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2021 DIGILAW 427 (BOM)

Mahesh v. State of Maharashtra

2021-02-23

ROHIT B.DEO

body2021
JUDGMENT Rohit B Deo, J. - Heard Mr. A. Ananthakrishnan, the learned counsel for the petitioner and Mr. S.S. Doifode, the learned APP for respondent 1/State. The learned counsel representing respondents 2 and 3 did not appear, and therefore, this Court requested Mr. M.K. Pathan, the learned counsel to represent respondents 2 and 3 as Amicus Curiae. Accordingly, Mr. M.K. Pathan, the learned counsel has assisted the Court. 2. The petitioner and respondents 2 and 3 faced trial for offences punishable under sections 420, 465, 468, 471 read with section 34 of Indian Penal Code ("IPC") in Regular Criminal Case 3/2007. 3. The learned Judicial Magistrate First Class (Court 3) was pleased to acquit the petitioner and convict the respondents 2 and 3 vide judgment dated 15.3.2014. 4. The State did not challenge the acquittal of the petitioner. 5. Respondents 2 and 3 challenged the conviction in Criminal Appeal 40/2014. 6. Respondents 2 and 3 preferred application (Exh. 27) in the Criminal Appeal purportedly under section 311 of the Criminal Procedure Code, 1973 ("Code") seeking recall of the complainant (PW 1) for further cross-examination and for summoning the Investigating Officer, who was not examined in the trial, for adducing evidence. The State opposed the application under section 311 of Criminal Procedure Code ("Code") inter alia contending that the power under section 311 of the Code is available only till the conclusion of the trial, and could not be exercised by the appellate Court. 7. The District Judge-1 and Additional Sessions Judge, Wardha partly allowed the appeal. The judgment dated 15.3.2014 in Regular Criminal Case 2007 was set aside and the trial Court was directed to re-examine the complainant (PW 1) and examine the Investigating Officer. 8. The petitioner, whose acquittal had assumed finality since the State did not challenge the same, and who was neither a party to Criminal Appeal 40/2014 nor was heard by the learned Sessions Judge before setting aside the judgment dated 15.3.2014 in Regular Criminal Case 3/2007, is assailing the said judgment by invoking this Court's jurisdiction under Articles 226 and 227 of the Constitution of India. 9. The learned counsel for the petitioner Mr. A. Ananthkrishnan would submit that the learned Sessions Judge committed a serious error in allowing the application under section 311 of the Code. Mr. 9. The learned counsel for the petitioner Mr. A. Ananthkrishnan would submit that the learned Sessions Judge committed a serious error in allowing the application under section 311 of the Code. Mr. Ananthkrishnan would then submit that the acquittal of the petitioner had assumed finality and the learned Sessions Judge manifestly erred in setting aside the judgment of the trial Court, which in essence, sets aside the acquittal of the petitioner, and that too, without hearing the petitioner. Mr. Ananthkrishnan would emphasize that the petitioner was neither a party to the criminal appeal preferred by the respondents 2 and 3 challenging their conviction, nor was the petitioner noticed or heard by the learned Sessions Judge nor did the State challenge the acquittal of the petitioner. Mr. Ananthkrishnan submits that since the trial cannot be split, the effect and implication of the judgment of the learned Sessions Judge would be that the petitioner would face the trial along with the respondents 2 and 3, which is clearly impermissible in law. 10. Before I consider the submissions advanced, few facts may be noted. 11. Respondent 2 -Kishor Khurana was arraigned as accused in Regular Criminal Case 260/2002. He was ordered to be released on furnishing surety of Rs. 5,000/-. Respondent 3 -Mukund Khurana, who intended to stand as surety, produced certain documents inter alia 7/12 extract, on which court fee stamp of Rs. 5/- was affixed. The 7/12 extract was sent to the Naib Tahsildar for verification. The report submitted by the said officer revealed that the original remark on the 7/12 extract was concealed by fixing the Court fee stamp. The Assistant Superintendent of the Pulgaon Court lodged report implicating Kishor Khurana, Mukund Khurana and the petitioner. Culmination of the investigation led to submission of the chargesheet in Regular Criminal Case 3/2007, and as noted supra, while the petitioner was acquitted, Kishor Khurana and Mukund Khurana were convicted. 12. The application under section 311 preferred in the criminal appeal is on the premise that the counsel, who cross-examined the complainant (PW 1) did not effectively put forth the defence, which was available to the accused, and that the failure of the prosecution to examine the Investigating Officer, therefore, caused prejudice to the convicted accused. 13. 12. The application under section 311 preferred in the criminal appeal is on the premise that the counsel, who cross-examined the complainant (PW 1) did not effectively put forth the defence, which was available to the accused, and that the failure of the prosecution to examine the Investigating Officer, therefore, caused prejudice to the convicted accused. 13. Adverting to the issue involved, the seminal question is whether the learned Sessions Judge could have remanded the matter after setting aside the judgment of the learned Magistrate which acquitted the petitioner and convicted the respondents 2 and 3. The answer must clearly be in the negative. 14. Section 311 of the Code deals with the power to summon material witness, or examine person present and reads thus: 311. Power to summon material witness, or examine person present. - Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. 15. Section 311 is in two parts. Latter part mandates that if it is necessary to summon and examine or recall and re-examine any person referred to in the former part, for the just decision of the case, the Court has no discretion and is obligated to exercise the power to summon and examine or recall and re-examine. It is neither necessary nor appropriate to apply a straight-jacket formula on the anvil of which the exercise of power can be tested. The provision is not meant to benefit either the prosecution or the accused, and rather, the salutary legislative intent is to clothe the Court with sufficient power to ensure that the cause of justice does not suffer. The expression "any Court" and "any stage of any inquiry, trial or other proceeding" indicates that the power under section 311 can indeed be exercised in appeal, and to that extent the submission of Mr. Ananthkrishnan, who argues to the contrary, is untenable. 