Orissa High Court
Raju Patra And Another vs State Of Orissa on 22 September, 2016
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLREV NO. 418 of 2000
From the judgment and order dated 28.06.2000 of the Sessions
Judge, Sundargarh passed in Criminal Appeal No.5/39 (Camp) of
2000 and the judgment and order dated 31.05.2000 of the
Assistant Sessions Judge, Bonai passed in S.T. No.115/11 of
1999.
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Raju Patra & Another ......... Petitioners
-Versus-
State of Orissa ......... Opp. party
For Petitioners: - Mr. Ajit Kumar Choudhury
For Opp. party: - Mr. Jyoti Prakash Patra
Addl. Standing Counsel
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing and Judgment- 22.09.2016
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S. K. Sahoo, J.The petitioners namely Raju Patra and Arjun Patra have preferred this revision petition challenging the impugned judgment and order dated 28.06.2000 passed by the learned Sessions Judge, Sundargarh Camp at Bonai in Criminal Appeal No.5/39 (Camp) of 2000 in setting aside the judgment and order of conviction under section 395 of the Indian Penal Code and 2 section 25(1)(a) of the Arms Act, 1959 and the sentence passed there under on dated 31.5.2000 by the learned Assistant Sessions Judge, Bonai in S.T. Case No.115/11 of 1999 and directing the Trial Court to dispose of the case afresh.
2. The two petitioners along with four others namely Mishra Patra, Pantu Patra, Rajesh Patra and Parameswar Sethi @ Pari faced trial in the Court of learned Assistant Sessions Judge, Bonai in S.T. Case No.115/11 of 1999 for offences punishable under sections 395, 397 and 120-B of the Indian Penal Code and section 25(1)(a) of the Arms Act.
The learned Trial Court vide judgment and order dated 31.5.2000 has been pleased to hold each of the accused persons guilty under section 395 of the Indian Penal Code and section 25(1)(a) of the Arms Act and accordingly, convicted them and sentenced the petitioners and two other co-accused persons namely Mishra Patra and Pantu Patra to undergo R.I. for three years each and to pay a fine of Rs.100/- each, in default, to undergo R.I. for sixty days each for the offence under section 395 of I.P.C. and to undergo R.I. for six months each and to pay a fine of rupees twenty each for the offence under section 25(1)(a) of the Arms Act, in default, to undergo R.I. for 20 days each. The substantive sentences were directed to run 3 concurrently and the default sentences were directed to run consecutively.
So far as the other two co-accused persons namely Parameswar Sethi @ Pari and Rajesh Patra are concerned, they were sentenced to undergo R.I. for one year and to pay a fine of rupees one hundred each and in default, to undergo R.I. for sixty days for the offence under section 395 of I.P.C. and six months each and to pay a fine of rupees twenty each, in default, to undergo R.I. for twenty days each for the offence under section 25(1)(a) of the Arms Act and the substantive sentences were directed to run concurrently and the default sentences were directed to run consecutively.
3. The two petitioners namely Raju Patra and Arjuna Patra preferred an appeal before the learned Sessions Judge, Sundargarh Camp at Bonai on 26.6.2000 and accordingly, Criminal Appeal No.5/39 (Camp) of 2000 was registered. Another co-accused namely Pantu Patra preferred an appeal which was registered as Criminal Appeal No.6 (Camp) of 2000.
The order sheet of the Appellate Court indicates that the appeal of the petitioners was posted to 27.6.2000 for office note and hearing on the point of admission and the LCR was called for from the Court below. On 27.6.2000 the advocate for the petitioners and Public Prosecutor were present. Learned 4 counsel for the petitioners and the Public Prosecutor were heard and the matter was posted on 28.6.2000 for orders. On 28.6.2000, the appeal was admitted, the argument from both sides were heard along with Criminal Appeal No.6 (Camp) of 2000 preferred by co-accused Pantu Patra and on the very same day, a common judgment was pronounced in both the appeals and the learned Appellate Court has been pleased to direct for remanding the matter to the learned Trial Court for fresh disposal in accordance with law and it was directed to the Trial Court to recall the Investigating Officer to record his evidence in detail and to provide opportunity to the defence for cross-examination. It was further directed that while recording the statement of the accused under section 313 Cr.P.C., his/their attention should be drawn to those of the articles seized from their respective possession and the Trial Court was directed to dispose of the case afresh in accordance with law. The judgment and order of conviction and sentence passed by the learned Trial Court against the appellants as well as co-accused Pantu Patra who preferred Criminal Appeal No.6 (Camp) of 2000 and the other co-accused convicts who had not preferred any appeal was set aside and the case was remanded back to the Trial Court for fresh disposal.
4. Mr. A.K. Choudhury, learned counsel for the petitioners contended that the entire procedure adopted by the 5 learned Appellate Court in disposing of the appeal is illegal and against the relevant provisions which are laid down either in the Code of Criminal Procedure or in the G.R.C.O. (Volume-I) in Chapter-XV.
