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2006 DIGILAW 682 (MP)

Ashok Kumar v. State of Madhya Pradesh

2006-05-10

S.C.VYAS

body2006
Judgment ( 1. ) THIS is a criminal revision challenging the impugned judgment dated 18-8-2003, passed by VIIth Addl. Sessions Judge, Indore in Criminal Appeal No. 469 of 02, whereby the judgment and order of conviction dated 21-11-2002 passed by IInd Addl. Chief Judicial Magistrate, Indore in Criminal Case No. 18 of 02 has been set aside and remanded the case to the Trial Court with a direction to amend the charge and thereafter giving opportunity to both the sides, record the evidence of the witnesses, in necessary, and then decide the matter in accordance with law. ( 2. ) LEARNED Counsel for applicant submitted that applicant was convicted by the Trial Court for commission of offence under Section 7 (1) read with Section 16 (1) (a) (1) of Prevention of Food Adulteration Act and sentenced to undergo R. I. for six months with fine of Rs. 1000/ -. The aforesaid conviction was challenged by applicant and preferred an appeal. At the time of final arguments, the Public Prosecutor made a request to the Court to remand the matter to the Trial Court on the ground that the charge framed against the applicant was defective according to the allegation mentioned in the complaint and retrial of the case was necessary. ( 3. ) LEARNED Counsel for applicant argued that it was only an attempt to fill up the lacuna left by the prosecution during trial and by passing remand order an opportunity was afforded to the prosecution to fill up the lacuna. He has further submitted that no such order could have been passed without deciding the appeal on merits. He relied on the judgment passed by this Court in the matter of Kela Pardi v. State of M. P. 2003 (II) MPWN 77 . ( 4. ) LEARNED Dy. P. P. in rebuttal submitted that the case of prosecution before the Trial Court was with regard to adulteration of Chilli Powder, and that Chilli Powder was not stored for sale, but was stored for the purpose of proparing the food, therefore, the charge framed by Trial Court was defective as it was not described that Chilli Powder was stored for sale which found adulterated. When at the time of deciding the appeal, the Appellate Court found that the charge framed by Trial Court is defective and caused prejudice to the applicant and therefore, the learned Sessions Judge decided to remand the matter to the Trial Court with the direction to amend the charge and after giving full opportunity to both the sides and after recording evidence, decide the matter afresh in accordance with law. ( 5. ) THE Appellate Court has power to remand the matter for retrial under the provisions of Section 386 of Cr. PC, which reads as under: Section 386. Powers of the Appellate 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 Section 377 or Section 378, the accused, if he appears, the Appellate 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: (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried; by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial or: *** *** *** *** *** ( 6. ) THE grievance of the learned Counsel for applicant is that the Appellate Court could have decided the matter on merits, rather to remand the matter to the Trial Court for retrial. ( 7. ) I am afraid, this line of arguments advanced by learned Counsel appearing for applicant is not acceptable. Since the charge framed by Trial Court was defective and, therefore, the whole trial caused the prejudice to the applicant and such grievance was made before the Appellate Court by applicants Counsel himself. On perusal of the impugned judgment it clearly shows that the Counsel appeared for applicant had argued before the Appellate Court that Public Analyst should have been also examined by the Trial Court. These arguments were considered by the Appellate Court. ( 8. ) IN the matter of Kale Pardi (supra), the Appellate Court did not decide the same on merits. Instead, it only held that the sentence awarded in the case was not in accordance with law and remanded the same. These arguments were considered by the Appellate Court. ( 8. ) IN the matter of Kale Pardi (supra), the Appellate Court did not decide the same on merits. Instead, it only held that the sentence awarded in the case was not in accordance with law and remanded the same. The Appellate Court ought to have first decided the appeal on merits and only then if it was so necessary should have remanded the case of its decision on sentence. In the above case, the jail sentence was mandatory, instead the sentence of fine was imposed on the appellant. In revision the learned Single Judge found that when the sentence was not in accordance with law, therefore, it was the duty of the Appellate Court to decide the appeal on merits. Whereas, in the present case, the charge framed by Trial Court was defective and prejudice was caused to the applicant, therefore, it was necessary to remand the matter was remanded to the Trial Court for deciding it afresh after giving full opportunity to both the sides. ( 9. ) CONSIDERING the arguments advanced by learned Counsel for both the sides, I am of the considered opinion that Appellate Court has committed no error of law, illegality in remanding the matter to the Trial Court. ( 10. ) CONSEQUENTLY this revision fails and is hereby dismissed.