Patna High Court
Pannalal Kedia vs Nebi Singh And Ors. on 15 September, 1967
Equivalent citations: 1968CRILJ1524
ORDER K.K. Dutta, J.
1. This application in revision arises out of an order of acquittal passed by Mr. Shambhunath Sinha, Munsif-Magistrate, first class, Khagaria, in a case in which the members of the opposite party were put on trial on a charge under Section 379 of the Penal Code, while some of them were further charged under Section 143 and the rest under Section 144 of the Code.
2. The occurrence is alleged to have taken place shortly after day break on the 10th December 1961 in tola Akha of village Mali, which is about eleven miles from police station Chautham, in the district of Monghyr. The fardbeyan of Hakkar Mian (P.W. 7), who was an employee of the present petitioner; Pannalal Kedia, who has been examined in the case as P.W. 6 in the trial Court, was recorded at Baldaur police out-post at 9 A. M. on the 14hh December 1981.
3. The prosecution case was that plots 2382, 3181, 3192 and 3202 in the aforesaid Village belonged to the petitioner, who lives in village Sohbarsa in the district of Saharsa, and they were looked after by Hakkar Mian (P.W. 7). Paddy hart been grown en these plots on behalf of the petitioner. It was further alleged that, on the day of occurrence, the members o£ the opposite party, with a mob of fifty to sixty persons, who were armed with various weapons, came to the land of the petitioner and began to cut the paddy growing thereon. P.W. 7, who was then sowing wheat in another field at a short distance from the aforesaid land, went there and protested; but he was threatened by the members of the opposite party and their associates.
Thereafter, the paddy crop growing on parts of the aforesaid four plots measuring four and a half bighas was harvested and looted away by the members of the opposite party. Hakkar Mian (P.W. 7) then went to his master's police in village Sonbarsa; but his master was absent from the village. It was on the I3ih December 1961 when his master returned and, on learning of the occurrence, directed P.W. 7 to go to the police station and report about the occurrence Thereafter, P.W. 7 went to Baldaur police outpost, where his fardbeyan was recorded at about 9 A.M. on the 14th December 1961.
4. The defence of the accused persons in the Court below was that one of the plots in question, namely, plot No. 3202, belonged to one of them and paddy was grown thereon on his behalf and that the lands from which the paddy was alleged to have been looted away had never been in possession either of P.W. 6 or P.W. 7.
5. The case was initially tried by Mr. B.N. P. Shrivastave, Munsif-Magistrate, second class. Khagaria, and, by his judgment dated the 22nd February 1981, he accepted the prosecution case and convicted and sentenced all the accused persons under Section 379, some of them under Section 148 and the rest under Section 144 of the Penal Code. On appeal by the accused persons, their convictions and sentences were Bet aside by Mr. B.B. Prasad, First Assistant Sessions Judge, Monghyr, by his judgment dated the 18th (sic) 1965 and the case was remanded back to the trial Court for a fresh decision in accordance with law after giving a clear finding on the question as to whether the plots in question were in possession of the petitioner and the paddy crop alleged to have been harvested and taken away by the accused persons had been grown at the instance of the petitioner. It was, further, directed that the explanation given for the delay in lodging the fardbeyan should also be couriered by the Munsif-Magistrate in coming to his findings.
6. After the above order of remand, the case was heard by another Munsif-Magistrate, Mr. Shambhu Math Sinha who, by his judgment dated the 18th September 1965, has come to the finding that the prosecution has not been able to prove positively that the fields of occurrence had been in possession of P.W 6 or that the crop in question had been grown by P.W. 6 or his servant or bataidar. It has also been observed that the explanation given by the petitioner for the delay in reporting to the police was also not satisfactory. On a consideration of these aspects and the other materials on record, it his been held that the prosecution has failed to prove beyond reasonable doubt that the accused persona had committed the offences and, accordingly, they were acquitted of the various charges framed against them.
7. The only point that has been urged before me on behalf of the petitioner is that the order which was passed by Mr. R.R. Prasad, First Assistant Sessions Judge Monghyr. on the 18fch June 1965 remanding the case for a fresh decision by the trial Court was without jurisdiction as no such order could have been passed by him tinder the provisions of Section 423 of the Criminal Procedure Code and, as such, the entire proceedings in the trial Court after the remand order and the judgment of acquittal passed by the trial Court are altogether without jurisdiction.
8. A preliminary objection having been raised in the case on behalf of the opposite party on the ground of limitation, a petition under Section 5 of the Limitation act has been filed on behalf of the petitioner for the condonation of the delay in filing the present application in revision. It appears that, after the judgment of the trial Court dated the 18th September 1965, acquitting all the accused persons, the present petitioner lad application in revision before this Court on the 21st December 1965; but it was ultimately with drawn on the 13th January 1966. The withdrawal was made because the petitioner had not preferred any petition before the Sessions Court for reference to this Court after the order of acquittal and it was not the practice of this Court to entertain an application in revision unless the party first moved the Sessions Judge against such an order.
The case of the petitioner is that, after the withdrawal of the criminal revision filed in this Court, he filed criminal Revision No. 31 of 1966 in the Court of the Sessions Judge, Monghyr on the 11th February 1966 and it was summarily dismissed on that very day on the ground that it was barred by limitation. Thereafter, the present application in revision was filed on the 22nd February 1966. In the petition under Section 5 of the Limitation act, no explanation has been given with regard to the gap of twenty-four days in between the date of withdrawal of the previous application in revision filed in this Court, that is, the 18th January 1966, and the filing of the application for reference to this Court before the Sessions Judge on the 11th February 1966.