5. Chapter XXIX of the Cr.P.C. deals with appeals. In view of Section 374 (2) Cr.P.C., if a person is convicted on a trial held by any other Court apart from the Court of Sessions Judge or an Addl. Sessions Judge in which a sentence of imprisonment passed is seven years or less or in view of section 374 (3) Cr.P.C. if any person is convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class, or of the second class, or sentenced under section 325 Cr.P.C. or in respect of whom an order has been made or a sentence has been passed under section 360 Cr.P.C. by any Magistrate, may appeal to the Court of Session.
In the present case, the trial was conducted by Assistant Sessions Judge, Bonai in S.T. Case No.115/11 of 1999 and sentence of imprisonment was less than seven years and therefore, the petitioners rightly preferred the appeal before the Court of Sessions Judge, Sundargarh.
Section 381 (1) Cr.P.C. provides that an appeal to the Court of Session or Sessions Judge shall be heard by the Sessions Judge or by an Addl. Sessions Judge subject to the 6 provisions of sub-section (2). Section 384 Cr.P.C. indicates that if upon examining the petition of appeal and copy of the judgment received under section 382 or section 383 Cr.P.C., the Appellate Court considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily. In the present case, the appeal has not been dismissed summarily and the appeal was admitted by the learned Sessions Judge, Sundargarh on 28.6.2000.
Section 385 Cr.P.C. lays down the procedure for hearing the appeals which are not dismissed summarily. In view of section 385(1) Cr.P.C., it is the duty of the Appellate Court to cause notice of the time and place at which such appeal will be heard to the appellant or his pleader and to such officer as the State Government may appoint in this behalf. Section 385 (2) of Cr.P.C. indicates that the Appellate Court shall then send for the record of the case, if such record is not already available in that Court and then hear the parties. At this juncture, it is important to notice that Chapter-XV of G.R.C.O. (Criminal) Volume-I which deals with appeals, Rule-118 lays down the manner of intimation of the date of hearing and calling for record in case of appeals. As it appears there is a prescribed form No.(M) 11, Vol.II through which notice of hearing of appeal has to be sent and record has to be called for from the Trial Court.
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6. On perusal of the Appellate Court records of Criminal Appeal No. 5/39 of 2000, it is found that though prior to admission of the appeal on 28.6.2000, the lower Court record was called for on 26.6.2000 but there is nothing on the record that it was intimated to the learned Trial Court in the prescribed form or any lower court record was received by the learned Sessions Judge. It is apparent that the particular sentence "Call for the LCR from the court below" as per the order dated 26.6.2000 has been typed out subsequently. When the case was adjourned on 27.06.2000 to 28.06.2000 for order, no hearing notice as contemplated under section 385(1) Cr.P.C. either to the petitioners or their advocate was given obviously as the appeal had not even been admitted by then. On the date of admission of the appeal i.e. on 28.06.2000, it was admitted, finally heard analogously with Criminal Appeal No. 6 (Camp) of 2000 preferred by co-accused Pantu Patra and impugned judgment was pronounced on the very same day. It is apparent that everything has been done hurriedly by the learned Appellate Court without following the procedure laid down in the Cr.P.C. and G.R.C.O. (Criminal). Appellate Court has co-extensive power like the Trial Court in the matter of assessment, appraisal and appreciation of evidence and it is expected of him to give reasonable opportunity of hearing to both the sides. In view of such procedural 8 irregularities which have been committed by the learned Appellate Court while disposing of the appeal on merit on the date of the admission of the appeal, I am of the view that the matter should be remanded back to the learned Appellate Court for rehearing of the appeal in accordance with law.
At this stage, it was pointed out by the learned counsel for the State that the GCRLA No.21 of 2003 is pending before this Court in which the State of Orissa has preferred an appeal for enhancement of the sentence which has been imposed by the learned Trial Court. Since by virtue of the impugned order of the Appellate Court, the judgment and order of conviction of the Trial Court was set aside and the matter was remanded back to the Trial Court for rehearing and again by virtue of the order of this Court passed today, the matter has been remanded to the Appellate Court for rehearing of the appeal in accordance with law, this fact should be brought to the notice of the Court while dealing with GCRLA No.21 of 2003 at the proper stage.
In view of the aforesaid discussions, the impugned judgment and order dated 28.6.2000 passed by the learned Sessions Judge, Sundargarh Camp at Bonai in Criminal Appeal No.5/39 (Camp) of 2000 as well as Criminal Appeal No.6 (Camp) of 2000 are hereby set aside and both the criminal appeals are 9 remanded back to the learned Sessions Judge, Sundargarh for rehearing in accordance with law.
Even though the co-accused Pantu Patra who is the appellant in Criminal Appeal No.6 (Camp) of 2000 filed before the learned Sessions Judge, Sundargarh Camp at Bonai which was heard analogously with the criminal appeal preferred by the petitioners and disposed by a common judgment, has not preferred any revision before this Court but law is well settled that this Court in exercise of its revisional jurisdiction under section 401 of Cr.P.C. can permit the non-appealing similarly situated accused to avail the benefit of setting aside of an illegal judgment/order. The provision under section 401 of the Code permits this Court to take up the case of the non-appealing person suo motu and pass an appropriate order in the interest of justice.
With the aforesaid observations, the CRLREV petition stands disposed of.
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S.K. Sahoo, J.
Orissa High Court, Cuttack The 22 September, 2016/Pravakar