Research › Search › Judgment

Rajasthan High Court · body

2011 DIGILAW 1610 (RAJ)

Laxman Dass v. State of Rajasthan

2011-08-05

KAILASH CHANDRA JOSHI

body2011
JUDGMENT 1. - Accused Laxman Dass has filed this revision petition for quashing the judgment dated 28.11.1995 passed by the learned Special Judge, Scheduled Castes & Scheduled Tribes (Prevention of Atrocities Cases), Jodhpur passed in criminal appeal No.38/1995, by which the learned appellate court set aside the judgment dated 19.09.1995 passed by the Chief Judicial Magistrate, Jodhpur in criminal original cases No.36/1989 by which the present petitioner accused was convicted for the offence under section 7/16 of the Prevention of Good Adulteration Act (hereinafter referred to as 'the Act'). 2. The learned appellate court, while accepting the appeal of the petitioner, set aside the order of conviction passed by the Chief Judicial Magistrate and remanded the case back to the learned Chief Judicial Magistrate, Jodhpur to pass fresh order, after giving opportunity of examining the defence witnesses. 3. 2. The learned appellate court, while accepting the appeal of the petitioner, set aside the order of conviction passed by the Chief Judicial Magistrate and remanded the case back to the learned Chief Judicial Magistrate, Jodhpur to pass fresh order, after giving opportunity of examining the defence witnesses. 3. At the outset it would be proper to point out the powers of the appellate court under section 386 Cr.P.C. which reads as under: "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- (a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law: (b) in an appeal from a conviction - (i) reverse the finding 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, 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; (c) in an appeal for enhancement of sentence - (i) reverse the finding and sentence and acquit or discharge the accused or order sentence to be retried by a Court competent to try the offence, 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, so as to enhance or reduce the same; (d) in an appeal from any other order, alter or reverse such order ; (e) make any amendment or any consequential or incidental order that may be just or proper ; Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement ; Provided further that the appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal ." 4. Counsel for the petitioner contended that the order of the learned first appellate court suffers from illegality and irregularity on the ground that the appellate court has got no powers to remand the case back to the trial court, while reversing the finding as well as the sentence. Instead of remanding the case, the trial court ought t8o have sent the case back to the trial court for retrial. While relying upon the provisions of section 386 Cr.P.C. the learned counsel for the petitioner further contended that the order of the learned trial court remanding the case back to the trial court cannot be sustained. 5. Per contra, the learned Public Prosecutor left the matter to the discretion of the court. 6. As per clause (b) (i) of Section 386 Cr.P.C., the appellate court, in an appeal from conviction, has got powers to reverse the finding as well as the 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 . There is no power for the criminal appellate court to remand the case like civil appellate court, under Order 41 Rules 23 to 26 of the Code of Civil Procedure. The option available to the appellate court is only to order retrial of the case. 7. The learned first appellate court quashed the order of conviction only on the ground that no opportunity of defence was given to the accused petitioner, whereas the order of the learned trial court dated 01.09.1995 clearly speaks that both the witnesses Mangi Lal and Naresh have been examined by the prosecution and opportunity to cross-examine the above witnesses, was given to the accused appellant. 8. I have perused the record of the learned trial court. The statement of PW/1 Amardutt Harsh was recorded on 05.04.1994 and on the basis of the statement the charge under section 7/16 of the Act was read over to the accused on 16.12.1993 and he did not plead guilty and claimed to be tried. The counsel for the accused petitioner wanted to cross-examine Amardutt Harsh and the court further ordered to call the other witnesses also. The statement of PW/2 Mngilal was recorded on 08.03.1994 and further examination of PW/1 Amardutt Harsh was completed on 05.04.1994. The counsel for the accused petitioner wanted to cross-examine Amardutt Harsh and the court further ordered to call the other witnesses also. The statement of PW/2 Mngilal was recorded on 08.03.1994 and further examination of PW/1 Amardutt Harsh was completed on 05.04.1994. The statement of PW/3 Naresh Giri was recorded on 12.07.1994 and the learned trial court convicted the present accused petitioner which order was set aside by the appellate court vide order dated 25.01.1995 in pursuance of the order of the appellate court date 26.09.1994 the learned trial court summoned the witness Amardutt Harsh for further cross-examination and after that cross-examination the accused filed an application to summon the witnesses Mangi Lal and Naresh in defence which was rejected by the order of the learned trial court vide order dated 01.09.1995 for the reason that these two witnesses were examined by the prosecution and they have been declared hostile and ample opportunity to cross examine the witnesses was given to the accused. The learned appellate court, vide the impugned order, set aside the order of conviction and remanded the case back to the trial court. The remand order passed by the lower appellate court does not say anything about this fact that where in case of the appeal against the conviction filed by the accused, there is any power vested with the appellate court to remand the case back and further the first appellate court ordered that the compliance of the provisions of section 246 (6) Cr.P.C. has not been complied with. Therefore, he is remanding the case back. 9. It is admitted fact that the statement of both the witnesses PW/2Mangi Lal and PW/3 Naresh Giri were recorded in the presence of the accused and both these witnesses have been declared hostile by the prosecution and no cross-examination was made by the counsel for the accused and the learned first appellate court did not assign any reason that how the compliance of the provisions of section 246 (6) Cr.P.C. has not been made by the learned trial court . Thus, the grounds on which the lower appellate court remanded the case to the trial court is unsustainable in law . Thus, the grounds on which the lower appellate court remanded the case to the trial court is unsustainable in law . Firstly, from the facts of the case, it is clear that there was ample opportunity given to the accused to cross-examine both these witnesses , secondly, the powers to remand the case to the trial court, does not vest to the first appellate court while exercising the appellate powers on an appeal against conviction filed by the appellant. 10. In the result, this criminal revision petition is allowed, setting aside the order dated 28.11.1995 passed by the learned Special Judge Scheduled Castes & Scheduled Tribes (Prevention of Atrocities Cases), Jodhpur by which she remanded the case back to the trial court. The learned Special Judge, Scheduled Castes & Scheduled Tribes (Prevention of Atrocities Cases), Jodhpur is directed to dispose of the criminal appeal according to the evidence available on record as per law.Petition Allowed. *******