It was, however, urged before me that after the withdrawal of the previous application in revision filed in this Court, some time was spent in communicating about it to the petitioner and thereafter, in arranging for the filing of a fresh petition before the Sessions Judge and this expiation appears to be quite plausible. The time taken in between filing the present application in revision, which was filed on the 22nd February 1966, and the dismissal of the application in revision by the Sessions Judge on the 11th February 1966 w is only eleven days and, in the circumstances of this case, this delay cannot be said to be inordinate as a fresh application had to be drafted and then filed in this Court. Considering all these aspects, the delay in tiling this application in revision appears to have been sufficiently explained and the petition filed under Section 5 of the Limitation act is, accordingly, allowed and the delay is condoned.
9. In support of the contention raised on behalf of the petitioner that the order passed by the appellate Court in remanding the case for a fresh decision is altogether without jurisdiction, reliance was placed on a decision of the Calcutta High Court reported in (1905) ILR 82 Cal 1069, Tara Chand Singh v. Emperor and a decision of the Madras High Court reported is AIR 1920 Mad 171, In re Karuppiah Pillai. So far as the Madras case is concerned, it appears that the facts there were quite different from those is the present case. In that case, the Sessions Judge, who heard the appeal, did not flat aside the conviction of the accused persons but kept the appeal pending before him while reminding the case with the direction that the trial Court should write out a fill Judgment dealing with All the facts and law, as it appeared to the Sessions Judge that the judgment written by the trial Court did not deal with all the points properly.
It was held in that case that the correct procedure was to accept the appeal and to remand the ease for hearing de novo. As already mentioned, in the present case, the appellate Court did not keep the appeal pending before it but had allowed the appeal and had set aside the convictions and sentences and bad remanded the case for a fresh decision in accordance with law. As such, the decision in the Madras case does not give any support to the contention raised on behalf of the petitioner. So far as the Calcutta case is concerned, it appears that the Sessions Judge had Demanded the case on the ground that the Deputy Magistrate who tried the case did not seem to have at all considered the evidence and weighed it with reference to the occurrence and had not come to any finding as regards the common object of the unlawful assembly and the possession of the property.
It was held by the High Court, that, if the Deputy Magistrate's decision was not so satisfactory as the Sessions Judge thought it should have been, it was the duty of the Sessions Judge in appeal to go into the whole facts fully and dispose of the appeal and he could not devolve this duty on the Deputy Magistrate. An observation was also made in this case that the Sessions Judge had no jurisdiction under any section of the Code of Criminal Procedure to pass the order which he did. The decision in this case gives support to the contention raised on behalf of the present petitioner that the order as passed by the Assistant Sessions Judge in the present ease was not a proper order and he ought to have himself decided the relevant points in the appeal on the basis of the materials which were already on the record.
It must, however, be pointed out that under Section 423, Criminal P.C., in an appeal from a conviction, the appellate Court has the power to reverse the findings and set aside the conviction and sentence and order the accused person to be retried by a Court of competent jurisdiction subordinate to auth appellate Court. In view of these provisions, it is manifest that an appellate Court has cower in an appropriate case to order retrial of the accused after getting aside the convictions and sentences a3 recorded by the trial Court. When a retrial is ordered, it does not necessarily follow that there must be a de novo trial from the very beginning and it all depends an the circumstances of each case as to from what stage the further trial should be ordered to be conducted.
For example, if, in a case the accused person is found by the appellate Court to have been denied by the trial Court the opportunity of adducing his own evidence it is open to the appellate Court, while directing a retrial, to order that the retrial should be proceeded with only from that stage at which that opportunity was denied to the accused person, without ordering that the evidence of the prosecution witnesses should also be taken afresh. Similarly, in a case where the only defect found by the appellate Court is the failure of the trial Court to examine the accused person in accordance with the provisions of Section 342, Criminal P.C., it is evident that in case of a direction by the appellate Court for a retrial it is not necessary that the prosecution witnesses should also be examined anew in course of the retrial and all that is necessary is that the further trial should proceed from the stage of the examination of the accused person under Section 342, Criminal P.C. and hence the retrial can be directed to be made from that stage.
In the present case the order of the Assistant Sessions Judge remanding the ease was, undoubtedly, not a proper order and he ought to have himself disposed of the matter finally by dealing with all the relevant points in the appeal itself on considering the entire evidence, when be found that certain points hid not been properly dealt with in the judgment of the trial Court. It cannot, however be said that the order passed by him was completely without jurisdiction. As he had the power to direct a retrial of the accused persons from the stage where errors or omission as found by him, had been committed by the trial Court, the order as passed by him directing the trial Court to give a fresh decision in accordance with law after due consideration of the points which the trial Court had failed to consider in its judgment cannot be said to be without jurisdiction.
I may also mention that, after the above remand order by the Assistant Sessions Judge, the petitioner did not move this Court for setting aside the order. Had he done so, this Court might hive considered the appropriateness of the order as passed by the Assistant Sessions Judge and as to whether all the points that were urged before him should have been heard and disposed of by him on the basis of the materials which were already on the record. In the present case, however, we are not concerned with the question whether that order was a proper order or not but the question is whether the order is altogether without jurisdiction as contended on behalf of the petitioner. For reasons discussed above, I am quite unable to accept the contention that the order passed by the Assistant Sessions Judge was without jurisdiction.
10. It follows, therefore, that the contention that the whole proceeding before the trial Court subsequent to above order of remand and the judgment of acquittal pissed by the trial Court are without jurisdiction is quite untenable lathe result, the application in revision fails and is dismissed.