Revision petition allowed. High Court quashed Sessions Judge's order remanding an appeal against acquittal to trial court and directed fresh hearing on merits by appellate court.
Revision allowed; impugned judgment dated 4.4.2017 quashed; matter remitted to Sessions Judge to decide appeal afresh.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
S.B. Criminal Revision No. 717 / 2017
Shobhit Agarwal S/o Surendra Kumar Garg B/c Mahajan, Aged About 34 Years, R/o 40, Nand Vihar Colony, Vaishali Nagar, Jaipur City, South, Raj.
----Petitioner
Versus
----Respondents
For Petitioner(s) : Shri Monu Kumar and Shri Surya Prakash For Respondent(s) : Shri V.S. Godara, PP
Shri A.K. Gupta
HON'BLE MR. JUSTICE VIJAY KUMAR VYAS
Order
REPORTABLE
18/05/2017
Heard learned counsels for rival parties and perused
the material available on record.
The petitioner has assailed the judgment dated 4.4.2017 passed by learned Sessions Judge, Jhunjhunu, while hearing Cr. Appeal No.55/2016, whereby learned appellate court quashed and set aside the judgment dated 11.5.2016 with regard to conviction and sentence passed by learned Chief Judicial Magistrate, Jhunjhunu in regular Cr. Case No.48/2010 and remitted back the matter to the trial court with the direction to hear afresh both the parties and decide the same on merits.
(2 of 3)
[CRLR-717/2017]
The petitioner accused was acquitted by the trial court vide order dated 11.5.2016 from charges for offences punishable u/s 498A and 406 IPC.
Section 386, Cr.P.C. is as follows :
“ 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 -
(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) -----------------------------------------------
(d) ------------------------------------------------
(e) -----------------------------------------------”
In the matter of Mohinder Singh and others etc. v.
State of Punjab and another, AIR 1985 SC 383, Apex Court has
observed in para 3 as under :
“…………. We might, however, mention that the High Court instead of analysing and appreciating evidence, remanded the case back to the
(3 of 3)
[CRLR-717/2017]
Sessions Judge for writing a proper judgment. In the first place, assuming that the High Court was right in thinking that the judgment suffered from some infirmities and there were certain facts which were not taken into consideration they would not be grounds for 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 into 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. 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 sent it for retrial.”
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.
In the result, the revision petition is allowed. Judgment dated 4.4.2017 passed by learned Sessions Judge, Jhunjhunu in Cr. Appeal No.55/2016 is set aside and the matter is remitted back to learned Sessions Judge, Jhunjhunu with direction to decide the appeal afresh after hearing both the parties, by an appropriate order as per law.
(VIJAY KUMAR VYAS),J.
Chauhan/207
2 issues framed by the court
Whether the Sessions Judge erred in remanding an appeal from an order of acquittal back to inferior court instead of deciding it itself under Section 386 Cr.P.C.
Whether the High Court's decision to quash the lower appellate court's remand order violates settled law.
Colour shows how this judgement treated each authority
Mohinder Singh and others v. State of PunjabRelied on¶31
Mohinder Singh and others v. State of Punjab, AIR 1985 SC 383 · Who else cites this
1 provisions across 1 enactments
Shobhit Agarwal
State of Rajasthan
Neha Jain
Vijay Kumar Vyas
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
