Madhya Pradesh High Court
Raja @Sumit vs The State Of Madhya Pradesh Thr on 29 August, 2017
(1) CRR 229/2017
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
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SB:- Present :- Hon'ble Shri Justice G. S. Ahluwalia
CRR 229/2017
Raja alias Sumit & Others
Vs.
State of MP
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Shri DP Singh, counsel for the applicants.
Shri Prakhar Dhengula, Public Prosecutor for the respondent/
State.
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ORDER
(Passed on 29 /08/2017) This Criminal Revision under Section 397,401 of Cr.P.C. has been filed against the judgment dated 7-2-2017 passed by Special Judge, Shivpuri in Criminal Appeal No. 0500212/2016 arising out of judgment and sentence dated 15-6-2016 passed by J.M.F.C. Shivpuri in Criminal Case No. 683/2012 by which the Appellate Court in exercise of powers under Section 386 of Cr.P.C. has remanded the Trial with a direction to the Trial Court to take further action as directed by the Appellate Court.
(2) The necessary facts for the disposal of the present criminal revision in short are that a charge sheet was filed against the applicants for offence under Sections 294,342,323,506 Part II of I.P.C. on the allegation that on 23-2-2012 at about 11 A.M., the applicants had abused the complainant Akash Sindhi, took him in Bolero Jeep and assaulted him as well as extended threat to life. (3) The Trial Court by order dated 28-11-2013 framed charges under Sections 294,342,323, 506 Part II of I.P.C. (4) The Trial Court after recording evidence and hearing both the parties, convicted the applicants for offence under Sections 323 and 342 of I.P.C. and sentenced them to undergo the rigorous imprisonment of 8 months and a fine of Rs. 500/- with default imprisonment for each of the offence.
(2) CRR 229/2017(5) Being aggrieved by the judgment and sentence passed by the Trial Court, the applicants filed a Criminal Appeal. The Appellate Court by order dated 7-2-2017 set aside the Judgment and Sentence passed by the Trial Court by holding that it appears that offence under M.P.D.V.P.K. Act was also made out, but unfortunately, neither the police investigated the matter from that point of view, nor the Trial Court considered this aspect either while framing charge or at a later stage, therefore, remanded the case back to the Trial Court to proceed further in accordance with the directions given by the Appellate Court.
(6) Challenging the order of the Appellate Court, it is submitted by the Counsel for the applicants, that the remand of the trial for denovo trial is bad. Merely because Shivpuri has been declared as Dacoity affected area, it would not mean that in every case, offence under Section 11/13 of M.P.D.V.P.K. Act should also be registered. M.P.D.V.P.K. Act is a Special Act, brought in force to curb the menace of organized and unorganized gangs of dacoits effectively and it was felt essential to break the chain of vested interests assisting, or associated with such gangs and to curb and control them effectively. It is further submitted that power under Section 386 of Cr.P.C. should be exercised only in exceptional cases where the Appellate Court is satisfied that the omission or irregularity has occasioned in failure of justice. It is submitted that in absence of any such findings, the order of remand is bad in law and hence liable to be set aside.
(7) Per contra, the Counsel for the State supported the order passed by the Appellate Court.
(8) Heard the learned Counsel for the parties. (9) The Supreme Court in the case of Ajay Kumar Ghoshal Vs. State of Bihar, reported in 2017(2) M.P.L.C. 28 (S.C.) has held as under :-
''11. Though the word "retrial" is used under Section 386(b)(i) Cr.P.C., the powers conferred by this clause is to be exercised only in exceptional cases, where the appellate court is satisfied that the omission or irregularity (3) CRR 229/2017 has occasioned in failure of justice. The circumstances that should exist for warranting a retrial must be such that where the trial was undertaken by the Court having no jurisdiction, or trial was vitiated by serious illegality or irregularity on account of the misconception of nature of proceedings. An order for retrial may be passed in cases where the original trial has not been satisfactory for some particular reasons such as wrong admission or wrong rejection of evidences or the Court refused to hear certain witnesses who were supposed to be heard.
12. 'De novo' trial means a "new trial" ordered by an appellate court in exceptional cases when the original trial failed to make a determination in a manner dictated by law. The trial is conducted afresh by the court as if there had not been a trial in first instance. Undoubtedly, the appellate court has power to direct the lower court to hold 'de novo' trial. But the question is when such power should be exercised. As stated in Pandit Ukha Kolhe vs. State of Maharashtra (1964) SCR 926, the Court held that:
"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 re-trial wipes out from the record the earlier proceeding, 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."
