Jamuna Singh and Others vs The State of Bihar

Nagendra Prasad Singh, J.—This application in revision is directed against an order passed bv the learned Additional Sessions Judge, Third Court, Patna, passed in Criminal Appeal No. 31 of 1969. setting aside the order of conviction and sentence Dassed against the petitioners by a Munsif-Magistrate. First Class, Dinapore. and remanding the case to the trial Court with a direction to afford an opportunity to the prosecution to examine two iniured witnesses who could not be examined during the trial.

The learned Munsif-Magistrate had convicted petitioner No, 1 under Sections 326 and 148 of the ''Indian Penal Code and sentenced him to undergo risor-oug imprisonment for two vears u/s 326 and for one vear u/s 148. Petitioner No. 2 had been convicted under Sections 323. 147 and 326/149 of the Penal Code, and the remaining petitioners were convicted under Sections 147, 325/34 and 326/149 of the Indian Penal Code.

The prosecution case, in brief, was that, on the 13th Aucmst, 1965. at about 7 d. m., the informant Bhuneshwar Singh and others were sittins in front of the mill of Bhuneshwar Singh, situate in village Fatehpur, P. S. Paligani. It was alleged that these petitioners came there variously armed. Petitioner No. 1 eave orders for assault and himself assaulted one Jadu with a sarasa. The said Jadu was also assaulted bv petitioner Nanhak Ram with lathi. Petitioner Nanhak Ram also gave a lathi blow to one Raibali. Informant Bhuneshwar Singh fled into his mill where he was chased, but he managed to escape. Therefore, the accused oer-sons fled away.

At the trial, the prosecution examined witnesses in support of its case, but it appears that the aforesaid two injured witnesseg. Jadu and Raibali, could not be examined on behalf of the orose- cution. The learned Munsif-Masistrate. on the materials on record, came to the conclusion that the prosecution had Proved its case against the accused persons. The petitioners were, accordingly, convicted and sentenced.

Against the said judgment of the learned Munsif Magistrate, the petitioner preferred the aforesaid appeal. In support of the appeal, learned counsel appearing for the petitioners urged that the-two important iniured witnesses, that is, the aforesaid Jadu and Raibali, had not been examined on behalf of the prosecution, attd. as such, adverse inference should be drawn against it, The learned Additional Sessions Judge, instead of disposing of the appeal on merits, bv the-impugned order set aside the order of conviction and sentence, remanded the-case to the trial Court and directed it to? examine the aforesaid two iniured witnesses. Jadu and Raibali. He has further directed that, after the examination, of the aforesaid two witnesses, the accused persons should be affain examined? u/s 342 of the Code of Criminal Procedure, 1898 (hereinafter referred! to as the ''Code'') and they should be allowed to examine anv witness in their defence, The learned Additional Sessions Judge has further directed that, after hearing the arguments of the parties, the'' trial Court shall pronounce iudgment on. merits in accordance with law.

Learned Counsel for the petitioners has urged that, under the Code, a. remand of the kind ordered by the learned''. Additional Sessions Judge is unknown. In my opinion, there is substance in the contention of the learned Counsel. Powers of. the appellate Court have been prescribed u/s 423 of the Code. A. Court hearing an appeal against a judgment of conviction can order a retrial of the accused persons bv a Court of competent iurisdiction. The relevant Clause (b) of Section 423 (1) of the Code is as follows:

423 (1) The Appellate Court shall then send for the record of the case, if such record is not alreadv in 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 u/s 411-A. Sub-section (2). or Section 417. the accused, if he appears, the Court mav. if it-, considers that there is no sufficient ground'' for interfering, dismiss the appeal, or- may�

* * * * * (b) in an appeal from a conviction (1) reverse the finding and sentence, and'' acquit or discharge the accused, or order-him to be retried bv a Court of competent iurisdiction, subordinate to such Appellate Court or committed for trial, or. (2) alter the finding, maintaining the sentence, or. with or without altering the finding, reduce the sentence, or. (3) with or without such reduction and with or -without altering the finding, alter the .nature of the sentence but, subject to the provisions of Section 106. Sub-section (3), Jiot so as to enhance the same;

* * * * * In the instant case, the learned Additional Sessions Judge had not exercised this power of ordering retrial. In paragraphs 11'' and 12 of his judgment, the learned Judge has observed as follows:

As discussed above, the order of the Court below is set aside and the case is remanded for trial in the Heht of mv observations made above. The Court, is, Jiowever, directed to give an opportunity to the prosecution to examine the said two injured persons fJadu and Raibali) and thereafter it will examine the accused .persons u/s 342. Criminal P. C. -and after giving a chance to the defence to adduce evidence, if anv. and after liearing the arguments of the parties the Court below shall pronounce the judgment on merit in accordance with law.

