Ganga Ram and Others vs State of Rajasthan and Another <BR> Gopal Krishan Vs Ganga Ram and Others

M.N. Bhandari, J.—By these criminal revision petitions, challenge is made to the common order dated 16.7.2012 passed in Criminal Appeal No. 85/2011 "Gangaram & ors. versus State of Rajasthan" and Criminal Appeal No. 87/2011 "Gopal Krishan versus Gangaram & ors.". Gopal Krishan has filed two revision petitions No. 1133/2012 in Criminal Appeal No. 85/2011 and 87/2011. Cross revision petition has been filed by Gangaram & ors. bearing SB Cr Revision Petition No. 1191/2012 stating that against the order of conviction and grant of benefit of probation, an appeal was preferred raising many issues on merit other than the issue considered and decided by the appellate court. The appellate court remanded the matter to the trial court holding that arguments for framing of charges were not heard despite conversion of case from summons to warrant thus order of conviction and consequential order cannot be allowed to stand. The reason given for remand was not raised by the accused in his appeal and even not argued thus the remand order was passed on the ground not raised by the petitioner accused thus impugned order deserves to be set aside with direction to the appellate court to consider the matter in respect of the grounds raised in the appeal and decide it afresh. Learned counsel for complaint-Gopal Krishan submits that accused never raised a ground regarding framing of charges. It is, no doubt, true that earlier charges were famed for offence under various provisions including sections 147, 341, 323 and 451 IPC. On an application moved u/s 216 CrPC, charge was altered from 451 to 452 IPC but then the matter proceeded without any objection from either side. The trial court convicted the accused persons-Gangaram & ors. but benefit of probation was given to them. The benefit of probation was given in ignorance of the fact that it was not a case of first crime rather accused persons had earlier given benefit of probation thus aforesaid benefit was not available to them. An appeal was filed by the complainant to challenge the order of the trial court, however, limited to the issue of granting benefit of probation. The appeal was decided on the ground even not raised. The trial court''s order was set aside by remanding the case. Accordingly, impugned order deserves to be set aside not only in regard to the revision of the accused but on the revision separately preferred by the complainant also. The appeal should be heard afresh and while hearing the appeal of the complainant, it should be limited to the issue as to whether accused persons were entitled to the benefit of probation or not. Accordingly, impugned order may be set aside.

I have considered the matter. Complainant Gopal Krishan has filed two revision petitions against the common order passed in two appeals. Accused persons-Gangaram & ors. have also filed revision petition against the same order.

On facts, it is not in dispute that order of conviction has been set aside with remand on a ground not urged by the accused persons. It was not the case of the accused persons that charges were not framed as per provisions of law thus conviction may be set aside. The aforesaid fact has been admitted by the other side i.e. complainant. Accordingly, the reason given by the appellate court for remand cannot be accepted. The revision petition preferred by the accused persons Gangaram & ors. is according allowed and order passed by the appellate court is set aside.

The grounds raised in the appeal was on facts to challenge the conviction order which is required to be heard in reference to the pleadings in appeal and the grounds urged therein. Accordingly, revision petition preferred by the accused is allowed. Impugned order is set aside with direction to the appellate court to hear and decide the appeal of the accused in reference to the pleadings and the grounds urged therein.

So far as revision petitions preferred by the complainant are concerned, the issue raised therein has not even been considered. The challenge therein was to grant of benefit of probation to the accused persons, who had already been convicted and benefit of probation was given to them on earlier occasion. It was pursuant to the earlier conviction. Since the order on appeal has already been set aside in the revision petition preferred by the accused persons, impugned order is set aside even in reference to the arguments of the complainant. Hence, impugned order dated 16.7.2012 is set aside with remand of the matter to the appellate court to hear and decide the appeal of the complainant-Gopal Krishan in the light of the issue raised by him. With the aforesaid, all the criminal revision petitions so as the stay applications stand disposed of. The appellate court is directed to hear and decide the appeals at the earliest.