a locus standi recognised in law. In regard to the question whether the procedure followed by this Court in disposing of a petition for special leave under Article 136 is consistent with the procedure contemplated by Article 21, we have no hesitation in holding that the principle is inbuilt within the terms of Article 136 itself that the Court in exercising its jurisdiction will do so as a court of law following the well-known norms of procedure which have been recognised for long as governing and informing the proceedings of all courts. We have no hesitation in holding that Article 21 is not violated. The petitioner has failed to establish that there is a case for interfering with the judgment of this Court allowing the appeal. The writ petition is dismissed, but in the circumstances there is no order as to costs.
Petition dismissed.


Mushtak Hussein v State of Bombay
Supreme Court of India

30 March 1953
Criminal Appeal No.96 of
1952
The Judgment was delivered by : Mehr Chand Mahajan, J.
1. The appellant on 28th July, 1951, was convicted on a charge under section 366, Indian Penal Code, for having kidnapped at Poona a minor girl Shilavati in order that she may be forced or seduced to illicit intercourse and was sentenced to undergo rigorous imprisonment for two years after a trial before the third additional Sessions Judge of that place sitting with a jury of live. The jury returned a verdict of guilty by a majority of three to two. The Sessions Judge came to the conclusion that the verdict was not perverse. He therefore accepted it. The appellant preferred an appeal to the High Court but this was summarily dismissed. This appeal is before us by special leave.
2. The prosecution case was that on the 12th December, 1949, the appellant who was a. music teacher went to the house of Shilavati and on the pretext that there was a girl waiting in his house and that he' wanted to compare the voice of Shilavati with the voice of the girl took her to his house, and with the assistance of one Iqbal Putlabai (accused 2) kidnapped her. Shilavati was traced in Bombay after four months in the house of one Babu Konde. Thereafter she was medically examined and it was found that she was pregnant.
3. To prove the case against the appellant the prosecution examined in all sixteen witnesses. Out of these four were eye-witnesses, viz., Prahlad, Jamunabai, Namdeo and Shilavati. Yamunabai, the mother of Shilavati, stated that on 12th December when she returned home in the evening she learnt from her sister-in-law Jamunabai and others that the appellant had taken Shilavati on the pretext that he wanted to compare her voice with that of one Prabha who was waiting in his house and thereafter Shilavati had not come back, that on getting this information she along with her brothers and sister-in-law went to the house of the appellant and questioned him as to why Shilavati was not sent back, whereupon the appellant replied that he had sent her by bus. As Shilavati did not return home, she went to the police and lodged a complaint. Ananda, uncle of the girl, deposed to the same effect. Prahlad, brother of Shilavati, a boy of school-going age, deposed that he saw Shilavati going with the appellant while he was playing outside the school. Namdeo, who is a bricklayer, stated that on the 12th December while he was returning after completing his work at about 3-30 p. m. he saw Shilavati going with the appellant. On medical examination it was found that Shilavati was a girl of 15 or 16 years of age and that 'she was pregnant. Shilavati was examined as P, W, 10 and she deposed that the accused came to her house at about 3-30 p.m. and told her that there was a singing party at Kirkee and that she should accompany him there, that she went with him on the promise that the appellant would send her back before her mother returned home, that while at the appellant's house she was asked to smell certain scents and she felt giddy and could not speak and when she came to senses in the morning she found herself in Bombay in a hut at Sion. She further said that on enquiry from one Kassam she was told that the appellant had left her there.
4. On the 12th December at about 11-40 p.m. Yamunabai went to Padamji Gate police station and lodged a complaint there. In the complaint it was stated that Shilavati had quarrelled with one Shantabai and had left the house and since then she had not returned. The police were asked to find out her whereabouts. On the 13th she sent a complaint to the Police Inspector, A Division, Poona. Therein she made the allegation that the appellant used to come to her house for coaching Shilavati in harmonium, that she learnt that he had sent a chit to her daughter in her absence and had called her to his house and that on enquiries about Shilavati's whereabouts he had given evasive answers. The police head- constable who was on duty on receipt of this complaint examined Yamunabai. He read out the application to her and recorded her statement which reads thus:" My daughter Shilavati age about 13/14 has left my house at 4 p.m. I made search for my daughter at the house of my paternal aunt, but I could not find her there. M. H. Gyani (appellant) used to come to my house for coaching up my daughter in singing. I do not know whether he has taken away my daughter nor have I seen him taking her away. I have mentioned his name in my application through mistake. My daughter has gone out of my house to some other place. A search should therefore be made for her  I again state that my daughter left the house after quarrelling with my mother Harnabai. This is given in writing.
