Research › Search › Judgment

Jharkhand High Court · body

2005 DIGILAW 96 (JHR)

Vinay Kumar Mishra v. State Of Jharkhand

2005-02-08

AMARESHWAR SAHAY

body2005
ORDER Amareshwar Sahay, J. 1. Heard the parties. 2. The prayer of the petitioners in this application is for setting aside the order dated 08.04.2003, whereby the Sub-Divisional Judicial Magistrate, Jamshedpur, rejected the petition under Section 239. Cr PC filed by the petitioners for their discharge. 3. Further prayer has been made to issue direction to the Court below to proceed in the light of the order and direction dated 04.01.2000 of this Court in Cr. Rev. No. 180 of 1996 (R), whereby this Court while allowing the Revision Application against the judgment of acquittal remanded the matter back for retrial, according to law and to decide the same after hearing both the sides. 4. A First Information Report being Mango P.S. Case No. 002 of 1992 was registered under Sections 419, 420 and 498-A of the Indian Penal Code, as well as under Sections 3/4 of the Dowry Prohibition Act against the petitioners. The aforesaid case was tried and by judgment dated 09.07.1996 (Annexure-2), the learned . Sub-Divisional Judicial Magistrate acquitted the accused persons i.e. the petitioners herein from the charges, after holding that the prosecution failed to prove its case beyond the shadow of all reasonable doubts. 5. The informant-Opposite Party No. 2, Taruna Mishra challenged the said judgment of acquittal in Cr. Rev. No. 180 of 1996(R) before this Court and by judgment dated 04.08.2000 (Annexure 3) this Court allowed the Revision Application and set aside the judgment of acquittal and remitted the matter back to the Court below for re-trial according to law. 6. After the remand, the accused-petitioners appeared before the Trial Court and filed a petition under Section 239 of the Cr PC for their discharge, which has been rejected by the learned Sub-Divisional Judicial Magistrate, Jamshedpur by the impugned order dated 08.04.2003. 7. From perusal of the impugned order, it appears that the learned Sub- Divisional Judicial Magistrate has rejected the prayer of the petitioners on the ground that the High Court in its judgment in Revision held that the Trial Court did not consider and assess the entire evidence on record in proper way and thereby remitted the matter back to the Trial Court for retrial. 8. 8. It was further held by the learned Sub-Divisional Judicial Magistrate, Jamshedpur that the re-trial as ordered by the High Court meant the re-trial i.e. the stage from which the illegality has been committed and not from the stage, the trial had started, therefore, at the stage the petitioners cannot be discharged. 9. Learned counsel appearing for the petitioners Mr. P.P.N. Roy relying on a decision in the case of Krishna Dhan Mandal and Ors. v. Queen Empress, reported in, ILR XII Calcutta 377, has submitted that the findings of the learned Magistrate and rejection of the petition of the petitioner under Section 239, Cr PC is against the judgment of the High Court, wherein, there was an order for re-trial and the re-trial would mean the re-trial of the whole case from the stage of the charge. 10. On the other hand, Mr. A.K. Chaturvedi, learned counsel appearing for the opposite party No. 2 in support of the impugned order has submitted that since the High Court in the Revision against acquittal held that the Trial Court did not consider the evidence on record properly and, therefore, the matter was remanded back to the Trial Court and, as such, the Trial Court was only to assess and appreciate the evidence on record and then had to decide the case and, therefore, the learned Sub-Divisional Judicial Magistrate was absolutely right in rejecting the prayer of the accused for their discharge. 11. In order to appreciate the rival contentions of the parties, it is relevant to quote the concluding part of the judgment of this Court in the Criminal Revision. Paragraph 9 of the judgment of this Court in quoted hereinbelow :- "It is true that this Court does not ordinarily interfere with the judgment of acquittal and interference with the judgment of acquittal is limited to the exceptional cases but in the instant case, apparently the order of acquittal is suffering from glaring illegality causing mis-carriage of Justice. The accused persons including the main accused Binay Kumar Mishra were also charged under Section 419/420 of the Indian Penal Code and there is also allegation that Binay Kumar Mishra had received a sum of Rs. 1,00,000/- by cheque on account of performing marriage with Taruna Mishra by duping the victim girl and her parents about first marriage. The accused persons including the main accused Binay Kumar Mishra were also charged under Section 419/420 of the Indian Penal Code and there is also allegation that Binay Kumar Mishra had received a sum of Rs. 1,00,000/- by cheque on account of performing marriage with Taruna Mishra by duping the victim girl and her parents about first marriage. The learned Magistrate has not considered and assessed the entire evidence on record in proper way and has committed gross error in acquitting the accused persons without valid ground. Thus, in my view, this is a fit case for remitting back to the Court concerned for re-trial according to law. In the result. I find merit in the revision application which is accordingly allowed. Let this case be remitted back to the Court concerned for re-trial according to law and decided the same after hearing both-sides. However, the Trial Court will decide the case on its own merit according to law without being influenced by any observation made in this order." 12. From the afore-quoted paragraph of the judgment of this Court, it is clear that this Court held that the learned Magistrate has not considered and assessed the entire evidence on record in proper way and has committed gross error in acquitting accused persons without valid ground and, therefore, remanded the matter back to the Court below. This certainly means that the remand was only for the purposes of proper assessment of the entire evidence, which were already on record and then to pass a fresh judgment. It does not mean to re-try the case from the stage of its inception or from the stage of charge, as has been submitted by the learned counsel appearing for the petitioners. 13. The judgment of the Calcutta High Court in the case of Krishna Dhan Mandal (supra) is not applicable in the facts and circumstances of the present case because from the facts of the said case, it appears that, in that case those accused persons were charged with having been jointly concerned in a riot, in the course of which a man was killed in execution of the common object of the unlawful assembly, which was to dispossess the deceased mans continents from certain land and to carry away the paddy thereon by force. All the accused were tried for offence under Sections 302, 325 read with Section 149, IPC and they were acquitted from the charge of murder but were convicted for grievous hurt. The convicted accused filed appeal before the High Court and then the High Court set aside the conviction and ordered for re-trial and after the re-trial, the accused were convicted under Section 304 read with Section 149, IPC and against the said conviction, the appeal arose before the Calcutta High Court and in that context, it was held that where the Appellate Court reverses the verdict of a jury and orders retrial, unless it has limited the scope of the re-trial, such re-trial must be taken to be of the charges already reframed and in absence of any express limitation, must be taken to mean a re-trial of the whole case. 14. But in the present case as is evident from the judgment of the High Court passed in criminal revision against the judgment of acquittal that only because the Trial Court did not consider the entire evidence on record in proper manner and, therefore, the matter was remitted back to the Trial Court, therefore, it does not and cannot mean that the Trial Court was required to try the accused from its inception. 15. In view of my findings above, I hold that the learned Sub-Divisional Judicial Magistrate, Jamshedpur has rightly rejected the petition under Section 239, Cr PC filed by the petitioners. Thus, finding no merit, this revision application is dismissed.