Punjab-Haryana High Court
Balbir Singh vs State Of Haryana on 5 September, 2012
Author: Daya Chaudhary
Bench: Daya Chaudhary
Criminal Revision No.935 of 2012 1
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Revision No.935 of 2012
Date of decision: 05.09.2012.
Balbir Singh ..Petitioner
Versus
State of Haryana ..Respondent
CORAM: HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present: Mr. Ashish Pannu, Advocate,
for the petitioner.
Mr. Pradeep Virk, D.A.G., Haryana,
for the respondent - State.
Daya Chaudhary, J.
The present revision petition has been filed against the judgment dated 03.03.2012 passed by learned Additional Sessions Judge, Karnal setting aside the judgment of acquittal dated 20.09.2012 passed by Judicial Magistrate Ist Class, Karnal and also with a prayer to remand back the case to the trial Court.
Briefly, the facts of the case are that FIR No.7 dated 21.05.2001 was registered under Sections 419, 420, 467, 468, 471 and 120-B of Indian Penal Code at Police Station SVB, Rohtak against Balbir Singh and Pyare Lal. After investigation and on presentation of challan, charge was framed on 19.11.2003 against the petitioner. Ultimately, the petitioner-Balbir Singh was acquitted of the charge by the trial Court by giving benefit of doubt vide judgment dated 29.09.2010 passed by Judicial Magistrate Ist Class, Karnal. Criminal Revision No.935 of 2012 2
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State of Haryana filed appeal against the judgment of acquittal dated 29.09.2010, which was allowed vide judgment dated 03.03.2012 and acquittal of petitioner was set-aside and case was remanded back to the trial Court for fresh adjudication by making certain observations.
The present revision petition has been filed by the petitioner against the judgment of learned Additional Sessions Judge, Karnal vide which, the judgment of acquittal of trial Court was set- aside.
While issuing notice of motion in the case on 19.04.2012, following contention of learned counsel for the petitioner was recorded: -
" Learned counsel for the petitioner by relying upon the judgment of Hon'ble the Apex Court in Mohinder Singh and others Vs. State of Punjab and another 1985 AIR 383 inter alia contends that the order of remand passed by learned Additional Sessions Judge, Karnal is contrary to the ratio of aforesaid judgment as the proper course is either to decide the appeal or to send it for retrial and not to remand the case for arguments after re-appreciation of evidence.
xxx xxx xxx"
Learned counsel for the petitioner has argued that the Criminal Revision No.935 of 2012 3 ....
order of learned Additional Sessions Judge, Karnal is contrary to settled position of law as either the appeal should have been decided on merits or it should have been sent for re-trial as has been held by Hon'ble the Supreme Court in Mahinder Singh's case (supra).
Learned State counsel has not disputed the proposition of law as held by Hon'ble the Supreme Court in Mohinder Singh's case (supra).
The Hon'ble Supreme Court in Mahinder Singh's case (supra) held that order of remand is not proper as either the judgment of trial Court should have been decided on appreciation of evidence or being satisfied of correctness and acceptability of the evidence. The relevant portion of the judgment is reproduced as under: -
" Having gone through the entire record we are unable to agree with the High Court that there was any interpolation with respect to acquitted accused. It may be that various agencies may have expressed different views but by and large the final decision taken by the Under Secretary prevailed as a result of which the Public Prosecutor was authorised to file an appeal before the High Court against all the acquitted accused. In such a situation, therefore, the High Court erred in holding that the appeal presented by the State was not properly presented as against the said three accused, and it should have heard the appeal on merits alongwith the care of Mohinder Singh. As we intend to send the case back to the High Court for fresh decision in accordance with Criminal Revision No.935 of 2012 4 ....
law after taking into consideration the fact that the appeal by the State was properly constituted it is not necessary for us to give further details. We might, however, mention that the High Court instead of analysing and appreciating evidence, remanded the case back to the Sessions Judge for writing a proper judgment. In the first place, assuming that the High Court was right in thinking that the judgment suffered from tome infirmities and there were certain facts which were not taken into consideration they would not be grounds remanding the case to the Sessions Court to write a proper judgment. The High Court itself was a final court of facts and it was its duty to satisfy itself regarding the correctness and acceptability of the evidence. Thus, it was entirely open to the High Court to reappraise the evidence once again to consider the facts which may have been overlooked by the Sessions Judge and it should have decided the appeal itself instead of remanding the case to the Sessions Court. It being a moot point, we refrain from expressing any opinion on the question whether the first appellate court of fact can in a criminal case send the case back to the Sessions Court for writing a fresh judgment. The proper order in such a case should be either to decide the case itself or to send it for re-trial. The question of re-trial does not arise in the view we have taken in this case."
This view has further been held in judgment of Hon'ble the Supreme Court in case of Fahim Khan and another vs. State of Bihar, 2011 (13) SCC 147.
Criminal Revision No.935 of 2012 5
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It is clear from the observation of Hon'ble the Supreme Court that the proper course of action on the part of the Appellate Court was either to decide the case itself or to send for re-trial but to remand the case back to the trial Court is not justified and accordingly, the order of the High Court in that case was set-aside with a direction to re-hear the appeal on merits in accordance with law. It was also observed that the appeal be heard by different Bench of the High Court.
In view of the settled proposition of law and the facts as mentioned above, the present revision petition deserves to be allowed. The impugned judgment of Additional Sessions Judge, Karnal is set-aside and the Appellate Court is directed to re-hear the appeal on merits without being influenced by the observations made in the remand order. It would also be proper and in the interest of justice, if the appeal be heard by a different Judicial Officer.
05.09.2012 (DAYA CHAUDHARY) neetu JUDGE