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2016 DIGILAW 35 (RAJ)

Rajesh Kumar @ Raju v. State of Rajasthan

2016-01-06

SANDEEP MEHTA

body2016
JUDGMENT Sandeep Mehta, J. By way of this revision, the petitioner has approached this Court being aggrieved of the judgment dated 4.10.2013 passed by the learned Additional Sessions Judge, Jaitaran, District Pali in Criminal Appeal No.15/2010 whereby, the appellate court, while deciding the petitioner's appeal against conviction, set aside the judgment dated 18.10.2010 passed by learned Judicial Magistrate, Bar, District Pali Criminal Regular Case No.10/1999 convicting and sentencing the petitioner and the respondent no.2 Shri Mahendra Kumar for the offence under Section 19/54 of the Rajasthan Excise Act and while remanding the matter, directed the trial Court to summon and examine a few more witnesses and then to decide the case afresh. 2. Learned counsel for the petitioner, relying on the provisions of Section 386(b)(i) Cr.P.C. urged that the appellate Court does not have jurisdiction make partial remand of a case while considering an appeal arising from a judgment of conviction. He submits that if at all the appellate Court was of the view that the trial was vitiated on count of some irregularity or otherwise, it could have set aside the judgment passed by the trial Court in totality and could have directed a re-trial but as per him, a direction to examine a few witnesses and then to pass a fresh order after hearing the parties, could not have been given by the appellate Court in view of the clear language of Section 386 (b)(i) Cr.P.C. He thus, submits that the judgment under challenge deserves to be quashed and set aside. However, at the same time, he candidly concedes that the appellate Court could have exercised the powers under Section 391 Cr.P.C. to examine more witnesses at the appellate stage if it was felt necessary to exercise that power. 3. Learned Public Prosecutor vehemently opposes the submissions advanced by the learned counsel for the petitioner. 4-5. I have heard the arguments advanced by the learned counsel for the parties and have gone through the judgment under challenge.Section 386 Cr.P.C. reads as under :- "386. Power of the Appellate Court. 3. Learned Public Prosecutor vehemently opposes the submissions advanced by the learned counsel for the petitioner. 4-5. I have heard the arguments advanced by the learned counsel for the parties and have gone through the judgment under challenge.Section 386 Cr.P.C. reads as 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) in an appeal from an order or 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 an appeal 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; (c) in an appeal for enhancement of sentence- (i) reverse the finding and sentence and acquit or discharge the accused or order him to be re- tried 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." 6. As per the clear language of Section 386(b)(i) Cr.P.C., while considering an appeal from conviction, the appellate Court can reverse the finding and sentence passed by the trial Court and acquit or discharge the accused "or order him to be retried from the Court of a competent jurisdiction". An order of retrial would entail a full fledged denovo trial of the accused. The appellate Court could not have remanded the matter partially with a simple direction to examine a few witnesses and then to pass a fresh order. If at all the appellate Court was of the view that few of the witnesses whose testimony was essential for a fair and just decision of the case should have been examined at the trial, then the appellate Court was required to exercise the powers under Section 391 Cr.P.C. for recording additional evidence and then should have decided the appeal as per law. 7. As an upshot of the above discussion, the instant revision petition deserves to be and is hereby allowed. The impugned judgment dated 4.10.2013 passed by the learned Additional Sessions Judge, Jaitaran, District Pali in Criminal Appeal No.15/2010 is quashed and set aside. The matter is remanded back to the appellate Court for fresh decision of the appeal. The appellate court is directed to reconsider the matter and after keeping in view the fact that the trial extended to a period of more than 12 years, it shall reexamine as to whether or not the testimony of the witnesses who were directed to be examined while passing the judgment dated 4.10.2013 is essential for the just decision of the case and to pass a fresh order in the matter as per law. 8. The Appeal No.15/2010 shall be restored to its original number and then decided in light of the above directions after hearing the parties. Stay petition also stands disposed of.