5. In July, 1950, Yamunabai sent an application to the Collector of Poona. In this application she said that she had appointed the appellant as a. music master for her daughter, that on Monday the 12th December, 1949, at about 6 p. m. the appellant and his friend Badsha had induced and kidnapped her to an unknown place. She asserted therein that she was sure that nobody but both M. H. Gyani and Badsha had kidnapped her daughter. In the witness box Yamuna Bai, as already stated, gave a different story and Shilavati herself did not fully support the version of her mother. On the 14th March, 1950, a letter, Exhibit 4-G, was sent by Shilavati to her mother. The relevant part of this letter is in these terms:" Since last so many days, I have left the house and I have not sent any letter to you and you must also be worrying as to where I have gone. I am at Bombay and quite well too. Do not worry about me, I had gone to the river at Bamburda, and there some one forced me and brought me to Bombay and he was prepared to marry with me. He was an ordinary and old fellow. J did not like it and he was going to convert me ' to Mahomedanism. I felt very sorry for this and I was very much sad. He beat me twice or thrice. To whom shall I express my sorrow ? But there was a boy staying, there whom I told all the facts and told him to save me anyhow. He promised to save me. There were two days remaining for my marriage. Till then, he arranged for my stay and also for dinner, and one day before the marriage, previous night he took me out from that place. There were many police complaints against him, and he, at the cost of his life, saved me. I married him in order to return his obligations. Now I am very happy, I am not in need of anything now. He is an ordinary boy. He works in a press, and he is a worker. He is from us and his name is Baburao Konde and next  time we will send a photograph of both of us. Do not worry about me. I am very happy. Namaskar to all, elderly persons and ashirwadas to youngsters. Namaskar to grandmother Harnabai. Convey namaskars to Anand mama, Vithal mama, Ram mama, Shankar, Prahlad, Laxman, Hirabai, Jamnabai, Yamunabai, Jaibai, and to master Shilavati is admittedly a talented Harijan girl who used to take part in dramatic peformances and used to give public peformances in music and dancing on some remuneration. The letter written by her from Bombay speaks for itself and it was on receipt of this letter and further correspondence to which it is not necessary to refer that the police got clue of her where abouts and were able to restore her to her mother Yamunabai.
6. The statute law in India in certain circumstances permits an appeal against a jury's verdict and authorizes the appellate court to substitute its own verdict on its own consideration of the evidence. It has conferred on the appellate court extensive powers of overruling or modifying the verdict of a jury in the interests of due administration of justice confident that the appellate judges who have not themselves seen and heard the witnesses, will not exercise lightly the responsible power entrusted to them. S. 423 in sub-section (2), Criminal Procedure Code, states as follows:" Nothing herein contained shall authorize the court to alter or reverse the verdict of a jury unless it is of opinion that such verdict is erroneous owing to a misdirection by the judge or to a misunderstanding on the part of the jury of the law as laid down by him.
7. S. 537 in sub-cl. (d) provides that no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal on account of any misdirection in any charge to the jury unless such error, omission, irregularity or misdirection has in fact occasioned a failure of justice. Unless therefore it is established in a case that there has been a serious misdirection by the judge in charging. the jury which has occasioned a failure of justice and has misled the jury in giving its verdict the verdict of the jury cannot be set aside. The learned counsel for the appellant contended that the judge in his charge to the jury misdirected it in several important particulars and violated the rules of criminal jurisprudence and of evidence in a number of ways. It was said that he failed to warn the jury that it would be unsafe for it to act on the statement of Shilavati without her statement being corroborated by other evidence, in material particulars. The judge, according to the learned counsel, should have told the jury that though in law it was open to them if in the circumstances of this case they thought fit to do, to act on the uncorroborated testimony of Shilavati but that ordinarily it was not safe to do so without that statement being corroborated in material particulars. This omission on the part, of the judge, it was urged, amounted in law to a grave misdirection and the jury in all likelihood without such a warning arrived at its verdict on the basis of the uncorroborated evidence of the girl. That part of the charge in which reference was made by the judge to Shilavati's evidence wherein she had said that she was told by Kassam Khan that the appellant had left her there was criticized on the ground that the jury bad been directed to act on inadmissible evidence. Then it was contended that it was a serious misdirection to direct the jury that it had to solve the jigsaw puzzle that had arisen in the case by using their own ingenuity and by piecing together the various pieces of the puzzle. The last misdirection relied upon concerned the following part of the charge:-
"After weighing the probabilities of the case, the evidence on record, as prudent men if you come to the conclusion that the story given by the prosecution does not appear to be probable and that the accused must not have committed the offence, then in that case you have to return a verdict of not guilty."
