Sarvjeet Singh And Another vs State Of Uttarakhand And Another

Sharad Kumar Sharma, J

The Revision, in question, has been preferred by the revisionists, wherein, they have questioned part of the impugned judgment dated 2nd July, 2019, as rendered by the Additional District and Sessions Judge (IInd), District Nainital, as rendered in Criminal Appeal No. 185 of 2015, Sarvjeet Singh and another Vs. State, limited to the extent that the Appellate Court while acquitting the appellants for commissioning of the offences under Sections 324, 325 and 504 of the IPC, had issued a direction to the Trial Court for retrying the Criminal Case No. 2644 of 2006, State Vs. Sarvjeet Singh and another from the stage of its proceedings under Section 313 Cr.P.C.

The argument which has been extended by the learned counsel for the revisionists is from the view point that when earlier too the case was concluded by virtue of an order of conviction dated 2nd July, 2015, the matter was put to challenge in an Appeal, being Criminal Appeal No. 109 of 2013, and the Appellate Court by virtue of the judgment dated 22nd July, 2015, had set aside the then judgment of the Trial Court dated 13th June, 2013 and had remitted the matter back to the Trial Court for its fresh trial. The said order dated 22nd July, 2015, has resulted into the revival of the proceedings of the Trial Court and, consequently, the Trial Court after considering the matter afresh had passed an order on 2nd September, 2015, by virtue of which, the revisionists were yet again were convicted for the offence under Section 325 I.P.C. and were sentenced to undergo simple imprisonment for a period of three years and a penalty of Rs.10,000/-each was imposed upon them and for the offence under Section 324 I.P.C., they were implicated for the sentence of one year of simple imprisonment, both the sentences were directed to run concurrently.

Questioning the judgment dated 2nd September, 2015, as rendered in Criminal Case No. 2644 of 2006, a Criminal Appeal, being Criminal Appeal No. 185 of 2015, Sarvjeet Singh and another Vs. State of Uttarakhand was preferred by the revisionists before the Additional District and Sessions Judge, Nainital, who after considering the respective arguments extended by the learned counsel for the parties and considering the ratio as dealt with in the said judgment, the revisionist had been acquitted, the revisionists but at the time of passing of an order of acquittal, the Appellate Court has simultaneously remitted back the matter once again of Criminal Case No. 2644 of 2006, to be tried afresh from the stage of 313 Cr.P.C.

Learned counsel for the revisionists submits that this direction issued on 2nd July, 2019 of re-initiation of a trial from the stage of 313 Cr.P.C. proceedings would be arbitrary and causing great hardship on the revisionists for the reason that in the earlier Appellate Court's judgment too, the matter was remitted back and the revisionist were made to face the apathy of litigation ever since the earlier order of remand till the present Appeal has been decided by the Appellate Court's judgement dated 02.07.2019, when yet again, remitting the matter back to the Trial Court for its re-trial would cause extreme hardship and harassment, as it would amount to successively forcing proceedings upon them as a consequent of the judgment dated 2.07.2019.

A very interesting argument, which has been raised by the learned A.G.A. is to the effect that the impugned order of 2nd July, 2019, there could not have been a direction of re-trial after the Court passes an order of "acquittal". His view is from the view point that a direction for re-trial could have been made only after the Appellate Court's order was set aside, the finding recorded while passing an order of conviction by the Trial Court and until and unless those findings, which are basis of conviction are quashed, re-trial cannot be permitted until and unless there is an acquittal made by the Appellate Court. This Court is not in agreement with the arguments as extended by the learned A.G.A. from the view point that for the purposes of remitting the matter for its re-trial before the Trial Court, it could only be done after quashing of the order of conviction and not after the order of "acquittal" of the convict is unsustainable because this Court is of the view that both the aspects, it is more or less the two faces of the same coin, where the Appellate Court when it quashes an order, it sets aside the finding recorded regarding the commission of an offence, which has been recorded by the learned Trial Court. Identically, when the Appellate Court passes an order of acquittal too, it would amount that the finding pertaining to the commission of an offence, which has resulted into an order of conviction and was made as the basis by the Trial Court's orders that too has been nullified by passing an order of acquittal by the Appellate Court dated 2nd July, 2019. Under both the circumstances, i.e. after acquittal or setting aside of order, has the same consequence in the eyes of law.

In fact, the implication of an order of acquittal or setting aside of an order of conviction are the two facets which have got an equal bearing and inference, as a result of the scrutiny of the judgment of the Trial Court. The learned A.G.A. has drawn the attention of this Court by arguing it on the basis of provision contained under Section 386 (b) (i) of the said section which is quoted hereunder :

"(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."

