Allahabad High Court
Irfan Ahmad & Ors. vs State Of U.P. on 7 February, 2013
Author: Visnhu Chandra Gupta
Bench: Visnhu Chandra Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
AFR
Reserved
HIGH COURT OF JUDICATURE AT ALLAHABAD,
LUCKNOW BENCH, LUCKNOW
Criminal Revision 123 of 2012
1. Irfan Amhad, S/O Late Shah Mohammad,
2. Mohammad Islam, S/O Late Shah Mohammad,
3. Smt. Anwari, W/O Late Shah Mohammad,
4. Km. Raquiya, D/O Late Shah Mohammad,
All R/O Village Meerganj Purwa, H/O Basehia, P.S. - Jarwal Road, District - Bahraich.
------Revisionists -: Versus:-
State of U.P. .............. Opposite Party
Petitioner's Counsel :- Mohd. Abdul Rafey Siddiqui, Advocate
Mohd. Rehan Ahmad Siddiqui, Advocate
Respondents' Counsel :- Govt. Advocate,
Hon'ble Visnhu Chandra Gupta,J.
J U D G M E NT (1) In this revision u/s 397/401 of Criminal Procedure Code (for short 'Cr.P.C.') revisionists have prayed to set aside the impugned direction issued to learned Magistrate concerned to pass fresh judgment in pursuance of order passed by the learned Appellate Court vide its judgment and order dated 23-3-2012.
(2) The brief facts of this case for deciding the revision are that Irfan Ahmad, Mohammad Israil, Smt. Anwari, Mohd. Islam, Km. Ruqaiya and Habib were accused persons in Criminal Case No. 2924 of 2009, arising out of case Crime No. C-10 of 2003. After trial of the aforesaid case these persons were convicted u/s 498A of Indian Penal Code (for short 'IPC') with simple imprisonment of 2 years and a fine of Rs. 1,000/- each. These persons were also convicted under section 3 of Dowry Prohibition Act and sentenced with simple imprisonment of one year each. In case of default of payment of fine, these accused persons were directed to undergo a further imprisonment of one month. The judgment passed by Ist Addl. Chief Judicial Magistrate, Gonda convicting and sentencing the revisionists was challenged in appeal before the Court of Sessions. Out of six only five persons challenged the conviction and sentence awarded against them by preferring the appeal having Criminal Appeal No. 24 of 2011. The name of appellants are Irfan Ahmad, Mohammad Islam, Smt. Anwari, Km. Ruqaiya and Habib. It appears from perusal of the order of Appellate Court that Habib died during the pendency of appeal and the case stand abated against him. However, it appears that Mohd. Israil did not prefer any appeal. The Appellate Court considered the submissions of both the side and allowed the appeal after setting aside the judgement dated 11.3.2011. The matter was remanded back to decide the case in the light of the direction issued by the Appellate Court after giving opportunity of hearing to accused persons and prosecution.
(3) From perusal of the impugned order of the Appellate Court it appears that accused Israil did not face trial but the learned Magistrate passed the order of conviction against Israil also. It was further observed by the Appellate Court that the charge for the offence u/s 323 I.P.C.was also framed against the accused persons but no finding had been recorded regarding acquittal or conviction of the accused persons u/s 323 I.P.C. It was further observed in respect of the accused Israil that during trial he absconded and his file was separated, consequently charges were not framed against Israil. Therefore, the learned Trial Court has committed an error convicting Israil without trial and his conviction cannot sustain. Consequently, without going into the merit of the case or making any comment on merit the Appellate Court straight way sent back the matter after setting aside the judgment of the Trial Court and directed to pass an appropriate order after giving opportunity of hearing to both the sides.
(4) Learned counsel for the revisionist after relying upon the judgment of Hon'ble Apex Court reported in AIR 1963 (SC) 1531 (Ukha Kolhe Vs. State of Maharashtra) submitted that order of retrial to fill-up the lacuna by means of taking additional evidence would not be proper and on this strength it has been submitted that the order of remand is not sustainable.
