Chakrapani Pandey vs State of M.P.

M.C. Garg, J.—Petitioner by way of this revision assailed the order passed he Additional Sessions Judge, Rewa, in Criminal Appeal No. 194/2010 whereby, while considering the appeal filed by the appellant in Criminal Case No. 488/2010 wherein, they were convicted for the offence u/s 379 and 411 of IPC though other co-accused persons were acquitted, the case was remanded back for retail against the present petitioner vide impugned order. The petitioner was asked to appear before the trial Court to face the trial afresh.

The learned counsel for the petitioner submits that such an order could not have been passed by the Appellate Court inasmuch as, the impact of the order is that the entire trial stands revived and the other persons who have been acquitted may also face trial. Even though no appeal has been filed against them by the State against acquittal has referred to the judgment of the Hon''ble Supreme Court delivered in the case of State of West Bengal and Another Vs. Laisal Haque and Others, In the said case dealing with the similar situation the Hon''ble Supreme Court passed the following order:

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 S. 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 S. 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

Accordingly, the appeals must succeed and are allowed. The judgment and order passed by the High Court are set aside and the appeals are remitted to the high Court for a decision afresh on merits after notice to the parties.

In the aforesaid judgment there is also a reference to another judgment of the Hon''ble Supreme Court delivered in the case of State of Karnataka Vs. Narsa Reddy, relevant paragraph of that judgment, which is also relevant for the disposal of this case is reproduce here as under:

We have no manner of doubt that the direction made by the learned Single Judge presumably exercising the inherent powers of the High Court u/s 482 of the Code of Criminal Procedure was wholly unwarranted. It is somewhat strange that the learned Single Judge should have made a direction at all requiring the learned Sessions Judge to proceed with the trial as against the respondent and accused 2, Vaijinath merely because there was stay granted by the High Court in revision preferred by the co-accused Head Constable Govinda Rao and Police Constable John, accused 3 and 4 against the order passed by the learned Sessions Judge dated October 28, 1985 rejecting the objection as to the validity of trial for want of sanction. If he felt that the grant of stay would prejudicially affect the respondent and accused 2, Vaijinath and subject them to a protracted trial, the proper course for the learned Single Judge was to have heard and disposed of the Criminal Revision No. 886 of 1985 rather than make a direction of this kind which would, in fact, result in splitting up of the trial which is apt to cause miscarriage of justice, besides serious prejudice to the prosecution. From the nature of the prosecution case, it is quite apparent that the evidence to be led by the prosecution would be more or less common as it relates to the same occurrence. It could not be said that merely because the proceedings before the learned Sessions Judge were held up due to stay granted by the High Court in that revision, the learned Single Judge could have taken recourse to the inherent powers of the High Court u/s 482 of the Code, or that it was necessary to do so either to prevent abuse of the process of Court or otherwise to secure ends of justice. Any further delay in the trial could be prevented by taking up the revision for hearing.

In the result, the appeal succeeds and is allowed. The order passed by the High Court is set aside and the High Court is directed to hear and dispose of Criminal Revision No. 886 of 1985 as early as possible. In the meanwhile, the proceedings in Sessions Case No. 23 of 1984 before the learned Sessions Judge shall remain stayed till the disposal of the revision.

Taking into consideration of the aforesaid judgments of the Hon''ble Supreme Court the case is directed to be remanded back to the Appellate Court with a direction to decide the appeal on merits and the order of remanding the case for retrial to the Court of Judicial Magistrate First Class is set aside. Petitioner to appear before the Sessions Judge on 15th May 2012. Copy of this order along with the record be sent forthwith to the Sessions Court. The bail bond furnished by the petitioner before this Court shall remain in existence till the petitioner files fresh bail bond before the sessions Court to the satisfaction of that court to face the trial to appear before the Appellate Court till the bail is decided and to face the consequences thereupon.

Petition stands disposed of in terms of the aforesaid order.