Preetam Chouksey vs State of M.P.

U.C. Maheshwari, J.—The applicant/ accused has preferred this revision challenging the sustainability of judgment dated 14.10.2011 passed by the Sessions Judge, Sagar in Cr. Appeal No. 264/2011 whereby allowing the appeal of the applicant in part and after setting aside the judgment dated 29.6.2011 passed by Judicial Magistrate Sagar in Criminal Case No. 473/ 2005 acquitting the applicant from the charge of Section 409, 420, 468 and 120B of IPC, the case has been remitted back with a direction to decide afresh after proper appreciation of evidence led by the parties on record. The applicant''s counsel after taking me through the impugned judgment of the Courts below along with the provision of Section 386 of Cr.P.C. argued that in the available circumstances the provision of aforesaid Section 386 of Cr.P.C. was not available with the appellate Court for remitting back the matter to the trial Court after setting aside the judgment of such Court to decide afresh by re-appreciation of the evidence; as such re-appreciation of evidence could be carried out by the appellate Court itself instead to remand the matter to the trial Court. In continuation he also said that the appellate Court being the Court of facts can also re-appreciate the available evidence and for that purpose remitting back the case to the trial Court is not necessary. With these submission, he prayed for setting aside the impugned judgment of the appellate Court by admitting and allowing this revision.

Keeping in view the arguments advanced by the applicant''s counsel, I have carefully gone through the judgment of the trial Court as well as impugned judgment of the appellate Court remitting back the matter to the trial Court with a direction to decide afresh in accordance with the direction given in paragraph 15 of the impugned judgment.

Before giving any finding in the matter as ready reference, I would like to produce the provision of Section 386 of Cr.P.C. by which the appellate Court is empowered to remand the matter with some direction to decide afresh, the same are read as under :

Powers of the Appellate 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 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-

(a) In an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;

(b) In an appeal from a conviction-

(i) Reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a court of competent jurisdiction subordinate to such appellate Court or committed for trial, or

(ii) Alter the finding, maintaining the sentence, or

(iii) With or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;

(c) In an appeal for enhancement of sentence-

(i) Reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a court competent to try the offence,- or

(ii) Alter the finding maintaining the sentence, or

(iii) With or without altering the finding, after the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same;

(d) In an appeal from any other order, alter or reverse such order; (3) Make any amendment or any consequential or incidental order that may be just or proper.

Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement:

Provided further that the Appellate Court shall not inflict greater punishment for the offence, which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal.

Keeping in view the aforesaid provision after going through the judgment of the trial Court as well as the appellate Court, I have found while deciding the case by the trial Court the material evidence of some witnesses namely Shikhar Chand (P.W. 1), Aurn Kumar Pataskar (P.W. 2), Rajendra Kumar (P.W. 3), Nandram Gupta (P.W. 4) Shyamsunder Choubey (P.W. 5) have not been appreciated and considered with proper approach, even the exhibited documents were not taken into consideration with proper approach and the applicant along with co-accused were acquitted from the alleged offence of Section 409, 420, 468 and 120B of IPC. It appears that considering all such circumstances the appellate Court by invoking the powers vested in it u/s 386 of Cr.P.C. after setting aside the impugned judgment of the trial Court has remitted back the matter to such Court with a direction to decide afresh after re-appreciation of available evidence in which some of the witnesses have made direct allegations with respect of alleged offence committed by the applicant along with co-accused. On joint reading of both the judgments I have not found any error in the judgment of the appellate Court, as such the same appears to be passed after taking into consideration the entire factual matrix of the case along with the recorded evidence and exhibited papers, in the lack of specific finding of the trial Court on the evidence the appellate Court did not found fit to consider the matter itself at first instance and appreciate such evidence available on the record. Therefore, to appreciate such part of the evidence of the examined prosecution witnesses, the case has been remitted back to the trial Court so the present applicant subject of decision of the trial Court on arising the occasion may file the appeal again and contest the matter in appeal also on facts as well as law. In such premises the impugned judgment of the appellate Court appears to be under the vested jurisdiction of such Court enumerated under the aforesaid Section 386 of Cr.P.C. Accordingly, I have not found any perversity, illegality, irregularity or anything against the propriety of law in the impugned judgment requiring any interference at this stage under the revisional jurisdiction of this Court. Thus, this revision being devoid of any merits is dismissed at the initial stage of motion hearing on admission. The revision is dismissed as indicated above.