(5) After relying upon the judgment of Mysore High Court reported in 1961(1) Crl.L.J. 398 (State Vs. Ranganagouda Venkanagourda Thimmanagpudar ), the learned A.G.A.pointed out that the retrial is permissible not only from the point of time at which the error in trial has been committed. It can even proceed from earlier stage in a particular case.
(6) I have considered the submission of both the side and the authorities relied upon by the parties and also perused the material available on record.
(7) From perusal of the order under challenged it reveals that the Appellate Court directed the Trial Court to record the finding in regard to the charge framed under section 323 I.P.C. The appellate Court also asked the Trial Court that when Israil was not tried by the court how the conviction was recorded and therefore, the Appellate Court after setting aside the entire judgment without touching the merit of the case sent back the matter for deciding the matter on the basis of the existing evidence.
(8) If the Appellate Court was of the view that no finding has been recorded by the Trial Court for charge u/s 323 I.P.C., he may pass an order directing the trial court to give its finding on charge framed u/s 323 I.P.C. keeping the appeal pending in its court and after receipt of the finding given by the Trial Court, the appeal as a whole may be decided.
(9) So far trial of Israil is concerned it is evident from the record of the case that he was not tried, no charge has been framed against him because his trial was separated. Therefore, recording of conviction against him by the Trial Court can be rectified by the Appellate Court and for that the remand of the matter was not at all necessary.
(10) Section 386 of the Criminal Procedure Code gives ample power to Appellate Court to make any amendment or pass any consequential or incidental order that may be just and proper because, clause (e) of Section 386 applies in all the cases provided in Clause (a)(b)(c) and (d), i,e., when Appellate Court dealing with appeal against an order for acquittal or considering the appeal from conviction or dealing an appeal for enhancement of sentence or in any appeal from any other order.
(11) In view of aforesaid legal aspect of the matter this court is of the view that Appellate Court has committed manifest error of law while setting aside the finding of conviction without going through the merit of the case and in directing the Trial Court to re-write the Judgment. In such situation this court is of the view that if the Trial Court has not given any finding in respect of the charge framed u/s 323 I.P.C. the Appellate Court may sent back the record of the Trial Court to give a finding in respect of guilt or of innocence of the accused, as the case may be, on the basis of material available on record and after receipt of the finding of the Trial Court u/s 323 I.P.C. the Appellate Court should decide the whole appeal after considering the merit of the case.
(12) So far as conviction of Irfan is concerned the Appellate Court was ample power to set aside that portion of the judgment by which the conviction of Irfan was recorded without trial.
(13) Consequentially, the revision is allowed. Impugned order dated 23.3.2012 passed by Special Judge, EC Act, Gonda in Criminal Appeal No. 24 of 2011 (by which judgment of Trial Court dated 10.03.2011 passed by Addl Chief Judicial Magistrate, Ist, Gonda in Crl. Case No. 2924 of 2009 was set aside) is set aside. The matter is remanded back to the Appellate Court with direction to restore the Appeal on its own number. After re-registering the appeal on its own number the appellate court shall send back the record to the Trial Court to record the finding in respect of charge framed against accused persons under section 323 I.P.C. The Trial Court shall send back the record with finding recorded in respect of charge u/s 323 I.P.C. to the Appellate Court. After receipt of the finding recorded by the Trial Court, the Appellate Court shall decide the Appeal on merit after giving opportunity of being heard to accused persons and prosecution.
(14) The appellants shall remain on bail during pendency of appeal in terms of the order earlier passed. If bonds are cancelled the appellants may file the bonds as per order of the appellate court.
(15) The appellants / accused shall appear in person before appellate court on 6th of March, 2013.
Order Date : 7th February, 2013
S. Kumar. (Mr. Justice Vishnu Chandra Gupta)