Jamuna Singh v. State Of Bihar — 1974 DIGILAW 90 (PAT)

Judgment 1. This application in revision is directed against an order passed by the learned Additional Sessions Judge. Third Court, Patna, passed in Criminal Appeal No. 31 of 1969, setting aside the order of conviction and sentence passed against the petitioners by a Munsif-Magistrate. First Class, Dinapore, and remanding the case to the trial Court with a direction to afford an opportunity to the prosecution to examine two injured witnesses who could not be examined during the trial. 2. The learned Munsif-Magistrate had convicted petitioner No. 1 under Sections 326 and 148 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for two years under Sec.326 and for one year under Sec.148. Petitioner No. 2 had been convicted under Sections 323, 147 and 326/149 of the Penal Code, and the remaining petitioners were convicted under Ss.147, 325/34 and 326/149 of the Indian Penal Code. 3. The prosecution case, in brief, was that, on the 13th August, 1965, at about 7 p.m., the informant Bhuneshwar Singh and others were sitting in front of the mill of Bhuneshwar Singh, situate in village Fatehpur, P.S. Paliganj. It was alleged that these petitioners came there variously armed. Petitioner No. 1 gave orders for assault and himself assaulted one Jadu with a garasa. The said Jadu was also assaulted by petitioner Nanhak Ram with lathi. Petitioner Nanhak Ram also gave a lathi blow to one Raibali. Informant Bhuneshwar Singh fled into his mill where he was chased, but he managed to escape. Therefore, the accused persons fled away. 4. At the trial, the prosecution examined witnesses in support of its case, but it appears that the aforesaid two injured witnesses, Jadu and Rajbali, could not be examined on behalf of the prosecution. The learned Munsif-Magistrate, on the materials on record, came to the conclusion that the prosecution had proved its case against the accused persons. The petitioners were, accordingly, convicted and sentenced. 5. Against the said judgement of the learned Munsif Magistrate, the petitioner preferred the aforesaid appeal. In support of the appeal, learned counsel appearing for the petitioners urged that the two important injured witnesses, that is, the aforesaid Jadu and Rajbali, had not been examined on behalf- of the prosecution, and. as such, adverse inference should be drawn against it. 5. Against the said judgement of the learned Munsif Magistrate, the petitioner preferred the aforesaid appeal. In support of the appeal, learned counsel appearing for the petitioners urged that the two important injured witnesses, that is, the aforesaid Jadu and Rajbali, had not been examined on behalf- of the prosecution, and. as such, adverse inference should be drawn against it. The learned Additional Sessions Judge, instead of disposing of the appeal on merits, by the impugned order set aside the order of conviction and sentence, remanded the case to the trial Court and directed it to examine the aforesaid two injured witnesses, Jadu and Raibali. He has further directed that, after the examination of the aforesaid two witnesses, the accused persons should be again examined under Sec.342 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the Code) and they should be allowed to examine any witness in their defence. The learned Additional Sessions Judge has further directed that, after hearing the arguments of the parties, the trial Court shall pronounce judgement on-merits in accordance with law. 6. Learned Counsel for the petitioners has urged that, under the Code, a remand of the kind ordered by the learned Additional Sessions Judge is unknown. In my opinion, there is substance in the contention of the learned Counsel. Powers of the appellate Court have been prescribed under Sec. 423 of the Code. A Court hearing an appeal against a judgement of conviction can order a retrial of the accused persons by a Court of competent jurisdiction. The relevant Cl. (b) of S.423(1) of the Code is as follows : "423(1) The Appellate Court shall then send for the record of the case, if such record is not already in Court. A Court hearing an appeal against a judgement of conviction can order a retrial of the accused persons by a Court of competent jurisdiction. The relevant Cl. (b) of S.423(1) of the Code is as follows : "423(1) The Appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears and in case of an appeal under Sec. 411-A. sub-section (2), or Sec. 417, the accused, if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may- **** (b) in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction, subordinate to such Appellate Court or committed for trial, or (2) alter the finding, maintaining the sentence, or with or without altering the finding, reduce the sentence, or, (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence but, subject to the provisions of Sec.106, Sub-Sec. (3), not so as to enhance the same; ****" In the instant case, the learned Additional Sessions Judge had not exercised this power on ordering retrial. In paragraphs 11 and 12 of his judgement, the learned Judge has observed as fellows :- "11. As discussed above, the order of the Court below is set aside and the case is remanded for trial in the light of my observations made above. The Court, is, however, directed to give an opportunity to the prosecution to examine the said two injured persons (Jadu and Raibali) and thereafter it will examine the accused persons under Sec.342. Criminal P.C. and alter giving a chance to the defence to adduce evidence, if any, and after hearing the arguments of the parties the Court below shall pronounce the judgement on merit in accordance with law. 12. In the result, the order of conviction and sentence passed by the Court below are hereby set aside. The case is remanded with the directions indicated above and the accused appellants are directed to appear before the Court below when noticed by the trial Court. 