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2014 DIGILAW 137 (CHH)

Dwarpal v. State of C. G.

2014-03-26

P.SAM KOSHY

body2014
ORDER P. Sam Koshy, J. 1. By way of instant Criminal Revision, the applicant has challenged the judgment dated 6.12.2003 passed, in Criminal Appeal No. 152/2003, by First Additional Sessions Judge, Raipur (hereinafter referred to as "the appellate Court")-, arising out of judgement of conviction and order of sentence dated 3.5.2003 passed, in Criminal Case No. 391/2000, by Judicial Magistrate First Class, Baloda Bazaar, Distt. Raipur (hereinafter referred to as "the trial Court"). Facts leading to the instant Criminal Revision is that complainant Devcharan Jaiswal was an Assistant Lineman with the erstwhile Madhya Pradesh Electricity Board. On 1.2.2000, when the said complainant Devcharan Jaiswal reached to village Gopalpur for connecting electric line to the house of applicant, which was earlier disconnected on account of non-payment of electricity bill, the applicant came out of his house and started abusing the complainant using filthy language and also assaulted the complainant causing injury to him. 1.1 Regarding the said incident, the complainant Devcharan Jaiswal had lodged a written report to the Police Station-Sarsiva, which, in turn, sent the complainant for medical examination. During investigation, statements of the witnesses were recorded and usual formalities were done. After completion of the investigation, offences punishable under Sections 186, 353, 294, 323 of IPC were registered against the accused applicant and, accordingly, charge-sheet was filed before the trial Court. 1.2 After completion of the trial, the trial Court, vide, its judgment of conviction and order of sentence dated 3.5.2003, found the applicant to be guilty of having committed the offences punishable under Sections 186, 353,323 of IPC and, on-convicting the applicant for the said offences, sentenced him to undergo R.I. for one month for offence under Section 186 of IPC, R.I. for six months and fine of Rs. 100/- and in default of payment of fine, to undergo additional R.I. for 15 days for offence under Section 353 of IPC and R.I. for 4 months and fine of Rs. 300/- and in default of payment of fine to undergo additional R.I. for 45 days for offence under Section 323 of IPC, with a direction to run all the sentences concurrently. 1.3 The said judgement of conviction and order of sentence dated 3.5.2003 was put to challenge by the applicant in an appeal before the appellate Court, which was registered as Criminal Appeal No. 152/2003. 1.3 The said judgement of conviction and order of sentence dated 3.5.2003 was put to challenge by the applicant in an appeal before the appellate Court, which was registered as Criminal Appeal No. 152/2003. 1.4 The appellate Court, after considering the evidences which have come on record, vide its judgment dated 6.12.2003, reached to the conclusion that the trial Court ought not have proceeded against applicant-accused for offences punishable under Sections 186, 353 and 323 of IPC separately, rather, the trial Court ought to have proceeded against applicant-accused only for the offence punishable under Section 332 of IPC. According to the appellate Court, the offence under Section 332 of IPC includes all the ingredients of the offences punishable under Sections 186, 353 and 323 of IPC. Thus, the appellate Court found the proceedings before the trial Court to be erroneous and, accordingly, remitted the matter back to the trial Court for re-trial, invoking the powers under Section 386 of CrPC. 2. It is this judgment dated 6.12.2003 passed by the appellate Court, which is under challenge in the instant Criminal Revision. 3. Heard learned counsel for the parties and perused the material available on record. 4. Learned counsel for the applicant submits that the judgement of the appellate Court is unsustainable for the reason that; firstly, it is contrary to taw, and, secondly, the appellate Court could not have remanded the matter back and forced the applicant to face trial once again. The counsel further submits that by remanding the matter back to the trial Court below for conducting the trial afresh, it amounts to holding re-trial. It is further submitted that the applicant could not have forced to face the trial for the same offence again and again and, as such, the impugned judgement is bad in law and deserves to be set aside/quashed. 5. Learned counsel for the applicant also submitted that the trial Court further committed an error of law inasmuch as the judgement of the appellate Court is not sustainable for the reason that the same is hit by the provisions of Section 300 CrPC. In support of his contentions, learned counsel for the applicant has relied upon the decisions of Hon'ble Supreme Court made in the cases of Ravinder Singh v. Sukhbir Singh and others : 2013(9) SCC 245 and Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao and another : 2011(2) SCC 703 . In support of his contentions, learned counsel for the applicant has relied upon the decisions of Hon'ble Supreme Court made in the cases of Ravinder Singh v. Sukhbir Singh and others : 2013(9) SCC 245 and Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao and another : 2011(2) SCC 703 . 