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2011 DIGILAW 1575 (RAJ)

Madanlal v. State of Rajasthan

2011-08-03

SANDEEP MEHTA

body2011
JUDGMENT 1. - The present revision has been filed against the judgment dated 23.5.2000 passed by Additional Sessions Judge, Pali, whereby the learned Appellate Judge has remanded the matter back to the trial Judge to record further evidence and then to pass judgment afresh. 2. Counsel for the petitioner has submitted that in this case the petitioner had filed the appeal challenging his conviction and while exercising powers under Section 386 Cr.P.C., the learned appellate Court had no jurisdiction to pass any order of remand. He could either accept the appeal filed by the accused or reject the same. He has further submitted that looking to the time lapsed in the trial and appeal of the case, the direction for re-trial was absolutely unjustified. He has also submitted that the prosecution has not produced any evidence to prove the guilt of the appellant at the trial and there was no application filed by the prosecution before the appellate Judge under Section 391, Cr.P.C. for calling additional evidence at appellate stage. As such, the direction of the appellate Judge without there being any application of the prosecution to this effect was absolutely unjustified. 3. Learned counsel for the petitioner has relied upon a judgment of the Andhra Pradesh High Court reported in 2011 Cri.L.J. 397, M/s. Maruthi College of Engineering & Technology, Hyderabad v. State of Andhra Pradesh , wherein the Hon'ble Andhra Pradesh High Court while considering the provisions of Section 386 Cr.P.C. has held that order of remand cannot be passed in an appeal filed by an accused. Without going into the correctness of the view of Andhra Pradesh High Court, this Court feels that the remand made in this case at the appellate stage is not justified for the reason that the original incident is of 1991 and the appeal came to be decided in the year 2000. Now, nearly 20 years have passed since the case against the petitioner was instituted. 4. On the perusal of the judgment passed by the appellate Judge, it appears that the appellate Judge has exceeded his jurisdiction whilst directing a retrial by remanding the matter to the trial Court. Now, nearly 20 years have passed since the case against the petitioner was instituted. 4. On the perusal of the judgment passed by the appellate Judge, it appears that the appellate Judge has exceeded his jurisdiction whilst directing a retrial by remanding the matter to the trial Court. If the prosecution has chosen not to record statements of the witnesses or there was any difficulty with the prosecution in production of the witnesses, then prosecution could have filed an application before the trial Judge under Section 311 Cr.P.C. Not only this, such an application even could have been moved in the appeal under Section 391 Cr.P.C. There was no such application before the learned appellate Judge. The Hon'ble Apex Court in the case of K.V. Krishnamurthy Iyer and Ors. v. The State of Madras, AIR 1954 SC 406 has held that a remand for the purpose of recording evidence after a great delay, causes prejudice to the parties. The Hon'ble Court noted: "The Public Prosecutor had conceded that it was impossible to try the accused persons on those unintelligible and impossible charges. It would be placing a premium on the inefficiency of the prosecution by ordering a retrial in such circumstances which is bound to result in prejudice to the appellants and which may even lead to miscarriage of justice. During the two and a half years of the trial the accused must have exhausted all their resources of defending themselves land when the High Court made a strong recommendation to Government to appoint a Director of Prosecutions for the case on a salary of 7 4,000 and also transferred the case to its own records, it ignored altogether the prejudice that such a procedure was sure to cause to the accused persons. The procedure adopted by the High Court tends to divert the due and orderly administration of law into a new course and is likely to serve as an unwholesome precedent." The Hon'ble Apex Court observed : "We are fully alive to the fact that owing to the inefficient manner in which the prosecution was handled by the lawyers appearing for the Government and by the Magistrates before whom the case was tried, the unfortunate result may be that persons who may have committed serious crimes might escape but if during all these years the accused have not been given the charges which they could reasonably follow and meet, such a result is unavoidable. We consider that further trial of these accused will not in any way advance the course of justice." 5. In this view of the matter, while allowing this petition, the order dated 23.5.2000 passed by Additional Sessions Judge, Pali in Criminal Appeal No. 66/1999 (34/1999) is set aside and the learned appellate Judge is directed to decide the appeal filed by the petitioner on merit. 6. Record of the case may be remitted back.Petition allowed. *******