Bhupendra Singh Thakur vs State Of Chhattisgarh

Heard.

This petition is filed under Section 482 of the Code of Criminal Procedure against order dated 30.12.2021 passed by the Additional Judge to the Court of Additional Sessions Judge, Kabirdham in Criminal Appeal No. 14/2017 whereby the learned Sessions judge remitted the case to the Court of Judicial Magistrate First Class, Kabirdham with a direction to afford an opportunity to the prosecution to lead evidence arising out of judgment of conviction and order of sentence dated 27.02.2017 passed by the Judicial Magistrate First Class, Kabirdham in Criminal Case No. 98/2015.

Brief facts of the case are that at the relevant point of time between April 1996 to 31/12/1999, the petitioner was posted as Principal and one co-accused Dhruv Prasad Sharma was posted as a Clerk at Govt. Higher Secondary School Sahaspur Lohara. It is alleged that the co-accused Dhruv Prasad Sharma prepared fabricated fake bills for withdrawal of Provident Fund (PF) from the account of teachers working in the Higher Secondary School Sahaspur Lohara and other schools affiliated to Higher Secondary School Sahaspur Lohara and the same was signed by the petitioner who was Drawing and Disbursing Authority. It is further alleged that the accused persons have entered all fake bills in the BTRs and submitted them to the District Treasury Kabirdham and obtained tokens for payment and by tendering the tokens at the State Bank of India, Kawardha withdrew the amount in cash and embezzled the government fund for their own use. It is further alleged that the petitioner being Drawing and Disbursing authority made overwritings in serial numbers of BTRs and after making alterations, they made the counter files disappear. Entry of as many as 69 BTRs in the payment register and thereby accused persons knowingly that the documents are fake, used the documents as genuine & dishonestly withdrew and misappropriated amount of Rs. 13,03,000/-. Charge-sheet was filed against the accused persons under Sections 409, 420, 467, 468 and 471 r/w Section 34 of IPC and are facing trial before learned Judicial Magistrate First Class, Kabirdham (C.G.). After trial the learned Judicial Magistrate First Class, Kabirdham vide its judgment of conviction and order of sentence dated 27.02.2017 found the petitioner guilty and convicted him. Being aggrieved by the judgment of conviction and order of sentence dated 27.02.2017, petitioner preferred a Criminal Appeal No. 14/2017 before the Additional Sessions Judge Kabirdham. The learned Additional Sessions Judge, Kabirdham vide impugned judgment dated 30.12.2021 partly allowed the appeal by setting aside the conviction and sentences imposed by learned Judicial Magistrate First Class Kabirdham, remanded back the case to the court of Judicial Magistrate with direction to afford an appropriate opportunity to the prosecution to examine the handwriting expert and on being examined the hand writing expert by the prosecution, an opportunity of cross-examination is given to the defence, and thereafter passed the judgment considering the evidence adduced by the prosecution and defence as well. Hence, the petition.

Learned counsel for the petitioner submits that the order of remanding the case is bad in law because the prosecution had never sought any prayer for opportunity of examination of the prosecution hand writing expert. It was not a case where the prosecution was not given opportunities to examine the witness. On the other hand, it is crystal clear that the prosecution did not chose to examine hand writing expert as well as important witnesses even after several opportunities were given to them. The order of remanding the case is bad in law because the State had never challenged the order of the Judicial Magistrate whereby the application filed by the prosecution seeking permission under Section 311 of Cr.P.C. to examine the witness was rejected vide order dated 27-12-2016. The appeal is preferred by the petitioner against the judgment of conviction and order of sentence therefore, order could not have been passed in the appeal preferred by the convict to fill up the lacunae of the prosecution. Particularly, where such a relief has not been sought by the prosecution itself. Learned appellate court has failed to appreciate correctly the ratio laid down by Hon'ble the Supreme Court in the cases referred and relied on by him while remanding the case back. The appellate Court while reverting the case, committed gross error of law by remanding the trial to the learned trial court with the observation and direction to the prosecution to fulfill the lacuna and the wrong done by the prosecution. The order passed by the appellate court is absolutely illegal and contrary to the law because the appellate court cannot give opportunity again to the prosecution, when it has failed to prove its case beyond all reasonable doubt and the accused/petitioner herein is always entitled to get the benefit from the failure of the prosecution. The impugned order is against the settled principle of law and the appellate court cannot sit as a prosecution agency by directing and again providing opportunity to prove its case by pointing the lacuna of prosecution. He further submits that the learned appellate court at para 19 of its judgment held that judgment of conviction has been passed by the trial court on the basis of presumption. It is further held that the judgment passed by trial court is not a speaking judgment, wherein evidence of the prosecution has not at all been appreciated and reasons are not assigned, it is therefore, not possible for him to decide the appeal on the merits of the case. The learned appellate court has held that, had the trial court passed the judgment after considering the evidence then he would have either agree or disagree with the findings. But the direction passed by the appellate court is against the settled principle by the Hon'ble Supreme Court and the trial court. Therefore, the impugned order is liable to be set aside. Learned counsel for the petitioner has referred to the decision of Hon'ble Supreme Court made in the case of Satyajit Banerjee and others v. State of W.B. and others [2005 (1) SCC 115], Zahira Habibulla H. Sheikh v. State of Gujarat reported in 2004 (4) SCC 158 and in the matter of Harishankar Prasad Sahu and others v. State of Chhattisgarh passed in CRR No. 94/2014 vide order dated 04.04.2014 by this court.

