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Madhya Pradesh High Court · body

2012 DIGILAW 400 (MP)

Chakrapani Pandey v. State of M. P

2012-04-12

M.C.GARG

body2012
JUDGMENT : Petitionerby way of this revision assailed the order passed by the Additional SessionsJudge, Rewa , in Criminal Appeal No. 194/2010 whereby,while considering the appeal filed by the appellant in Criminal Case No.488/2010 wherein, they were convicted for the offence under Sections 379 and411 of IPC though other co-accused persons were acquitted, the case wasremanded back for retrial against the present petitioner vide impugned order. 2.The petitioner was asked to appear before the Trial Court to face the trialafresh. 3.The learned Counsel for the petitioner submits that such an order could nothave been passed by the Appellate Court inasmuch as, the impact of the order isthat the entire trial stands revived and the other persons who have beenacquitted may also face trial. Even though no appeal has been filed againstthem by the State against acquittal has referred to the judgment of the Hon'ble Supreme Court delivered in the case of State ofWest Bengal and another Vs. Laisal Haque and others, (1989) 3 SCC 166 . In the said casedealing with the similar situation the Hon'ble Supreme Court passed the following order : - "10.Lastly, we are constrained to observe that the High Court has not examined themerits of the case at all. If it had done so, it could not have come to theconclusion that there was any material defect or omission in the framing of thecharges or giving the particulars thereof or any failure of justice wasoccasioned thereby. It failed to appreciate that in an appeal by therespondents under Section 374 (2) of the Code, the order of acquittal passed bythe learned Additional Sessions Judge as against the 26 other accused could notbe interfered with. The High Court also failed to appreciate that there cannotbe a piecemeal trial. The retrial directed by the High Court must necessarilyrevise the prosecution and must result in a trial de novo against the 42accused. The 26 other accused acquitted by the learned Additional SessionsJudge were not imp leaded as parties to the appeals before the High Court. Inthe absence of an appeal preferred by the State Government against theiracquittal, the High Court could not under Section 386 (b) on an appeal by therespondents against their conviction alter the acquittal nor can there be asplitting up of the trial. See : State of Karnataka Vs. Narsa Reddy. 11.Accordingly, the appeals must succeed and are allowed. Inthe absence of an appeal preferred by the State Government against theiracquittal, the High Court could not under Section 386 (b) on an appeal by therespondents against their conviction alter the acquittal nor can there be asplitting up of the trial. See : State of Karnataka Vs. Narsa Reddy. 11.Accordingly, the appeals must succeed and are allowed. The judgment and orderpassed by the High Court are set aside and the appeals are remitted to the High Court for a decision afresh on merits after noticeto the parties." 4.In the aforesaid judgment there is also a reference to another judgment of the Hon'ble Supreme Court delivered in the case of State ofKarnataka Vs. Narsa Reddy, (1987) 4 SCC 170 , relevantparagraph of that judgment, which is also relevant for the disposal of thiscase is reproduce here as under :- "5.We have no manner of doubt that the direction made by the learned Single Judgepresumably exercising the inherent powers of the High Court under Section 482of the Code of Criminal Procedure was wholly unwarranted. It is somewhatstrange that the learned Single Judge should have made a direction at allrequiring the learned Sessions Judge to proceed with the trial as against therespondent and accused No. 2, Vaijinath merelybecause there was stay granted by the High Court in revision preferred by theco-accused Head Constable Govinda Rao and Police Constable John, accused Nos. 3 and 4 against the order passed by thelearned Sessions Judge, dated October 28,1985 rejecting the objection as to thevalidity of trial for want of sanction. If he felt that the grant of stay wouldprejudicially affect the respondent and accused No. 2, Vaijinath and subject them to a protracted trial, the proper course for the learnedSingle Judge was to have heard and disposed of the Criminal Revision No. 886 of1985 rather than make a direction of this kind, which would, in fact, result insplitting up of the trial, which is apt to cause miscarriage of justice,besides serious prejudice to the prosecution. From the nature of theprosecution case, it is quite apparent that the evidence to be led by theprosecution would be more or less common as it relates to the same occurrence.It could not be said that merely because the proceedings before the learnedSessions Judge were held up due to stay granted by the High Court in thatrevision, the learned Single Judge could have taken recourse to the inherentpowers of the High Court under Section 482 of the Code, or that it wasnecessary to do so either to prevent abuse of the process of Court or otherwiseto secure ends of justice. Any further delay in the trial could be prevented bytaking up the revision for hearing. 6.In the result, the appeal succeeds and is allowed. The order passed by the HighCourt is set aside and the High Court is directed to hear and dispose ofCriminal Revision No. 886 of 1985 as early as possible. In the meanwhile, theproceedings in Sessions Case No. 23 of 1984 before the learned Sessions Judgeshall remain stayed till the disposal of the revision.” 5.Taking into consideration of the aforesaid judgments of the Hon'ble Supreme Court the case is directed to be remanded back to the Appellate Courtwith a direction to decide the appeal on merits and the order of remanding thecase for retrial to the Court of Judicial Magistrate First Class is set aside. Petitioner to appear before the Sessions Judge on 15th May, 2012 . 6.Copy of this order along with the record be sentforthwith to the Sessions Court. The bail bond furnished by the petitionerbefore this Court shall remain in existence till the petitioner files freshbail bond before the Sessions Court to the satisfaction of that Court to facethe trial to appear before the Appellate Court till the bail is decided and toface the consequences thereupon. Petitionstands disposed of in terms of the aforesaid order.