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2009 DIGILAW 44 (KER)

Gopakumar v. State of Kerala

2009-01-15

M.SASIDHARAN NAMBIAR

body2009
Judgment : Can the Appellate Court in an appeal filed by an accused against the conviction for one offence, after setting aside the conviction and direct retrial of the accused for another offence for which there was no charge ? This is the question to be settled in this revision. 1. 2. Facts arenot complicated. Revision petitioner was tried and convicted for the offence under S.186 of Indian Penal Code on the allegation that in execution of the order of arrest of the revision petitioner in E.P.802 of 1998 in O.S.1252 of 1997 of Munsiff Court, Thrissur, PW1, Thressia, the Ameen of District Court, who was authorised to execute the warrant, arrested revision petitioner from his house. While he was being taken to Munsiff Court, Thrissur in an autorickshaw and the autorickshaw was stopped at the traffic signal, revision petitioner jumped out of the lawful custody of the Ameen and thus obstructed the Ameen from discharging her duty as a public servant and thereby committed the offence under S.186 of Indian Penal Code. Revision petitioner pleaded not guilty. He was found guilty, convicted and sentenced to simple imprisonment for three months and a fine of Rs.500/- by Chief Judicial Magistrate, Thrissur. The conviction was challenged before Additional Sessions Court, Thrissur in Crl. Appeal 56 of 2007. Learned Additional Sessions Judge on the evidence found that the offence committed is not under S.186 of Indian Penal Code, and instead the offence could only be under S.225B of Indian Penal Code, as it is case of escape from custody of the Ameen. Finding that there was no charge for the offence and the charge framed was not proper, conviction was set aside and remanded the case to the Court of Chief Judicial Magistrate for retrial after framing proper charge. The order of remand is challenged in the revision petition filed under Ss.397 and 401 of Code of Criminal Procedure. 2. 3. Learned counsel appearing for revision petitioner and the learned Public Prosecutor were heard. 4. The order of remand is challenged in the revision petition filed under Ss.397 and 401 of Code of Criminal Procedure. 2. 3. Learned counsel appearing for revision petitioner and the learned Public Prosecutor were heard. 4. Learned counsel argued that revision petitioner was charged for the offence under S.186 of Indian Penal code which provides for a maximum sentence of imprisonment for three months or fine which may extend to Rs.1000/- or both and in an appeal filed against the conviction for an offence under S.186 of Indian Penal Code, learned Additional Sessions Judge directed re-trial of the revision petitioner for an offence under S.225B which provides for a sentence of imprisonment which may extend to six months or fine or both and under S.386(b) of the Code of Criminal Procedure in an appeal from conviction. Appellate Court is not entitled to direct re-trial for an offence for which there was no charge or trial and therefore the order of remand is unsustainable. Learned counsel pointed out the scope of an appeal against an order of acquittal as provided under cl.(a) and an appeal against conviction under cl.(b) of S.386 of the Code and argued that this distinction was omitted to be taken note of by the learned Additional Sessions Judge. Relying on the decision of a learned Single Judge of this Court in State of Kerala v. Achutha Panicker (1975 KLT 703) and Division Bench decision in Lakshmanan Sundaram v. State of Kerala (1989 (1) KLT 428) it was argued that a direction for retrial of the case in exercise of the power under S.386(b) of the Code could only be a re-trial of the offence for which the revision petitioner was charged and convicted and not for an offence for which he was acquitted or for an offence for which there was no charge at all. The argument is that the trial begins after framing of a charge and so re-trial could only be on the charge already framed or altered and not for a new charge as has been done by the learned Sessions Judge. Relying on the decision of the Apex Court in State of Andhra Pradesh v. Thadi Narayanan (AIR 1962 SC 240) it was argued that the retrial provided under cl.(b) of S.386 could only be on the charge which was framed earlier and not on a fresh charge. Relying on the decision of the Apex Court in State of Andhra Pradesh v. Thadi Narayanan (AIR 1962 SC 240) it was argued that the retrial provided under cl.(b) of S.386 could only be on the charge which was framed earlier and not on a fresh charge. Relying on the decision of the Apex Court in Kant/la/ Chandulal Mehta v. State of Maharashtra And Anr. (AIR 1970 SC 359) it was argued that the power provided to the Appellate Court to alter or amend a charge is subject to the provision that the accused is not to face a charge for a new offence or is not prejudiced and when revision petitioner was charged, tried and convicted for an offence under S.186 of the Indian Penal Code, which provides for a maximum sentence of simple imprisonment for three months, there cannot be a remand for re-trial for an offence under S.225B of Indian Penal Code, which provides for sentence of imprisonment upto six months. Learned counsel also argued that when revision petitioner was convicted only for an offence, providing a sentence of simple imprisonment for three months and if the re-trial directed by the Appellate Court is upheld, he has to face trial for an offence which provide for an enhanced sentence and it is prejudicial to the interest of the revision petitioner and on that ground also the order of remand is bad. Learned counsel further argued that there is no evidence to prove that PW1, the Ameen, was authorised by the Munsiff or the Junior Superintendent of the Court to execute the arrest warrant and therefore if a re-trial is allowed, it would enable the prosecution to fill up the lacuna and it will definitely prejudice the accused and hence on that ground also the order of remand is illegal. 3. 5. S.386of Code of Criminal Procedure provides the powers of the Appellate Court. But the exercise of power by the Appellate Court, in an appeal from an order of acquittal is different from an appeal from a conviction. While the former is wider, the latter is restricted. 