6. Per contra, opposing the submissions made by the learned counsel for the applicant, the learned counsel for the State submits that in fact the revision petition itself is totally misconceived and is not tenable for the reason that all that the trial Court had done is that of exercising the powers conferred upon the appellate Court vested upon it under Section 386 of CrPC. Learned counsel for the State further submits that from the bare perusal of the judgement passed by the appellate Court, itself it is explicit that the appellate Court has reached to the conclusion that the trial Court had wrongly proceeded against the applicant separately for the offences under Sections 186,353, 323 of IPC, whereas, the proceedings ought to have been drawn under Section 332 of IPC which includes all the ingredients which are otherwise therein the offences under Sections 186, 353, 323 of IPC. The appellate Court, thus, was right in remitting the matter back to the trial Court for deciding the case of the accused applicant under the single offence of Section 332 of IPC which in fact is the most apt Section under which the accused person could have been prosecuted rather than initialing the proceedings under Section 186, 353, 323 of IPC separately. For these reasons, learned counsel for the State submits that the instant revision petition deserves to be rejected as there is very little scope of interference in the light of foregoing submissions. 7. Having heard the rival contentions put forth by the counsel appearing for either side, it would be trite at this juncture to refer to the powers conferred upon the appellate Court under Section 386 of CrPC and for ready reference the provisions of Section 386(b) is reproduced here under:-- "386. 7. Having heard the rival contentions put forth by the counsel appearing for either side, it would be trite at this juncture to refer to the powers conferred upon the appellate Court under Section 386 of CrPC and for ready reference the provisions of Section 386(b) is reproduced here under:-- "386. Power 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-- (a) (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; 8. Provisions of the above Section itself show that the power to remand has been vested with the appellate Court if it considers in an appeal. Thus, from the provision of sub-clause (i) of clause (b) of Section 386 of CrPC, in a given case the appellate Court can order the trial Court to retry a case and it is exactly what has been done by the appellate Court in the instant case by the impugned judgement. 9. As regards the submission of the learned counsel for the applicant that the impugned judgement passed by the appellate Court is hit by the provisions of Section 300 of CrPC, it is submitted that in the case in hand the provisions of Section 300 would not be attracted as the order which has been passed for retrial is by the appellate Court in the judgment passed by the trial Court and that it was a continuation of proceedings from the original Court to the appellate Court and, under such circumstances, the appellate Court has got all the powers as has been defined under Section 386 of CrPC. Whereas, the provisions of Section 300 of CrPC would come into play only after a judgment passed by the Court has attained its finality and at a later stage for the same set of facts for the same offence the accused persons are made to face another set of trial, then under the provisions of Section 300of CrPC, such retrial or afresh prosecution would not be permissible. For ready reference, the provisions of Section 300(1) of CrPC is reproduced hereunder :-- "300. Person once convicted or acquitted not to be tried for same offence.--(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of Section 221, or for which he might have been convicted under sub-section (2) thereof. (Emphasis to be supplied on "while such conviction or acquittal remains in force")." 10. That is not the case in the present given facts where, there was an order of conviction by the trial Court and the trial Court found the accused to be guilty of having committed the offence under the provisions of the Indian Penal Code. This judgment, of conviction was put to challenge in the appellate Court and the appellate Court has on due consideration of the evidence and the contentions put forth by the parties found that the trial Court has committed an error in not prosecuting the accused person under the particular provision of the Penal Code, rather, had been found guilty under the other Sections of the Indian Penal Code. Thus the appellate Court remitting the matter back to the trial Court ordered for retrial and which is well within the powers which are vested upon the appellate Court under the provisions of Section 386 of CrPC. 11. For the said reason alone, the two judgments referred to by the learned counsel for the applicant would not be applicable in the facts and the circumstances of the instant case. 11. For the said reason alone, the two judgments referred to by the learned counsel for the applicant would not be applicable in the facts and the circumstances of the instant case. All the cases cited by the learned counsel for the applicant are, where the proceedings had attained finality and subsequently the accused persons therein were being put to retrial, which is not the facts in the instant case. In the present case, it is the appellate Court which had remitted the matter. For the foregoing reasons, the Criminal Revision is dismissed being misconceived and devoid of merits. No order as to costs.