In the result, the order of conviction and sentence passed bv the ''Court below are hereby set aside. The case is remanded with the directions indicated above and the accused appellants are directed to appear before the Court below when noticed bv the trial Court. The appeal is accordingly disposed of." This tvpe of order is not permissible under the Code, because once a retrial is ordered bv the Appellate Court, the evidence already on record is deemed to be wiped off from the records, Moreover, this power of retrial should be exercised only in exceptional cases where the Court of appeal finds- that the Court trying the case had no jurisdiction or the trial had been vitiated due to some serious illegality, This power cannot be exercised for allowing the prosecution to fill up the lacuna in the -prosecution case. As was observed in Pandit Ukha Kolhe Vs. The State of Maharashtra, .

An order for retrial of a criminal case is made in exceptional cases, and not unless the appellate Court is satisfied that the Court trying the proceeding had no jurisdiction to try it or that the trial was vitiated bv serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the prosecutor or an accused was. for reasons over which he had no control, prevented from leading or tendering eviT dence material to the charge, and in the interests of justice the appellate Court deems it appropriate, having regard to the circumstances of the case, that the accused should be put on his trial aeain. An order of retrial wipes out from the record the earlier proceeding, and exposes the person accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons.

In my opinion, the impugned order cannot be construed to be an order for retrial; and even if it is to be so construed, no sufficient reason has been given by the learned Additional Sessions Judge for ordering a retrial.

u/s 428 of the Code, if the Court of appeal thinks that additional evidence is necessary to be taken, it mav either take such evidence itself or direct it to be taken by the Magistrate concerned. The relevant portion of Section 428 of the Code reads as under:

428 (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 mav either take such evidence itself, or direct it to be taken bv a Magistrate, or. when the Appellate Court is a High Court, bv 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.

Under this section, if the Court of appeal directs the trial Court to take additional evidence, then the trial Court has to record the evidence as directed bv the Appellate Court and then to send such evidence to the Appellate Court which shall proceed'' to dispose of the appeal taking into consideration such additional evidence. From the order of the learned Additional Sessions Judge it does not appear that he has exercised his powers u/s 428, because in that case there was no question of setting aside the judgment passed by the trial Court and directing it to deliver a fresh judgment after examining the witnesses and the accused and after hearing arguments on merits. In my opinion, the learned Additional Sessions Judge has adopted a hybrid procedure which is foreign to the scheme of the Code. 1 am supported in my view by a Bench decision of this Court in Gajanand Thakur v. EmoerorAIR 1916 Pat 219 : 17 Cri LJ 332 where it was held that a direction by the Appellate Court to record a fresh decision on the evidence alreadv on the record, along . ''with the evidence to be taken, was wholly illegal. In circumstances similar to the present case it was held bv this Court in :Sri Krishna Prasad Sinha v. Emperor AIR 1936 Pat 438 : 37 Cri LJ 906 that whenever a Court of appeal is of the opinion that certain important evidence had not been brought on the recordg of the case by the trial Court, onlv two oourses are open to it - either to keep the appeal pending and order takinff of additional evidence by the trial Court, or to set aside the judgment and order retrial. It was further observed that when a retrial is ordered it would be de novo trial and that the evidence which had been recorded earlier ''bv the trial Court in the trial is wiped off from the records of the case.

For the reasons given above. I am of the opinion that the order of the learned Additional Sessions Judge is bad in law and has to be set aside.

In the result, the revision application is allowed! the order of remand passed bv the learned Additional Sessions Judge is set aside and Criminal Appeal No. 31 of 1969 is restored to its file, and the learned Additional Sessions Judge will dispose of the appeal in accordance with taw in the light of the observations made above.

The appeal appears to be an old one and the learned Sessions Judee will see that it is disposed of at an early date.