4. 6. Cl. (a) and cl. 3. 5. S.386of Code of Criminal Procedure provides the powers of the Appellate Court. But the exercise of power by the Appellate Court, in an appeal from an order of acquittal is different from an appeal from a conviction. While the former is wider, the latter is restricted. 4. 6. Cl. (a) and cl. (b) of S.386 read: "(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial as the case may be, or find him guilty and pass sentence on him according to law; .(b) in anappeal 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 .(ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same". Apex Court in Narayanans case (supra) had considered the limited power of the Appellate Court in an appeal against conviction. When the accused is tried for several offences but was convicted only for some of the offences and an appeal is filed by the accused challenging the conviction, the Appellate Court in the appeal cannot direct retrial of the accused for the offence for which he stood acquitted. The re-trial could, if necessary, be only for the offence for which he was convicted and not for the offence for which he stood acquitted. Construing S.423(1)(b) of 1898 Code which is corresponding to S.386(b) of 1973 Code, their Lordships held: "(7). S.423(1)(b)(1) in terms deals with an appeal from a conviction, and it empowers the Appellate Court to reverse the finding and sentence and acquit or discharge the accused or order a retrial by a Court of competent jurisdiction subordinate to such Appellate Court or committal for trial. In the context it is obvious that "the finding" must mean the finding of guilt. The words "the finding and sentence" are co-related. They indicate that the finding in question is the cause and the sentence is the consequence; and so what the Appellate Court is empowered to reverse is the finding of guilt and consequently the order as to sentence. The words "the finding and sentence" are co-related. They indicate that the finding in question is the cause and the sentence is the consequence; and so what the Appellate Court is empowered to reverse is the finding of guilt and consequently the order as to sentence. There is no difficulty in holding that S.423 (1)(b)(1) postulates the presence of an order of sentence against the accused and it is in that context that it empowers the Appellate Court to reverse the findings of guilt and sentence and then to pass any one of the appropriate orders therein specified. In our opinion S.423 (1)(b)(1) is, therefore, clearly confined to cases of appeals preferred against orders of conviction and sentence, and the powers exercisable under it are therefore conditioned by the said consideration. It is impossible to accede to the argument that the powers conferred by this clause can be exercised for the purpose of reversing an order of acquittal passed in favour of a party in respect of an offence charged in dealing with an appeal preferred by him against the order of conviction in respect of another offence charged and found proved." In an appeal against an order of acquittal the Appellate Court can reverse such order and direct that further inquiry be made or that the accused be re-tried or committed for trial as the case may be or find him guilty and pass sentence on him. But in an appeal from conviction the Appellate Court can only reverse the findings 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. That re-trial is not the re-trial provided under cl.(a) but could only be a re-trial for the offence for which the accused stood convicted, which was challenged in the appeal. Even if an accused is not charged for an offence and therefore there is no order of acquittal of that offence, in an appeal filed by the accused against the conviction, exercising the power under cl.(b) of S.386, Appellate Court cannot direct re-trial of the accused for that offence for which he was not tried or convicted. That is possible only in an appeal against an order of acquittal or by the Revisional Court exercising revisional powers under Ss.397 or 401 of Code of Criminal Procedure. That is possible only in an appeal against an order of acquittal or by the Revisional Court exercising revisional powers under Ss.397 or 401 of Code of Criminal Procedure. Apex Court in Kantilals case (supra) had occasion to consider an order for alteration and amendment of charge and a direction for trial for the altered/amended charge. Considering the scope of such alteration/amendment and fresh trial, their Lordships held: "In our view the Criminal Procedure Code gives ample power to the Courts to alter or amend a charge whether by the Trial Court or by the Appellate Court provided that the accused has not to face a charge for a new offence or is not prejudiced either by keeping him in the dark about that charge or in not giving a full opportunity of meeting it and putting forward any defence open to him on the charge finally preferred against him" In an appeal filed by the accused against conviction, Appellate Court is not competent to direct retrial of the accused either for an offence for which he was tried and acquitted or for an offence for which he was not tried or if the re-trial would prejudice the accused. 7. When the revision petitioner was tried and convicted only for an offence under S.186 of Code of Criminal Procedure, which provides for a maximum sentence of simple imprisonment for three months, in an appeal filed by him against the conviction, he cannot be directed to be tried for an offence which provides for a sentence of imprisonment for six months. Therefore the direction for retrial for the offence under S.225B of Indian Penal Code is illegal and is to be set aside. As the learned Sessions Judge had already found that revision petitioner cannot be convicted under S.186 of Code of Criminal Procedure, the only option available to the Sessions Judge was to set aside the conviction and acquit the revision petitioner. Hence the revision is allowed. Order of remand passed by the learned Sessions Judge in Crl. Appeal 56 of 2007 is set aside. As the learned Sessions Judge found that revision petitioner has not committed the offence under S.186 of Indian Penal Code for which he was charged, he is acquitted. Bail bond executed by him stands cancelled.