Pashori Lal and Another vs Punjab State

S.S. Dewan, J.—This judgment will dispose of Cr. Misc. petitions Nos. 983-M and 985-M of 1979. These petitions, u/s 482, Code of Criminal Procedure, 1973, turn on the question whether the Appellate Court while setting aside the conviction of the accused has the power to direct the trial court to examine a prosecution witness who could not be examined during the trial and deliver a fresh judgment after hearing arguments on merits. In both these cases the learned Additional Sessions Judge, Rupnagar set aside the conviction and sentence passed against the Petitioners by the Judicial Magistrate 1st Class, Kharar and remanded the case to the trial court for fresh decision after examining the Public Analyst. The learned Magistrate convicted the Petitioners u/s 7 of the Essential Commodities Act and sentenced them to undergo rigorous imprisonment for one year and a fine of Rs. 1,000/- or in default to undergo rigorous imprisonment for two months each.

Now I may deal with the facts in Cr. Misc. petition No. 983-M of 1979. The prosecution case, in brief, is that) no receipt of a secret information on 23rd January, 1974, Inspector Charanjit Singh of Police Station, Rupnagar, accompanied by Sita Ram, Dev Raj and some police officials raided the godown of the Petitioners in Camp Mubarakpur and recovered 80 bags of white salt. The Petitioners could not produce any permit or licence to keep the white salt. The inspector took samples from each of the bags and thereafter the bags and the samples were sealed and taken into possession,--vide recovery memo Ex. PC. On the basis of ruqa, Ex. PF, sent by the Inspector to the Police station, Mubarakpur, the formal first information Report, Ex. PF/4, was recorded. The Public Analyst, who examined the samples found it a common salt but it did not contain any iodine either as iodite or iodate. On the completion of the investigation, the Petitioners were sent up for trial, At the trial, the prosecution examined witnesses in support of its case but it appears that the Public Analyst could not be examined on behalf of the prosecution. The learned Magistrate on the material placed before him came to the conclusion that the prosecution had proved its case against the Petitioners and they were accordingly convicted and sentenced.

Against the said judgment of the learned Magistrate, the Petitioners preferred appeal before the Additional Sessions Judge, Rupnagar, who set aside the conviction and sentence and remanded the case to the trial court for a fresh decision with a direction to examine the Public Analyst to prove his reports, which has led to the filing of these petitions for setting aside the impugned order on the ground that it is illegal and without jurisdiction.

During the course of arguments before the Additional Sessions Judge, the learned Public Prosecutor submitted that the reports of the Public Analyst, Exs. P-81 to P-161, could not be legally received into evidence in view of the provisions of Section 293, Code of Criminal Procedure, 1973, whereunder the Govt. Scientific Experts have been detailed. It was urged that the reports of the Public Analyst had been wrongly admitted into evidence and the same could not have been taken into evidence unless the Public Analyst was examined as a witness in the case. In support of his contention, the learned Public Prosecutor cited an unreported decision in case State of Punjab v. Jaswant Singh, Criminal Appeal No. 1512 of 1975, decided by D. B. Lal and Harbans Lal, JJ., of this Court on 6th October, 1978.

The question is whether the present petition lies against the order passed by the learned Additional Sessions Judge remanding the case to the trial court for a fresh decision on the evidence already recorded by it along with the evidence to be taken by him. It was contended by the learned Counsel for the Petitioners that these petitions may be treated as petitions in revision u/s 435/459 of the old Code and at any rate the High Court exercising supervisory jurisdiction over the subordinate courts can set aside an order if found to be illegal and unjust and do justice to the parties affected thereby. The learned Counsel appearing for the State is unable to repel this contention of the Petitioners. The matter having been brought to my notice, this Court has the power to interfere with the orders impugned in exercise of its revisional powers.

The learned Counsel for the Petitioners has urged that under the Code of Criminal Procedure, 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 old Code. The Court hearing an appeal against a judgment of conviction can order a retrial of the accused by a court of competent jurisdiction. The relevant Clause (b) of Section 423(1) of the old Code of Criminal Procedure is as follows:

The Appellate Court shall then send for the record of the case if such record is not already in Court. After persuing 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 may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may--

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(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 by a Court of competent jurisdiction, subordinate to such Appellate Court or committed for trial, or (2) alter the finding, maintaining the sentence, or, with or without altering the finding, 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), not so as to enhance the same ;

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This type of order is not permissible under the Code of Criminal Procedure because once retrial is ordered by the Appellate Court, the evidence already on record is deemed to be wiped out 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 its case. The facts in case State of Punjab v. Jaswant Singh (supra) relied upon by the learned Counsel for the State are entirely different and have no application to the facts of our case. That was a case where the two affidavits of the link witnesses were duly filed and accepted by the trial court. It was only at the appellate stage that the defects were pointed out which were purely technical and the Hon''ble Judges of the Division Bench allowed such defects to be removed by producing fresh affidavits of the very same witnesses. The case was remitted to the trial Magistrate for affording an opportunity to the prosecution either to file fresh affidavits of the link witnesses including the affidavits in place of Exs. PH and PI or to adduce witnesses in lieu thereof with opportunity to the defence to cross-examine such deponent or witnesses. The trial Magistrate was directed to decide the case afresh on merits. The observations in that case, therefore, have no application to the facts of our case.

In case Ukha Kolha v. The State of Maharashtra AIR 1963 S.C. 1531. the Hon''ble Judges of the Supreme Court observed:

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 by 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 evidence 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 again. An order of retrial wipes out from the record the earlier proceedings 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 reasons have been given by the learned Additional Sessions Judge for ordering a retrial. u/s 428 of the old Code if the Court of Appeal thinks that additional evidence is necessary to be taken, it may 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 necesssary, shall record its reasons, and may either take such evidence itself, or direct it to be taken by a Magistrate, or, when the Appellate Court is a High Court, by 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 by 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 power u/s 428, Code of Criminal Procedure, 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 witness 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.

For the reasons given above I am of the opinion that the orders of the learned Additional Sessions Judge are bad in law and have to be set aside.

In the result, the petitions are allowed, the orders of remand passed by the learned Additional Sessions Judge, Rupnagar are set aside and Cr. Appeals No. 33/1978 and 32/1978 are restored to their respective files. The learned Additional Sessions Judge will dispose of the appeals in accordance with law in the light of the observations made above. The parties through their counsel are directed to appear in the said Court on 17th May, 1979. As the appeals appear to be old ones the learned Additional Sessions Judge will see that these are disposed of at an early date.