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17. After considering the question a "speedy trial" and "fair trial" to a person accused of a crime and after referring to a catena of decisions and observing that guiding factor for retrial must always be demand of justice, in Mohd. Hussain @ Julfikar Ali vs. State (Govt. of NCT of Delhi) (2012) 9 SCC 408, this Court held as under:-
"41. 'Speedy trial' and 'fair trial' to a person accused of a crime are integral part of Article 21. There is, however, qualitative difference between the right to speedy trial and the accused's right of (4) CRR 229/2017 fair trial. Unlike the accused's right of fair trial, deprivation of the right to speedy trial does not per se prejudice the accused in defending himself. The right to speedy trial is in its very nature relative. It depends upon diverse circumstances. Each case of delay in conclusion of a criminal trial has to be seen in the facts and circumstances of such case. Mere lapse of several years since the commencement of prosecution by itself may not justify the discontinuance of prosecution or dismissal of indictment.
The factors concerning the accused's right to speedy trial have to be weighed vis-à-vis the impact of the crime on society and the confidence of the people in judicial system. Speedy trial secures rights to an accused but it does not preclude the rights of public justice. The nature and gravity of crime, persons involved, social impact and societal needs must be weighed along with the right of an accused to speedy trial and if the balance tilts in favour of the former the long delay in conclusion of criminal trial should not operate against the continuation of prosecution and if the right of accused in the facts and circumstances of the case and exigencies of situation tilts the balance in his favour, the prosecution may be brought to an end. These principles must apply as well when the appeal court is confronted with the question whether or not retrial of an accused should be ordered.
42. The appellate court hearing a criminal appeal from a judgment of conviction has power to order the retrial of the accused under Section 386 of the Code. That is clear from the bare language of Section 386(b). Though such power exists, it should not be exercised in a routine manner. A 'de novo trial' or retrial is not the second trial; it is continuation of the same trial and same prosecution. The guiding factor for retrial must always be demand of justice.Obviously, the exercise of power of retrial under Section 386(b) of the Code, will depend on the facts and circumstances of each case for which no strait jacket formula can be formulated but the appeal court must closely keep in view that while protecting the right of an accused to fair trial and due process, the people who seek protection of law do not lose hope in legal system and the interests of the society are not altogether overlooked."
(10) In the present case, the Appellate Court has observed that it is clear from the allegations that the complainant was taken on Bolero jeep from his shop to a place near Saint (5) CRR 229/2017 Charles School therefore, offence under Section 363 and 364 of I.P.C. was also made out. Shivpuri has been declared as Dacoit affected area, therefore, the provisions of said Act were also attracted, however, neither the police took note of that while investigating the matter, nor the Trial Court took note of the said fact, either while framing charge or thereafter. Accordingly, the judgment and sentence passed by the Trial Court was set aside and the matter has been remanded back.
(11) Section 2(b) of M.P. Dakaiti Aur Ayapharan Prabhavit Kshetra Adhiniyam, 1981 defines "Dacoit" which reads as under :
"2.Definitions.- In this Act, unless the context otherwise requires,-
(a) xxxxxxx
(b) "dacoit" in relation to a dacoity and kidnapping affected area, means a person who commits or has committed an offence punishable under Section 395 of the Indian Panel Code (XLV of 1860) or a specified offence, or as the case may be, a person accused of commission of any such offence;"
(12) Thus, the question for determination is that whether the allegations made against the applicants, prima facie make out an offence under Section 363 and 364 of I.P.C. or not? (13) The complainant Akash Sindhi, who is aged about 20 years has stated in the F.I.R. Ex. P.1 that on 22-2-2012, he had gone to attend the marriage function of his friend Devendra Singh Dhakad, where he had some quarrel with applicant Raja Sengar and on that issue, Raja Sengar along with his three relatives came to his shop and started abusing him and took him in his bolero jeep and assaulted him and deboarded him near Saint Charles School and they were also extending the threat to his life.
