MAHABIR & ORS. versus STATE OF HARYANA (29/01/2025) — Supreme Court headnote

AI-generated headnote. Verify against the judgment before relying on it. Paragraph numbers refer to the judgment.

Summary

The Supreme Court set aside a High Court judgment that, in a revision by the deceased's father against the trial court's acquittal, convicted the appellants of murder and sentenced them to life imprisonment without serving notice on them. Section 401(3) CrPC bars a revisional court from converting an acquittal into a conviction, Section 401(2) requires a hearing, and Section 401(5) could not apply because the victim's right of appeal under the proviso to Section 372 (effective 31.12.2009) is substantive and not retrospective. The High Court had also wrongly treated a hostile witness's police statement as substantive evidence. The State was directed to pay Rs. 5 lakh compensation to each appellant for over three months of unlawful detention.

Issues

Whether the High Court, in revision under Sections 397 and 401 CrPC, could convert a finding of acquittal into one of conviction.
Whether an order to the prejudice of acquitted accused could be passed in revision without serving them and giving them an effective hearing.
Whether the revision could be treated as an appeal under Section 401(5) CrPC by giving retrospective effect to the proviso to Section 372 CrPC.
Whether a hostile witness's statement to the police under Section 161 CrPC can be used as substantive evidence.
Whether the appellants were entitled to compensation for their detention under the High Court's judgment.

Provisions considered

Section 401(3) (read with Section 397), Code of Criminal Procedure, 1973The bar is categorical: a revisional court cannot convert an acquittal into a conviction. Following Bindeshwari Prasad Singh, Joseph Stephen and Ganesha, the Court held that in exceptional cases the High Court may set aside an acquittal and remit, but cannot convict. (¶¶ 32, 33, 34, 39, 40, 42, 46)
Section 401(2), Code of Criminal Procedure, 1973No order may be made to the prejudice of the accused without an opportunity of hearing. The appellants were never served, and counsel appointed for them on the day of hearing had no papers or instructions; relying on Manharibhai Muljibhai Kakadia, Bal Manohar Jalan and Santhakumari, the conviction was held to be in the teeth of this provision. (¶¶ 14, 15, 26, 33, 43, 44, 46)
Section 401(5), Code of Criminal Procedure, 1973A revision may be treated as an appeal only where an appeal lies under the Code, the revision was filed under an erroneous belief that none lies, and the court records that satisfaction in a judicial order (Joseph Stephen). No such order was passed, and when the revision was filed in 2006 the victim had no right of appeal, so the provision could not apply. (¶¶ 35, 37, 41, 72)
Section 372 and its proviso; Section 2(wa), Code of Criminal Procedure, 1973The proviso, inserted by Act 5 of 2009 with effect from 31.12.2009, gives a victim (as defined in Section 2(wa)) a right of appeal against acquittal. The Court held it is a stand-alone substantive provision, not merely an exception to Section 372, and, creating a new right of appeal, it is prospective; following Mallikarjun Kodagali, the relevant date is the date of acquittal. (¶¶ 36, 37, 48, 50, 53, 54, 55, 63, 67, 68, 69, 72)
Section 378(1)(b) and (3), Code of Criminal Procedure, 1973In 2006 only the State could appeal against the acquittal to the High Court, and it did not do so. The Court also noted that the victim's appeal under the proviso to Section 372 needs no leave under Section 378(3). (¶¶ 38, 67)
Section 162, Code of Criminal Procedure, 1973Statements recorded under Section 161 cannot be used for any purpose except to contradict the witness as provided; the High Court erred in treating a hostile witness's police statement as the truthful version and acting on it in preference to his testimony. (¶¶ 74, 75, 76, 77, 80, 81)
Section 145, Indian Evidence Act, 1872Following Anees v. State (NCT of Delhi) and V.K. Mishra, a previous statement can be used to contradict a witness only after drawing his attention to the relevant part and proving it through the investigating officer; contradictions so proved are not substantive evidence and cannot found a conviction. (¶¶ 75, 77, 80, 81)
Articles 21 and 22(1), Constitution of IndiaRelying on D.K. Basu and Nilabati Behera, the Court held that constitutional courts may award compensation where a person is deprived of liberty without following the procedure established by law and the facts are undisputed, and treated reputation as a facet of the right to life with dignity. (¶¶ 45, 82, 83, 84, 88, 89)

Held

Section 401(3) CrPC expressly prohibits the High Court in revision from converting a finding of acquittal into one of conviction; at most, in exceptional cases of manifest illegality or gross miscarriage of justice, it may set aside the acquittal and remit for retrial. The High Court committed an egregious error in convicting the appellants in revision. (¶¶ 34, 39, 40, 42, 46)
Acquitted accused cannot be prejudiced in revision without notice and an effective hearing under Section 401(2) CrPC; deciding the revision without service on them, with counsel appointed for them the same day without papers or instructions, violated the provision and natural justice. (¶¶ 14, 15, 26, 43, 44, 46)
To treat a revision as an appeal under Section 401(5) CrPC, an appeal must lie under the Code, and the High Court must record in a judicial order its satisfaction that the revision was filed under an erroneous belief that no appeal lay and that justice so requires; no such order was passed here. (¶¶ 35, 41)
The proviso to Section 372 CrPC is a stand-alone substantive provision creating a new right of appeal for victims; as a statute creating new rights it operates prospectively and is not retrospective. A victim had no right to appeal against an acquittal recorded, and challenged by revision filed in 2006, before 31.12.2009, so Section 401(5) could not be invoked; the State's contrary argument was a serious misconception of law. (¶¶ 48, 49, 50, 53, 54, 67, 68, 69, 72)
A statement made to the police under Section 161 CrPC is not substantive evidence; it can be used only to contradict the witness in the manner required by Section 145 of the Evidence Act, and even contradictions duly proved through the investigating officer do not become substantive evidence on which a conviction can rest. The High Court erred in relying on a hostile witness's police statement. (¶¶ 74, 76, 80, 81)
Where a person is deprived of liberty without following the procedure established by law and the facts are not in dispute, constitutional courts may award compensation in public law. The appellants, in their sixties and seventies and acquitted about 20 years earlier, were held entitled to compensation for more than three months of incarceration under the High Court's judgment, payable by the State. (¶¶ 84, 85, 89, 98, 99)
The Court deprecated the Public Prosecutor's plea for the death penalty instead of pointing out the statutory bar, held the State responsible as appointing authority, and observed that Public Prosecutors in the High Courts must be appointed solely on merit and must act fairly towards the court and the accused. (¶¶ 90, 91, 92, 94, 95, 96, 98)

Result

Appeals allowed; High Court's judgment of conviction and order on sentence set aside; State Government directed to pay Rs. 5,00,000 compensation to each of the three appellants within four weeks; bail bonds discharged; matter to be listed after four weeks to report compliance.