8. In our judgment, it is not necessary to pronounce on all the points urged by the learned counsel, because we are of the opinion that the judge clearly misdirected the jury when he asked it to solve the problem that had arisen by exercising its ingenuity and by resorting, if necessary, to speculative reasoning. In other words, the judge gave the jury a carte blanche to, come to its conclusion on the basis of its own conjectures, if necessary. Not only that. He told the jury to hold the accused not guilty in case it found it improbable that he must not have committed the offence. These propositions placed before the jury are repugnant to all notions of criminal jurisprudence and they must necessarily have affected its mind in arriving at the conclusion. This is how the charge on this point reads:" So you will find, gentlemen, that there are as many as six versions before this court and therefore you have to consider all these versions and probabilities of the case, to find out whether the improved version now before the court is a correct one. I would like also to bring to your notice the letter written at the instance of Shilavati from Bombay. That letter is Exhibit 4-G. Shilavati in her examination before the court does not admit that this letter was written at her instance.
9. However, she has admitted before the police that this letter was written at her instance, and this was brought out in her cross-examination. In this letter she had stated that she had gone on that day to Bamburda river and there she was forcibly kidnapped by some man who was about to marry her. That man was an old man and she did not approve that marriage. Fortunately, this Konde came to her rescue and took her to Bombay and married her. That is her statement. Now, gentlemen, this is a jigsaw puzzle kept before you. In jigsaw puzzles all the pieces are kept before us and we have to use our ingenuity and piece them together. Some links are missing in this case. However, as rightly submitted by the learned Assistant Public Prosecutor, in such cases you have to weigh the probabilities of the case and therefore you have to find out from the material before us whether you can solve this jigsaw puzzle. Now these points are before you that there was a quarrel with Shantabai. The chit was alleged to have been sent by accused No. 1, and then the girl went to Bamburda river and there she was kidnapped by somebody. Now, gentlemen, you have to consider whether it is or it is not possible that the girl Shilavati might have received soma chit probably from the accused No. 1. This chit was seen by Shantabai who exposed to Harnabai the grandmother of the girl. The witness Harnabai is an old woman and probably she was put out and ;he might have taken her to task, and she might have even gone to the length of stating that she should go out of the house. Here is a young girl having hot blood, and it is or is it not probable that the girl in desperation had gone to Bamburda, and she mentions the river, and gentlemen, you can find that there is a confluence of the rivers Mula and Mutha; why did she go to the river ? Whether it is probable that she wanted to commit suicide. You will find, gentlemen, that near that confluence there is a mosque and in the evidence it has come out that the girl was found at the hut at Sion with an old Mahommedan named Kassam Khan and his keep. You have to consider whether it is probable that this Kassam Khan and his keep induced the girl to go with them to Bombay and whether Kassam Khan wanted to marry her there. You have to find out whether it is probable that this chivalrous man Konde rescued her from the old man Kassam Khan who was about to marry her and got himself married to the girl. The fact remains that the girl was found with Konde in Bombay ultimately. It is in evidence of the girl herself that she found herself in a hut at Sion and Kassam Khan and his keep were keeping a watch over her  So, gentlemen, you Will have to find out all the probabilities of the case and before us by the prosecution.
