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2017 DIGILAW 2759 (RAJ)

Arjun Singh v. State of Rajasthan Through P. P.

2017-12-12

SABINA

body2017
JUDGMENT : Sabina, J. Vide this order above mentioned two petitions would be disposed of as they have arisen out of common order dated 29.01.2013. 2. Learned counsel for the petitioners have submitted that the petitioners had faced trial under Section 465, 468, 471, 120-B Indian Penal Code, 1860 (hereinafter referred as 'IPC'). Petitioners were convicted and sentenced by the trial Court vide order dated 10.06.2011. The said order was set aside by the Appellate Court vide order dated 03.12.2011 and the case was remanded to the trial Court for a fresh decision. On remand, trial Court again ordered the conviction and sentence of the petitioners vide order dated 07.06.2012 under Section 465, 468, 471, 120-B IPC. Appellate Court vide impugned order dated 29.01.2013 has set aside the conviction and sentence of the petitioners and has remanded the case to the trial Court for a fresh decision. Learned counsel for the petitioners have submitted that the Appellate Court being itself a final Court of facts should have re-considered the evidence itself if had not been properly considered by the trial Court and should have decided the appeal on merits, rather than remanding the case to the trial Court for the second time. 3. In support of his arguments, learned counsel have placed reliance on the decision of the Hon'ble Supreme Court in Mohinder Singh and others etc v. State of Punjab and Haryana and another, AIR 1985 Supreme Court Cases 383, wherein it was held as under:- "In the first place, assuming that the High Court was right in thinking that the judgment suffered from tome infirmities and there were certain facts which were not taken into consideration they would not be grounds remanding the case to the Sessions Court to write a proper judgment. The High Court itself was a final court of facts and it was its duty to satisfy itself regarding the correctness and acceptability of the evidence. Thus, it was entirely open to the High Court to reappraise the evidence once again to consider the facts which may have been overlooked by the Sessions Judge and it should have decided the appeal itself instead of remanding the case to the Sessions Court. Thus, it was entirely open to the High Court to reappraise the evidence once again to consider the facts which may have been overlooked by the Sessions Judge and it should have decided the appeal itself instead of remanding the case to the Sessions Court. It being a moot point, we refrain from expressing any opinion on the question whether the first appellate court of fact can in a criminal case send the case back to the Sessions Court for writing a fresh judgment. The proper order in such a case should be either to decide the case itself or to send it for re-trial. The question of re-trial does not arise in the view we have taken in this case." 4. Learned counsel have next placed reliance on the decision of this Court in Shobhit Agarwal v. State of Rajasthan through RR, 2017(4) WLC (Raj.) 393, wherein it was held as under:- "In view of provisions of Section 386 and law settled by Apex Court, judgment dated 4.4.2017 with regard to remand back the matter for fresh decision is found to be against the principles of law, inappropriate and incorrect and as such deserves to be quashed and set aside." 5. Learned State Counsel on the other hand has opposed these petitions. 6. In the present case, petitioners had faced trial qua offence punishable under Sections 465, 468, 471, 120-B IPC. Appellate court while remanding the case to the trial Court for a fresh decision vide the impugned order had held that the trial Court had not properly considered the fact as to whether the accused were entitled for benefit of doubt and the judgment had been given by presuming that the accused have committed the offence. Appellate Court being itself a Court of facts could have reconsidered the evidence itself and should have decided the appeal on merits, rather than remanding the case to the trial Court for the second time. Hence, these petitions are allowed. Impugned order is set aside. Appellate Court is directed to dispose of the appeal filed by the petitioners on merits in accordance with Law.