(14) Section 363 of I.P.C. provides for Punishment for kidnapping. Kidnapping has been defined in Section 359,360 and 361. As the complainant was more than 16 years of age, therefore, there is no question of kidnapping and at the most it can be said that he was abducted. Abduction has been (6) CRR 229/2017 defined in Section 362 of I.P.C. Under these circumstances, no offence under Section 363 of I.P.C. is made out. So far as the offence under Section 364 of I.P.C. is concerned, it is no where mentioned in the F.I.R. Ex. P.1 that the complainant was abducted with an intention to murder. Therefore, neither an offence under Section 363 of I.P.C. nor offence under Section 364 of I.P.C. is made out. The applicants were tried for offence under Sections 294,342,323,506 Part II of I.P.C. and were convicted under Sections 323 and 342 of I.P.C. None of the offence for which the applicants were tried are specified offences under the M.P.D.V.P.K. Act. Further, it is clear from the F.I.R. that the entire incident took place because one day prior to the date of incident, the complainant had picked up a quarrel with the applicant Raja Sengar in the marriage function of his friend. As already pointed out, the M.P.D.V.P.K Act is an enactment to curb the menace of Dacoity and kidnapping in affected areas of the State to protect the public against organized gangs of dacoits. It deals with special types of people i.e., dacoits and their associates in affected areas in respect of specified offences. This Court in the case of Gorelal Gupta Vs. State of M.P. Reported in 1984 MPLJ 361 has held as under :-
"9.It is to be considered whether provisions of the Adhiniyam are discriminatory and hit by Article 14 of the Constitution. The object of the Adhiniyam is for curbing the menace of organised and unorganised gangs of dacoits effectively, it is essential to break the chain of vested interests assisting or associated with such gangs. The preamble says this is an Act to make provisions for specifying certain offences in the dacoity and kidnapping affected areas of Madhya Pradesh and in respect of punishment and speedy trial thereof in order to curb effectively the commission of such specified offences and to make provision for attachment of properties acquired through the commission of specified offences and for matters connected therewith or incidental thereto. So this is an enactment to curb the menace of dacoity and kidnapping in affected areas of the State in order to protect the public against organised gangs of dacoits. So it deals with (7) CRR 229/2017 special types of people i.e. dacoits and their associates in affected areas in respect of specified offences. It has come to be realised that to stop the menace of dacoity and kidnapping more stringent and speedy measures are necessary and that is why this special enactment. Differential treatment does not 'per se' constitute violation of Article 14 of the Constitution; it denies equal protection only when there is no reasonable basis for differentiation: Ammerunnissa vs. Mahboob Begum AIR 1953 SC 91. Where a statute providing for a more drastic procedure different from the ordinary procedure covers the whole field covered by the ordinary procedure without any guidelines as to the class of cases in which either is to be resorted to, the statute will be hit by Article 14. Even a provision of appeal will cure the defect. If guidelines can be inferred the statute will not be hit by Article
14. Then again where the statute itself covers only a class of cases, the statute will not be bad: M. Chaganlal v. Greater Bombay Municipality , AIR 1967 SC 2009. The classification provided for by the Special Courts Bill is valid and no objection can be taken.The preamble says that it is imperative for functioning of parliamentary democracy and the institutions created by or under the Constitution that commission of such offences during emergency should be judicially determined with utmost dispatch when committed by persons by misusing their high public or political office. Persons who are singled out by the bill for trial before the special courts possess common character and those who fall outside that group do not possess them In re: Special Courts Bill, 1978 AIR 1979 SC 478. Therefore, provisions of the Adhiniyam are not discriminatory and are not hit by Article 14."
(15) "Retrial" should be ordered only in exceptional cases, where the omission or irregularity has occasioned in failure of justice. Unless and until, the Appellate Court comes to a conclusion that the Trial Court had no jurisdiction or the trial was vitiated by serious illegality or irregularity on account of misconception of nature of proceedings, the retrial cannot be ordered.
(16) In the present case, except by holding that offence under Sections 363 and 364 of I.P.C. also appears to be made (8) CRR 229/2017 out, and since, M.P.D.V.P.K Act is in force in Shivpuri District, therefore, the applicants should have been charged for offence under M.P.D.V.P.K Act, nothing has been mentioned by the Appellate Court pointing out as to how the omission in framing of charge has occasioned in failure of justice. When the police did not think it proper to file the charge sheet for offence under Section 11/13 of M.P.D.V.P.K. Act, as well as the Trial Court did not consider it proper to commit the case to the Special Court for trying offence under Section 11/13 of M.P.D.V.P.K. Act, this Court is of the considered opinion, that under the facts and circumstances of the case, the Appellate Court committed an error in remanding the case back to the Trial Court for proceeding in accordance with the observations made by the Appellate Court. Accordingly, the order dated 7- 2-2016 passed by the Appellate Court is set aside. (17) So far as the merits of the case are concerned, the Appellate Court has not considered the merits of the case in detail. Thus, under the facts and circumstances of the case, it would be apposite to remand the case back to the Appellate Court to decide the appeal on merits.
(18) Accordingly, the Judgment dated 7-2-2017 passed by the Court of Special Judge, Shivpuri in Criminal Appeal No. 0500212/2016 is set aside and the matter is remanded back to the Appellate Court to decide the appeal on merits. The applicants are directed to appear before the Appellate Court on 11-9-2017.
(19) The Revision succeeds and is hereby allowed. (20) Let a copy of this order be sent to the Appellate Court for necessary information and compliance.
(G.S. Ahluwalia) Judge 29/08/2017 *MKB*