10. Had the charge to the jury stopped with the sentence, "So you will find, gentlemen, that there are as many as six versions before this court and therefore you have to consider all these versions and probabilities of the case, to find out whether the improved version now before the court is a correct one", no exception could possibly have been taken to it. When the learned judge however, proceeded to direct the jury to piece together the various pieces of the jigsaw puzzle by use of their ingenuity he clearly misdirected them inasmuch as he told them that they could in' solving the problem draw upon their own imagination and exercise their ingenuity in the matter without reference to the evidence that had been placed by the prosecution on the record. Not only that, the learned judge himself indulged in speculation and placed a number of conjectures before the jury for its consideration. The learned judge surmised that the girl might well have gone to the river for committing suicide and asked the jury to consider this surmise as well. It was further surmised that a chit from the accused was received by Shilavati and that Shantabai saw that chit, and disclosed it to Harnabai, the grandmother, who in all likelihood took her to task and told her to get out of the house and thereupon the hot-blooded Shilavati went to the river to commit suicide. There is no evidence whatsoever on the record about the actual receipt of that chit, of Shantabai seeing it and exposing this fact to Harnabai and of Harnabai threatening Shilavati. All these considerations mentioned to the jury were the results of the judge's fertile imagination and were bound to mislead it into the belief that they could indulge in like conjectures and surmises in their effort to solve the puzzle. The direction to the jury that it was to solve the jigsaw puzzle by use of its ingenuity does not find place in an isolated passage of the charge, but runs through it. While winding up the learned judge again reiterated it and Said:-
"As I have already told you, you have to piece together all the pieces of the jigsaw puzzle and try to., find out what story appears to you to be probable; whether the girl was drugged at all, or whether as stated by her in her letter she went to a river at Bamburda and there she met this Kassam Khan and his keep and along with them she went to Bombay of her own accord."
In the concluding part of the charge the learned judge said:-
"After weighing the probabilities of the case, evidence on record, as prudent men if you come to the conclusion that the story given by the prosecution does not appear to be probable and that the accused must not have committed the offence, then in that case you have to return a verdict of not guilty."
11. It is not possible say that these words were likely to give a correct lead to the jury in reaching its conclusion. All that the jury should have been told was that after weighing the probabilities of the case and the evidence on the record, as prudent men they should answer "whether the prosecution had made out the charge against the accused." We are satisfied that as a result of These misdirection's the jury in all likelihood gave a divided verdict of guilty by three to two not on evidence but on the basis of assumptions and conjectures.
12. In this situation, the question for consideration is what procedure should be followed by this court for undoing the mischief that has happened and which would be most conducive to the ends of justice. The simplest course open to us is to order a retrial of the appellant. It is also open to us to remit the case to the High Court with a direction that it should consider the merits of the case in the light of our decision and say whether there has been a failure of justice as a result of these misdirection's. Lastly it is open to us to examine the merits of the case and decide for ourselves whether there has been a failure of justice in the case and an innocent man has been convicted.
13. It is now well settled that in deciding whether there has been in fact a failure of justice in consequence of a misdirection the court is entitled to take the whole case into consideration. Vide Abdul Rahim v. Emperor A.I.R. 1946 P.C. 821 1946 Indlaw PC 13. The words "in fact" in s. 637 (d), Criminal Procedure Code, emphasize the view that the court is entitled to go into the evidence itself in order to determine whether there has been a failure of justice. In the peculiar circumstances of this case we have chosen to adopt the third course, because at this moment of time it is most conducive to the ends of justice. It seems plain to us that on the material on this record no reasonable body of persons could possibly have arrived at the conclusion that the appellant kidnapped Shilavati as alleged by the prosecution. We have taken upon ourselves the responsibility of deciding this case without the valuable opinion of the High Court because we feel satisfied that any other course would cause unnecessary harassment to the appellant. With great respect we are, however constrained to observe that it was not right for the High Court to have dismissed the appeal preferred by the appellant to that court summarily, as it certainly raised some arguable points which required consideration though we have not thought it fit to deal with all of them. In cases which prima facie raise no arguable issue that course is, of course, justified, but this court would appreciate it if in arguable cases the summary rejection order gives some indication of the views of the High Court on the points raised. Without the opinion of the High Court on such points in special leave petitions u/art. 136 of the Constitution this Court sometimes feels embarrassed if it has to deal with those matters without the benefit of that opinion.
14. The, learned Solicitor-General contended that this was not a fit case where the court was justified in going behind the verdict of the jury and in deciding the case in accordance with its own view of the evidence. It was argued that the charge to the jury had to be taken as a whole, that though some slight exception might be taken to certain passages in the charge the learned judge had placed the case of both sides fairly before the jury and that not only did the learned judge place fairly the case of both sides before the jury, he indicated his opinion on the evidence strongly against the prosecution and that being so, the accused could not be allowed to say that the charge which was strongly in his favour and against the prosecution was defective in law. It was said that it was open to the jury to accept the statement of the mother of the girl as well as the statement of the girl in spite of the different conflicting versions mentioned in the charge and that the jury having done so, the matter stood concluded.
