Shiva Shankar and Others vs State of C.G.

Sanjay K. Agrawal, J.�Three accused persons namely Shivshankar, Shriram & Bunty @ Sadashiv were tried for the offences punishable under Sections 326 and 324 of the Indian Penal Code on a charge sheet filed by Station House Officer, Chhawni, District Durg on the charges that they have caused grievous hurt to Kunwardas and simple hurt to Urmila Bai, Santoshi and Shyamdas. Judicial Magistrate, First Class, Durg, by its order dated 28.04.2003, acquitted the present applicants namely Shiva Shankar & Shri Ram from the charges under Sections 326 & 324 of the Indian Penal Code, however, the trial Magistrate convicted the accused namely Bunty @ Sadashiv for offence under Section 324 IPC and sentenced to rigorous imprisonment for two years in each count. However, substantive sentences were ordered to run concurrently.

The core facts necessary for disposal of this revision are as under:--

(3.1) Convicted accused - Bunti @ Sadashiv preferred Criminal Appeal No. 192/2003 before the Court of Session.

(3.2) The Additional Sessions Judge, Durg by its order dated 10.09.2003, not only set aside the order of conviction, convicting accused Bunti @ Sadashiv, but also set aside the order of acquittal passed in favour of Shiva Shankar & Shri Ram, applicants herein.

(3.3) Questioning and impugning afore-stated order, present revision has been filed by the present applicants.

Appearing for the applicants, Shri Amiakant Tiwari, learned counsel would submit that the learned Sessions Judge has committed manifest legal error in setting aside the order of acquittal passed in favour of the applicants by learned Judicial Magistrate as neither complainant had filed appeal seeking leave under Section 378(4) of the Code nor State has preferred any appeal against the order of acquittal and, therefore, order of learned Sessions Judge remanding case for de novo re-trial is absolutely illegal and bad in law.

Appearing for the State, Shri N.K. Mehta, Panel Lawyer would support the order by submitting that the scope of revisional jurisdiction is limited and, as such, the revision petition deserves to be dismissed.

I have heard learned counsel appearing for the parties and considered the rival submissions made therein including order impugned with utmost circumspection.

Admittedly and indisputably, facts flowing from the record are as under:--

(i) The present applicants and one Bunty @ Sadashiv were tried jointly for the offence under Sections 326 & 324 of the Indian Penal Code.

(ii) After full-fledged trial, present applicants were acquitted by trial Magistrate for the charges offences.

(iii) Bunty @ Sadashiv was convicted by that Court for commission of offence under Section 324 IPC and he only preferred appeal under Section 374(2) of the Code before the Court of Session bearing Criminal Appeal No. 192/2003.

(iv) That, neither State preferred an appeal seeking leave to appeal under Section 378(4) of the Code nor complainant preferred any appeal against the order of acquittal passed by the said court in favour of present applicant.

In view of the aforesaid admitted facts, question for consideration would be whether in absence of appeal against the order of acquittal by the State or complainant, the Court of Session has jurisdiction to set aside the order of acquittal.

In State of West Bengal and Another Vs. Laisal Haque and Others, , their Lordships of the Supreme Court considering the case where an appeal was filed under Section 374(2) of the Code against the order of conviction and it has been held that in such appeal, the order of acquittal passed by the Court of Session against the acquitted accused persons could not be interfered with particularly in absence of an appeal preferred by the State against their acquittal. Para 10 of the report states as under:--

"10.......It failed to appreciate that in an appeal by the respondents under S. 374(2) of the Code, the order of acquittal passed by the learned Additional Sessions Judge as against the 26 other accused could not be interfered with. The High Court also failed to appreciate that there cannot be a piecemeal trial. The retrial directed by the High Court must necessarily revise the prosecution and must result in a trial de novo against the 42 accused. The 26 other accused acquitted by the learned Additional Sessions Judge were not impleaded as parties to the appeals before the High Court. In the absence of an appeal preferred by the State Government against their acquittal, the High Court could not under S. 386(b) on an appeal by the respondents against their conviction alter the acquittal nor can there be a splitting up of the trial. See State of Karnataka Vs. Narsa Reddy, "

Thereafter, their Lordships of Supreme Court again in case of Brathi alias Sukhdev Singh Vs. State of Punjab, has held that though in an appeal filed against the conviction, it is open to the appellate Court to find out on a reappraisal of the evidence that some of the accused persons have been wrongly acquitted, but it cannot interfere with the order of acquittal in absence of appeal by the State and effect of such finding has been held as under:--

"8..........When several persons are alleged to have committed an offence in furtherance of the common intention and all except one are acquitted, it is open to the appellate court to find out on a reappraisal of the evidence that some of the accused persons have been wrongly acquitted, although it could not interfere with such acquittal in the absence of an appeal by the State Government. The effect of such a finding is not to reverse the order of acquittal into one of conviction or visit the acquitted person with criminal liability. The finding is relevant only in invoking against the convicted person his constructive criminality."

Section 378 of the Code provides for appeal in case of acquittal.

Applicants were tried for the offences, upon the charge sheet filed by the State Government and against the order of acquittal, the appeal is maintainable by the State under Section 378 of the Code and leave is required to be taken from the High Court for filing the appeal, but no such appeal was preferred by the State Against the order of acquittal.

Likewise, complainant Kunwardas (P.W. 1) was entitled to prefer revision under Section 397/401 of the Code against the order of acquittal, but he did not do so.

Admittedly and indisputably, neither appeal as contemplated under Section 378 of the Code was filed by the State nor revision at the instance of complainant was filed before the Court of Session and, as such, the order acquitting the present applicant had become final, in absence of challenge to the order of acquittal in duly constituted appeal/revision, therefore, it was not open to the Court of Session to interfere with the order of acquittal, that too, in an appeal filed under Section 374(2) of the Code by convicted accused Bunty as the scope of that appeal is confined to the legality, validity and correctness of order of conviction against him. Thus, the learned Sessions Judge has committed grave illegality in setting aside the order of acquittal and directing for de novo trial against the applicants.

Concludingly, the civil revision is allowed. The impugned order against the present applicants directing de novo trial is set aside. It is held that order of acquittal passed in favour of the applicants shall remain effective, unless the same is questioned and set aside in duly constituted proceedings before the competent court of law. No order as to cost(s).