16. The expression "any Court" and "any stage of any inquiry, trial or other proceeding" indicates that the power under section 311 can indeed be exercised in appeal, and to that extent the submission of Mr. Ananthkrishnan, who argues to the contrary, is untenable. 16. While the learned Sessions Judge did possess the power under section 311 of the Code, the permissible course would have been to further take recourse to the provisions of section 391 of the Code rather than setting aside the judgment and remanding the matter. 17. Section 391 of the Code reads thus: 391. Appellate Court may take further evidence or direct it to be taken.- (1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate. (2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal. (3) The accused or his pleader shall have the right to be present when the additional evidence is taken. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry. 18. The scheme of section 391 is that the additional evidence may either be recorded by the appellate Court or the appellate Court may direct the additional evidence to be recorded by the trial Court. If the trial Court is directed to record the additional evidence, the evidence recorded shall be certified to the appellate Court, which shall then proceed to dispose of the appeal. The Court which is directed to record the additional evidence, cannot record a finding and all that is required is to record and certify the evidence which would facilitate the appellate Court to dispose of the appeal. 19. Section 391 of he Code is pari material with section 428(1) of Criminal Procedure Code, 1898. In Ukha Kolhe..vs.. The Court which is directed to record the additional evidence, cannot record a finding and all that is required is to record and certify the evidence which would facilitate the appellate Court to dispose of the appeal. 19. Section 391 of he Code is pari material with section 428(1) of Criminal Procedure Code, 1898. In Ukha Kolhe..vs.. The State of Maharashtra, (1963) AIR SC 1531 a constitution Bench of the Supreme Court considered the legality and propriety of the order of the appellate Court of setting aside the conviction recorded by the trial Court and directing a retrial. The Supreme Court articulated thus: In the present case, undoubtedly the trial before the Magistrate suffered from irregularities which we have already set out. The evidence, such as was led, was deficient in important respects; but that could not be a sufficient ground for directing a retrial. If the Sessions judge thought that in the interests of justice and for a just and proper decision of the case it was necessary that additional evidence should be brought on the record he should have, instead of directing a retrial and reopening the entire proceeding, resorted to the procedure prescribed by S. 428 (i) of the Code of Criminal Procedure. There is no doubt that if the ends of justice require, the appellate Court should exercise its power under the said section. 20. Mr. Ananthkrishnan invites my attention to the decision of the Supreme Court in State of West Bengal vs. Laisal Haque and another etc., (1989) AIR SC 129 which, in facts not dissimilar to the facts of the present case, observes that the appellate Court failed to appreciate that in an appeal under section 374(2) of the Code, the order of acquittal passed by the trial Court as against acquitted accused could not be interfered with and that there cannot be a piecemeal trial. The relevant observations of the Supreme Court read thus: "10. Lastly, we are constrained to observe that the High Court has not examined the merits of the case at all. If it had done so, it could not have come to the conclusion that there was any material defect or omission in the framing of the charges or giving the particulars thereof or any failure of justice was occasioned thereby. Lastly, we are constrained to observe that the High Court has not examined the merits of the case at all. If it had done so, it could not have come to the conclusion that there was any material defect or omission in the framing of the charges or giving the particulars thereof or any failure of justice was occasioned thereby. It failed to appreciate that in an appeal by the respondents under Section 374(2) of the Code, the order of acquittal passed by the learned Additional Sessions Judge as against the 26 other accused could not be interfered with. The High Court also failed to appreciate that there cannot be a piecemeal trial. The retrial directed by the High Court must necessarily revise the prosecution and must result in a trial de novo against the 42 accused. The 26 other accused acquitted by the learned Additional Sessions Judge were not impleaded as parties to the appeals before the High Court. In the absence of an appeal preferred by the State Government against their acquittal, The High Court could not under Section 386(b) on an appeal by the respondents against their conviction, alter the acquittal nor can there be a splitting up of the trial. See State of Karnataka v. Narsa Reddy, (1987) 4 SCC 170 : ( AIR 1987 SC 2104 )". 21. In my considered view, the judgment impugned is manifestly erroneous. The trial cannot be split. The judgment of the learned Magistrate, which acquits the petitioner and convicts respondents 2 and 3 is set aside, behind the back of the petitioner and in the absence of an appeal preferred by the State challenging the acquittal of the petitioner. The effect and implication of the judgment impugned is that the petitioner who is acquitted, shall be forced to face the trial alongwith the convicted accused, respondents 2 and 3 herein who preferred the appeal. 22. The judgment impugned is quashed and set aside. 23. The learned Sessions Judge shall hear the appeal on merits, after recording additional evidence, if deemed fit, under section 391 of the Code. 24. Rule is made absolute in the aforestated terms. 25. The assistance rendered by the learned Amicus Curiae is appreciated.