15. As already observed, charge to the jury cannot be said to be a fair charge if it tells the jury to approach the decision of the matter from a wrong angle, and directs it to reach its decision by exercise of its own ingenuity and by having recourse to conjectures and speculative reasoning. This convention of the learned Solicitor-General therefore cannot be seriously considered.
16. That the verdict of the jury was erroneous in that it could not be the verdict of any body of reasonable men in the circumstances of this case is fully established by the facts and circumstances on the record. What Yamunabai deposed in court has been set out in the earlier part of this judgment. Her case now is that when she returned home on the 12th December, 1949, at about 6-30 p.m., she found that Shilavati was not in the house, she made enquiries from Jamna and Hira, she was told that accused 1 came and told them that there was a girl in his house and her voice was to be compared with Shilavati's voice and took her away on that pretext. Prahlad, P.W. 4, deposed that when his mother returned home at 6 p.m. he told her that Shilavati had been seen by him in the company of accused 1. Jamnabai, P.W. 5, stated that the accused came to the house at 3 p.m. and on the pretext that one girl had come to his house for singing he took Shilavati and that when Yamunabai returned she informed her of what had happened. Ananda, P.W. 6, repeated the same story. This story stands completely demolished by the different complaints that Yamunabai made to the police. There is no satisfactory explanation whatsoever why when she made her first report to the police at 11-40 p.m. she did not tell the police that she had been told by her son, by Jamuna and by Namdev that the girl had been taken away by the appellant and that he had told them that she had been sent back in a bus. Not only this, after she had sent a written complaint on the 13th December to the Police Inspector, Poona, suspecting the appellant of having kidnapped her daughter, she made a statement to the head-constable, withdrawing that allegation in most unambiguous terms and stated that the girl had left the house after quarrelling with Harnabai. In the first report to the police she had said that the girl had left after quarrelling with one Shantabai. These statements made by her could not be said to be the result of mere figments of her brain. She must have made them on some basis. They give the lie direct to her present version. When later on she sent an application to the Collector accusing the appellant and Badsha of having kidnapped her daughter she. asserted that they had taken her away to an unknown.place at 6 p. m., though the occurrence in then earlier complaints was alleged to have taken place at about 3-30 p. m. The letter of 14th March, 1960, written at the instance of Shilavati to Yamunabai falsifies all the versions given by her and clearly suggests that the girl left the house of her own accord. In this letter she sent her regards to the appellant.
17. If he had kidnapped, her, that expression of respect would not have found place in that letter at all Another version was mentioned in the evidence as to how the occurrence took place. It was stated that the girl received a chit from the appellant and. on the basis of this chit a quarrel ensued and the girl left the house. On this state of the record it is quite evident that the version now given by Yamunabai to court or by Shilavati after she had come under the influence of her mother cannot be accepted. It seems that the appellant because he was a music master and had been giving lessons to the girl a few months before her disappearance has been convicted on a charge under section 366, Indian Penal Code,' not on the basis of evidence but on the basis of surmises and, conjectures. The learned Solicitor-General referred us to the statement of the bricklayer and of the boy Prahlad. A mere reading of their statements shows that these are not true and have been procured to fill in gaps in the prosecution case. Harnabai was not produced as a witness in the case and the learned judge in his charge to the jury was right when he observed that a number of links were missing in the prosecution case and they could only be filled in on the basis of conjectures. Both Yamunabai and Prahlad studiously avoided stating that the girl took part in dramas or that she danced in public places. They tried to make out that Shilavati was an unsophisticated girl having no knowledge of the world and that she never danced in public places or she never acted in public dramas. There is ample material on the record consisting of her photos in the advertisements as well as in the statements made to the police which establishes that she acted in various dramas for which she was paid at the rate of Rs. 5 for each performance and that she gave, dance performances and she was intending to make singing and dancing as her profession.
18. The very fact that the brother and the mother were at pains to create a false impression on the court by deposing falsely was itself sufficient to show that no reliance could be placed on their testimony. We are therefore firmly of the opinion that there has been a grave failure of justice in this case and the appellant, an innocent man, has been convicted of a serious offence on a verdict of the jury arrived at in all likelihood on the basis of conjectures and that that verdict was the. Consequence of the misdirection given to the jury by the judge.
19. For the reasons given above we allow this appeal, set aside the verdict of the jury, and acquit the appellant of the offence with which he was charged.