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2006 DIGILAW 1811 (DEL)

ARUN SRIVASTAVA ALIAS ABAHI SRIVASTAVA v. STATE

2006-10-09

R.N.SHARMA, V.K.MALIK

body2006
BADAR DURREZ AHMED, J. (ORAL), J. ( 1 ) THIS revision petition is filed against the impugned judgment and order dated 22/7/2006 passed by the learned Additional Sessions Judge whereby the petitioner's appeal against the order of the learned Metropolitan Magistrate dated 22/11/2004 on conviction and the order dated 27/11/2004 on sentence, was dismissed. The learned Metropolitan Magistrate had convicted the petitioner under Section 420/471 IPC and sentenced him to undergo Rigorous Imprisonment for one year and also to pay a fine of Rs. 2,000. 00 and in default to further undergo simple Imprisonment for one month in respect of the offences under Section 471 ipc. The petitioner was further sentenced to undergo Rigorous Imprisonment for one year under Section 420 IPC. The sentences were directed to run concurrently. ( 2 ) AS mentioned in the impugned order, the prosecution case is that on 27/1/1994 at about 11. 50 am at the reservation counter, IRCA Building, C. F. Road, the petitioner is said to have presented a forged card pass to one B. S. Srivastava for first class travel and also got the ticket reserved and on the basis thereof reserved a ticket from Delhi to Allahabad without paying any fare. As per the prosecution case, the reservation clerk, Virender Kumar got suspicious and reported the matter to Inspector H. C. Johri. Thereafter, the petitioner is said to have been apprehended, a case was registered and investigation ensued. The charge-sheet was filed and thereafter charges were framed under Section 380/420/468/471 IPC. The petitioner pleaded not guilty and faced trial. About 7 witnesses were examined and certain documents were exhibited. Thereafter, as indicated above, the learned Metropolitan Magistrate convicted the petitioner and sentenced him. ( 3 ) IN appeal, the petitioner had specifically taken the following grounds as would appear from paragraph 4 of the impugned order:-"4. During the course of arguments Ld. counsel on behalf of accused/appellant has stated that the impugned order of conviction and sentence is against law and facts on record. The accused is Govt. employee and entitled to concession in the Railway under IInd class pass as he is Sr. clerk in railway. The prosecution has utterly failed to link Ex. P1 and Ex. P2 with the accused, rather the prosecution evidence supports the defence version of the accused in this case. The accused is Govt. employee and entitled to concession in the Railway under IInd class pass as he is Sr. clerk in railway. The prosecution has utterly failed to link Ex. P1 and Ex. P2 with the accused, rather the prosecution evidence supports the defence version of the accused in this case. The prosecution has failed to seal the documents in question in this case, causing serious doubts about eh truthfulness of the prosecution case. He has further stated that report of expert Ex. PW6/h and J furnished by handwriting export cannot be read in evidence. On the other hand io of this case has not been examined. There is nothing on record to show that a specimen signatures and writings sent to export for comparison were taken from the accused by whom, in whose presence or from where, when by what authority, those signatures were obtained from accused or under what circumstances and when it is a mystery regarding obtaining of specimen signatures that the opinion expressed by and handwriting expert is valueless. No independent public witness has been cited or examined in this case although available, causing serious doubt about the truthfulness of the case. The prosecution has utterly failed to prove its case beyond reasonable doubt but the Ld. trial court failed to appreciate this legal aspect causing miscarriage of justice to the appellant. He has prayed that the impugned order passed by the Ld. MM may kindly be set aside and accused/appellant be acquitted in the interest of justice. " ( 4 ) THE learned counsel for the petitioner challenged the impugned order inasmuch as the grounds raised by the petitioner have not been dealt with at all by the learned Additional Sessions Judge. ( 5 ) THE learned counsel for the State supported the impugned order on the ground that the same has been passed after a detailed examination of the material on record as well as the order passed by the learned Metropolitan magistrate. ( 6 ) HAVING considered the arguments advanced by the learned counsel for the parties, I am of the view that the specific grounds taken by the petitioner in the appeal preferred by him, have not been specifically dealt with by the learned Additional Sessions Judge. This would apparent from the following passage of the impugned order:-"on perusal of the judgment, I have found that Ld. This would apparent from the following passage of the impugned order:-"on perusal of the judgment, I have found that Ld. MM has discussed each and every witnesses testimony in his order at too length and he has committed no irregularity in discussing the evidence which was available on record. So, I am of the opinion that Ld. MM has discussed each and every point throughly so, there is no need to discuss the same again and Ld. MM has reached on the conclusion as per Law and convicted the accused as per Law vide Judgment dt. 22/11/2004 thereby convicting the appellant u/s 420/471 IPC as well as order on sentence dt. 27/11/2004 In view of the above discussions I find no merit in this appeal and the same is hereby dismissed and order passed by the Ld. trial court is upheld. " ( 7 ) THIS indicates that the learned Additional Sessions Judge has merely dittoed what the learned Metropolitan Magistrate has done. In an appeal, the appellate Court is required to examine all the grounds of appeal and to discuss the same along with the evidence which is available on record. The Appellate court is required to come to an independent finding on the points raised in appeal by the appellant. If no findings are given and no opinion of the appellate Court is given on the points specifically raised, then this Court in revision would have no alternative but to set aside the said order and remand the matter to the Appellate Court for a consideration afresh for dealing with points raised by the appellant. For, if this is not done then the whole purpose of the appeal would be obviated. ( 8 ) ACCORDINGLY, I set aside the impugned order and direct the placing of the matter before the Appellate Court for consideration of the grounds of appeal specifically raised by the petitioner and to dispose of the same after hearing the counsel for the parties. ( 9 ) SINCE the petitioner was on bail at the appellate stage and now he is in custody, the petitioner is directed to be released on bail, for the duration of the appeal, on his furnishing a personal bond in the sum of Rs. 20,000. 00 with one surety of the like amount to the satisfaction of the trial court. This revision petition stands disposed of. Dasti.