On the other hand, learned State counsel submits that judgment passed by the trial court is well within the competence and power under Section 386 of Cr.P.C. conferred upon the appellate court while hearing the appeal. It is also contended that the court has also power to call for the witnesses under Section 311 of Cr.P.C. therefore, the learned counsel for the State has prayed for rejection of the instant petition.

Heard counsel for the parties and perused the material available on record.

It is clear from the material available on record that the Judicial Magistrate First Class, Kabirdham after completion of trial, has found the petitioner guilty of having committed the offence under Sections 420, 409, 467, 468 and 471 r/w section 34 of the IPC. Accordingly, the trial court vide its judgment dated 27.02.2017 convicted the petitioner as under:-

Conviction

Sentence

Default

U/s 420 of IPC

R.I. for 3 years and to pay fine of Rs. 500/-

In default of payment of fine 10 days additional S.I.

U/s 409 of IPC

R.I. for 3 years and to pay fine of Rs. 500/-

In default of payment of fine 10 days additional S.I.

U/s 467 of IPC

R.I. for 3 years and to pay fine of Rs. 500/-

In default of payment of fine 10 days additional S.I.

U/s 468 of IPC

R.I. for 3 years and to pay fine of Rs. 500/-

In default of payment of fine 10 days additional S.I.

U/s 471 of IPC

R.I. for 1 year and to pay fine of Rs. 300/-

In default of payment of fine 06 days additional S.I.

Learned Additional Sessions Judge, Kabirdham while hearing the appeal of the accused/petitioner without entering into the merits of the case found that the trial court has not acted properly and prosecution has not examined the hand writing expert. Learned appellate court also held that the impugned judgment is not a speaking judgment, trial court had not appreciated the evidence of the prosecution and the learned appellate court vide its judgment dated 30.12.2021, remitted the matter back to the trial court after setting aside the judgment of conviction and order of sentence dated 27.02.2017 with direction to afford appropriate opportunity to the prosecution to examine the hand writing expert and on being examined by the prosecution, opportunity of cross-examination is given to the defence and thereafter passed the judgment considering the evidence adduced by the prosecution and evidence as well.

In Criminal Revision No. 94 of 2014 (Harishankar Prasad Sahu & others v. State of Chhattisgarh) vide order dated 04.04.2014, the High Court in paras 11, 12, 13 and 14 has held as under:-

It is worthwhile at this juncture to refer a decision of Hon'ble Supreme Court made in this case Satyajit Banerjee and others v. State of W.B. and others [2005 (1) SCC 115], wherein the Hon'ble Supreme Court relying upon its earlier decision in Zahira Habibulla H. Sheikh v. State of Gujarat (commonly known as the “Best Bakery case”), reported in 2004 (4) SCC 158, has held in para 26, that direction for retrial should not be made in all or every case where acquittal of accused is for want of adequate or reliable evidence.

When the said judgment of Hon'ble Supreme Court is compared with the facts of the instant case, it would reveal that the present is a case where it was an appeal against the judgment of conviction and order of sentence which was under challenge at the behest of the convicted persons and that the appellate Court i.e. the Sessions Judge, Korba, ought to have considered the merits of the appeal in the light of the evidences which have come before the trial court. The appellate court could not have assumed a role of a trial court.

From the said judgment of Hon'ble Supreme Court, it is evidently clear that that Court could have remanded the matter only in very exceptional case where it is found that there is a defect of procedure or a manifest error of law resulting a flagrant miscarriage of justice is taken place in the course of the trial Court deciding the case. However, in the instant case, the trial Court in spite of the said alleged deficiency of not examining the Doctor, yet, has reached to the conclusion that the case of the prosecution has been proved and the charge against the applicants for the offence under Section 498-A read with Section 34 of IPC has been established. Thus, it cannot be said that there was a defect of procedure on the part of the trial court while conducting the trial or that there has been a manifest error of law in the course of conducting the trial court on the part of the prosecution as well as the trial court.

Recently also the Hon'ble Supreme Court in the case of Mary Pappa Jebamani v. Ganesan and others [2014 AIR SCW 417] has reiterated the fact that only in an extraordinary situation when the first trial is found to be a farce and mock trial could justify the direction of the appellate court for retrial.

The learned appellate court remanded the case for examination of hand writing expert but from the light of the above dismissal by Hon'ble Apex Court and this Court, it is clear that the appellate court could not have and does not have the power to remand the case for retrial so as to fill up the lacunae on the part of the prosecution and the trial court more particularly, when the judgment under-challenge before the appellate court was against the conviction and sentence. Moreover, the prosecution has also not agreed with the decision of the trial court in any manner as the decision of the trial court has not been challenged by the prosecution.

Thus, for the foregoing reasons, the present petition is allowed and the impugned judgment dated 30.12.2021 passed by the learned Additional Sessions Judge, Kabirdham in Criminal Appeal No. 14/2017 is set aside and the matter is remitted back to the appellate court for deciding the petition preferred by the accused/petitioner on its own merits. The learned appellate court is also directed to decide the matter as early as possible preferably within a period of six months from the date of production of the copy of this order.