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2017 DIGILAW 1679 (RAJ)

SHIV KUMAR AGARWAL v. STATE OF RAJASTHAN

2017-07-28

PANKAJ BHANDARI

body2017
ORDER : Pankaj Bhandari, J. Complainant-petitioner has preferred two revisions and accused has preferred a revision aggrieved by judgment and order dated 10.06.2016 passed by Additional Sessions Judge No.2, Alwar, whereby, order passed by the Court below was set-aside and the matter was remanded to the Court below for deciding the matter afresh. 2. It is contended by counsel for the complainant-petitioner that as per provisions of Section 346 Cr.P.C., 1973 the Appellate Court cannot remand the matter for deciding it afresh. 3. My attention is drawn to Sub-Clause (a) and (b) of Section 386 Cr.P.C., 1973 Sub-Clause (a) deals with an appeal from an order of acquittal wherein the Appellate Court can direct further inquiry to be made and Sub-Clause (b) deals with an appeal against conviction and therein there is no provision for directing further inquiry. 4. It is also contended that the accused has also preferred a revision petition against the impugned order meaning thereby that both the parties are not satisfied with the impugned order passed by the Appellate Court. 5. Counsel for the petitioner has placed reliance on "Mohinder Singh & Ors. v. State of Punjab & Anr. AIR 1985 SC 383 and Shobhit Agarwal v. state of Rajasthan Criminal Revision No. 717/2017 decided by Rajasthan High Court on 18.05.2017." 6. Counsel for the accused has opposed the revision petition filed by the complainant-petitioner and has contended that in the revision petition preferred by him he has prayed that he be acquitted and the order of the lower Court convicting him be set aside. 7. Counsel for the accused has further contended that the Appellate Court has power to remand a case for deciding the matter afresh. 8. In this regard counsel has placed reliance on "Ramswaroop v. State of Rajasthan in D.B. Criminal (Jail) Appeal No. 848/2013 decided by Division Bench of this Court on 26.05.2016." Reliance has also been placed on "Shahaji Mattapattil & Ors. v. State of Maharashtra, 2010 Criminal Law Journal 1997." 9. I have considered the contentions and have perused the impugned order, the Appellate Court has remanded the case directing the Court below to consider the grounds raised before the Appellate Court and then decide the matter afresh. 10. The Apex Court in the case of Mohinder Singh & Ors. v. State of Punjab & Anr. I have considered the contentions and have perused the impugned order, the Appellate Court has remanded the case directing the Court below to consider the grounds raised before the Appellate Court and then decide the matter afresh. 10. The Apex Court in the case of Mohinder Singh & Ors. v. State of Punjab & Anr. (supra) has held that the order of remand by the High Court in appeal against acquittal for writing a fresh judgment after holding that the Court below has omitted to consider some points is not proper. The proper course available to the Appellate Court is to decide the case itself or send it for retrial. This view was followed by Co-ordinate Bench of this Court in the case of Shobhit Agarwal v. State of Rajasthan and Anr. (supra) 11. "Ramswaroop v. State of Rajasthan" (supra) on which the counsel for the accused has placed reliance is differing on facts because in that case arguments was raised before the High Court stating that the accused was of unsound mind at the time of commission of crime, the High Court held it to be a serious lacunae which vitiated the entire trial and remitted the case back to the Trial Court for fresh medical evidence and then proceed in accordance with law. 12. In the present case in hand if the Appellate Court was not satisfied with the impugned order passed by the Trial Court it was well within its right to deal with the appeal in accordance with law. The remand of the case back to the Trial Court for deciding it afresh is clearly in contravention of provision of section 386 of Cr.P.C., 1973 as held in the case of Mohinder Singh & Ors. v. State of Punjab & Anr. AIR 1985 SC 383 (supra). 13. The order of the Appellate Court thus deserves to be quashed and set-aside. The impugned order is accordingly quashed and set aside. The matter is remitted back to the Appellate Court to decide the same in accordance with law. 14. It is contended by counsel for the petitioner that since the Appellate Court has already made up its mind serious prejudice would be caused to the complainant-petitioner, if the matter is remitted back to the same Court. Counsel for the accused has objected to the said contention. 14. It is contended by counsel for the petitioner that since the Appellate Court has already made up its mind serious prejudice would be caused to the complainant-petitioner, if the matter is remitted back to the same Court. Counsel for the accused has objected to the said contention. His contention is that the Appellate Court is competent to decide the matter. 15. I have considered the objections raised by counsel for the petitioner. 16. Considering the contentions raised by counsel for the petitioner, I deem it proper to direct the Sessions Judge to assign this matter to some other Additional Sessions Judge in place of the Additional Sessions Judge which passed the impugned order. The revision petitions are accordingly allowed. 17. Parties are directed to appear before the Sessions Court on 17.08.2017. Sessions Judge shall call for the record from trial Court and transfer the appeal. Stay application also stands disposed. 18. A copy of this order be placed in each file.