12. In the result, the order of conviction and sentence passed by the Court below are hereby set aside. The case is remanded with the directions indicated above and the accused appellants are directed to appear before the Court below when noticed by the trial Court. The appeal is accordingly disposed of." This type of order is not permissible under the Code, because once a retrial is ordered by the Appellate Court, the evidence already on record is deemed to be Swiped off from the records. Moreover, this power of retrial should be exercised only in exceptional cases where the Court of appeal finds that the Court trying the case had no jurisdiction or the trial had been vitiated due to some serious illegality. This power cannot be exercised for allowing the prosecution to fill up the lacuna in the prosecution case. As was observed in Ukha Kohle V/s. The State of Maharashtra, AIR 1963 SC 1531 at P. 1537: "11. An order for retrial of a criminal case is made in exceptional cases, and not unless the appellate Court is satisfied that the Court trying the proceeding had no jurisdiction to try it or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the prosecutor or an accused was for reasons over which he had no control, prevented from leading or tendering evidence material to the charge, and in the interests of justice the appellate Court deems it appropriate, having regard to the circumstances of the case, that the accused should be put on his trial again. An order of retrial wipes out from the record the earlier proceeding, and exposes the person accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons." In my opinion, the impugned order cannot be construed to be an order for retrial and even if it is to be so construed, no sufficient reason has been given by the learned Additional Sessions Judge for ordering a retrial. 7. Under Sec. 428 of the Code, if the Court of appeal thinks that additional evidence is necessary to be taken, it may either take such evidence itself or direct it to be taken by the Magistrate concerned. The relevant portion of Sec. 428 of the Code reads as under : "428 (1)In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons, and may either take such evidence itself, or direct it to be taken by a Magistrate, or, when the Appellate Court is a High Court, by a Court of Session or a Magistrate. (2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal." Under this section, if the Court of appeal directs the trial Court to take additional evidence, then the trial Court has to record the evidence as directed by the Appellate Court and then to send such evidence to the Appellate Court which shall proceed to dispose of the appeal taking into consideration such additional evidence. From the order of the learned Additional Sessions Judge it does not appear that he has exercised his powers under Sec. 428, because in that case there was no Question of setting aside the judgement passed by the trial Court and directing it to deliver a fresh judgement after examining the witnesses and the accused and after hearing arguments on merits. In my opinion, the learned Additional Sessions Judge has adopted a hybrid procedure which is foreign to the scheme of the Code. I am supported in my view by a Bench decision of this Court in Gajanand Thakur V/s. Emperor. AIR 1916 Pat 219 : (17 Cri LJ 332) where it was held that a direction by the AppellateCourt to record a fresh decision on the evidence already on the record, along with the evidence to be taken, was wholly illegal. In circumstances similar to the present case it was held by this Court Krishna Prasad Sinha V/s. Emperor, AIR 1936 Pat 438 : (37 Cri LJ 906) that whenever a Court of appeal is of the opinion that certain important evidence had not been brought on the records the case by the trial Court, only two courses are open to it - either to keep the appeal pending and order taking of additional evidence by the trial Court, or to set aside the judgement and order retrial. It was further observed that when a retrial is ordered it would be de novo trial and that the evidence which had been recorded earlier by the trial Court in the trial is wiped off from the records of the case. 8 For the reasons given above. I am of the opinion that the order of the learned Additional Sessions Judge is bad in law and has to be set aside. 9. In the result, the revision application is allowed, the order of remand passed by the learned Additional Session Judge is set aside and Criminal Appeal No. 31 of 1969 is restored to its file, and the learned Additional Sessions Judge will dispose of the appeal in accordance with law in the light of the observations made above. 10. The appeal appears to be an old one and the learned Sessions Judge will see that it is disposed of at an early date.