In fact, the Section 386 Cr.P.C. contains that when the Appellate Court after hearing the pleader and after going through the records, while exercising its appellate power under Sections 377 and 378 of the Cr.P.C. and when it appears to the Appellate Court, when more particularly, when it is hearing an appeal against an order of conviction, the procedural provision of Section 386 of the Cr.P.C., which is vested with the Appellate Court, it provides that if an appeal is against an order of conviction and the Appellate Court reverses the finding or sentence and acquits or discharge an accused, or orders him to be re-tried by the Court of competent jurisdiction, his contention is that when there is an order of acquittal, there cannot be a direction for simultaneous re-trial by the Trial Court. The said argument is not sustainable for the reason that if the dichotomy of Sub-clause (i) of Sub-section (b) of Section 386 of the Cr.P.C. is taken into consideration, absolutely it is a procedural provision which grants certain options and procedural latitude to the Appellate Court, when it is trying an appeal against an order of conviction and the option, which has been left open to the Appellate Court is; (1) the reversal of finding and the sentence as it has happened in the instant case earlier, when the Appellate Court had passed a judgment and has reversed the finding recorded by the Trial Court and has remitted the matter back for its re-trial.

In the situation, which is being dealt with in the instant case now is a circumstance which is contemplated under the subsequent provisions of Sub-clause (i) of Sub-section (b) of Section 386 of the Cr.P.C. The reversal of "finding" and "sentence", the Legislature has yet again used the word "and acquit or discharge". Meaning thereby, the use of the second word "and" between the finding of sentence "and" the acquittal or discharge, they are to be read distinctly in two different prospectives, that means the Appellate Court against an order of conviction can either reverse the finding or sentence and here the second use of word "and" would be read as "or acquit or discharge". So both the situation are being contemplated independently under Sub-clause (i) of Sub-section (b) of Section 386 of the Cr.P.C., that means in either of the circumstances, that is either in the situation of reversal of finding and sentence or on an acquittal or discharge of an accused, the Court has got a power to order for re-trial as it has been done in the instant case. Section 386 (b) of the Cr.P.C. in itself does not create a restriction that when there is an acquittal, which is contemplated under Sub-clause (i) of Sub-section (b) of Section 386 of the Cr.P.C., there cannot be a direction by the Appellate Court for a retrial by the Trial Court.

Thus, this contention of the learned counsel for the respondents is not acceptable by this Court that for the purposes of re-trial, the setting aside the sentence is a condition precedent in view of the language used under Section 386 of the Cr.P.C. and thus this Court is of the view that in view of the reasoning which has been assigned above, that even after passing of an order of acquittal or discharge of an accused person, in an appeal preferred against an order of conviction still, the Court can exercise its power of issuing the direction for re-trial of the offences by the learned Trial Court even after acquittal or discharge of the accused persons.

Another argument which has been extended by the learned A.G.A. is from the view point of the implications, which has been drawn by the provisions contained under Section 300 of Cr.P.C., which provides that once a person has been convicted or acquitted, he is not to be tried for the same offence, this provision has to be yet again read with the basic intention of the Legislature as to why Section 300 Cr.P.C. was incorporated in the Chapter XXIV of the Cr.P.C. Section 300 of the Cr.P.C. reads as under :

"300. Person once convicted or acquitted not to be tried for same offence. - (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub- section (1) of section 221, or for which he might have been convicted under sub-section (2) thereof.

(2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under sub- section (1) of section 220.

(3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last- mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted.

(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.

(5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first- mentioned Court is subordinate.

(6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897, (10 of 1897) or of section 188 of this Code.

Explanation.- The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section."

The provisions of Section 300 Cr.P.C., its intention was that it contemplates a situation that when and where a person has been tried once by the Court of competent jurisdiction to deal with the trial, in relation to the commission of offence and after conclusion of the trial, when the Court comes to the finding that the person accused is to be convicted or acquitted for an offence, while after passing of the order of conviction or of an acquittal, which remain in force shall not be liable to be re-tried again for the same offence. What is important here, under Section 300 Cr.P.C., which is to be considered is that the order "remains in force". Meaning thereby, if an order of conviction remains in force or if there is an acquittal in force, then only the retrial is not permissible but once the order of conviction has been resulted into an acquittal, meaning thereby, the conviction order does not remain in force at all and if it does not remain in force as a consequence of the acquittal, then the re-trial is not barred by the provisions as contained under Section 300 Cr.P.C.

Consequently, for the reasons assigned above, this Court is of the view that in view of the intention as expressed under Section 300 and 386 (b) (i) of Cr.P.C., in an event wherever the sentence or an acquittal has been set aside by the Trial Court, in that eventuality in either of the circumstances the power with the Appellate Court still vests to remit the matter back to the Trial Court to re-try of an offence subject to the condition, which is essential as a precedent that the order of conviction or of an acquittal should not sustain at the time when the order of re-trial is being made.

In that view of the matter, this Revision lacks merit and is accordingly dismissed.