Madhya Pradesh High Court
S.S.Chahar vs Kok Singh on 18 February, 2020
Equivalent citations: AIRONLINE 2020 MP 1772
Author: Anand Pathak
Bench: Anand Pathak
1 Criminal Revision No.292/14
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH : HON'BLE MR. JUSTICE ANAND PATHAK
Criminal Revision No.292/2014
S.S.Chahar
Vs.
Kok Singh & Ors.
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Shri Sanjay Gupta, learned counsel for the petitioner.
None for the respondents despite service.
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ORDER
(18/02/2020) The instant Criminal Revision is under Section 397 read with Section 401 of Cr.P.C. against the order dated 19.3.2014 passed by the Second Additional Sessions Judge, Bhind, in Criminal Revision No.16/11, whereby the appellate Court set aside the judgment dated 18.10.2010 passed in Criminal Case No.716/2019 by Judicial Magistrate First Class, Bhind, and remanded the case for re-framing of charges and for deciding the matter after hearing the parties.
2. Precisely stated facts of the case are that respondent No.1 filed a complaint against the petitioner and other respondents before Judicial Magistrate First Class on the allegation that respondent No.1/complainant is editor of weekly newspaper "Nirmohi" and he published some alleged disparaging news/article against petitioner and other respondents. The petitioner and other accused pressurized him for publishing counter of the said news, but the complainant did not 2 Criminal Revision No.292/14 do so, therefore, accused started keeping enmity with him. On 8.11.1971 they falsely involved the complainant in a murder case and on 13.11.1971 when he was sitting at his door, then accused No.1 Premshankar Mishra, who was the then Sub-Inspector of police, apprehended him and snatched a gold chain of 2.5 Tola and Rs.1,000/- from him. His clothes were torn and he was beaten with kicks and fists and he was taken to Police Station, Kotwali, Bhind, only in inner garments. In the police Station, other accused also committed Marpeet and tortured him. He was manhandled and abused and his procession was undertaken by defaming him while writing Bhind Ka Guna on his chest. On his complaint, as per the direction of District Magistrate, though an enquiry was conducted by Sub-Divisional Magistrate, but he got disappointment from the said enquiry and thereafter he filed the present private complaint before the Judicial Magistrate First Class.
3. After filing of the private complaint before the Judicial Magistrate First Class, charges were framed by the Judicial Magistrate First Class and thereafter trial was conducted.
4. The learned Judicial Magistrate First Class framed three questions for deciding the controversy which are reproduced as under :-
Þ1- D;k vkjksihx.k us fnukad 13-11-1971 dks LFkku xzke uqUgkVk etjk dksdflag ds iqjk es tc vfHk;ksxh dksdflag ds iqjk es dksdflag iq= yYyw flag ds njokts ij cSBk gqvk Fkk rks vius lkekU; vk'k; ds vuqdze esa vfHk;ksxh dksdflag dks ykr ?kwlksa] twrksa }kjk ekjihV dj mls LoSPN;k lk/kkj.k migfr dkfjr dh \ 2- D;k mDr fnukad le; o LFkku ij vkjksihx.k us vfHk;ksxh dksdflag dks] xaHkhj izdksiu djus o vuknfjr djus ds vk'k; ls mldh twrksa }kjk rFkk mls x/ks ij fcBkydj twrks dh ekyk igukdj vkijkf/kd cy dk iz;ksx fd;k \ 3 Criminal Revision No.292/14 3- D;k mDr fnukad le; o LFkku ij vkjksih izseizlkn us vfHk;ksxh dksdflg ds xys es iMh lksus dh tathj rksMdj o usg:dV tkdsV dh tsc esa j[ksa ,d gtkj :i;s csbZekuh iwoZd vk'k; ls fudkydj ywV dkfjr dh \ß After appreciating the evidence and documents on record, Judicial Magistrate First Class held that complainant Kok Singh was under-
trial in criminal case and was required for investigation, therefore arrested and complainant failed to prove that petitioner and respondent No.2 at the time of arrest in village Nunhata committed Marpeet with him with legs and fists and willingly caused injuries. Similarly, evidence regarding question No.2 was discarded by the Judicial Magistrate. So far as question No.3 is concerned, the Judicial Magistrate First Class held that complainant did not examine any witness who was present on the spot, therefore, Judicial Magistrate First Class acquitted the petitioner and respondent No.2 from the charges, but kept the case pending against respondent No.3 as he was absconding.
5. Against the acquittal of petitioner and other respondent, complainant filed an appeal before the 2 nd Additional Sessions Judge, Bhind, (although without mentioning any provision of law) and prayed for setting aside the judgment of Judicial Magistrate First Class and as per the allegation, Additional Sessions Judge overlooked the provision of Section 378(4) of Cr.P.C. and passed the impugned order, therefore, petitioner has preferred this petition.
6. It is the submission of learned counsel for the petitioner that when trial Court recorded the acquittal in favour of the petitioner after 4 Criminal Revision No.292/14 marshalling the evidence, then no case for remand is made out on flimsy pretext. When the finding of acquittal has been recorded, then appellate Court is expected not to unsettle the finding unless perversity or illegality is apparent on record. Only on the basis of two views, the appellate Court ought not to have disturbed the finding. By the impugned order a direction has been given not to take evidence further but to hear the parties after amending the charges and pass appropriate order.
7. Trial Court was also directed to frame the charges against the petitioner under Sections 323, 355/34 of IPC and if possible then discretion has been given to the trial Court to consider incorporation of offence under Section 504 of IPC.
8. It is the submission of learned counsel for the petitioner that without following the procedure under Sections 216 and 217 of Cr.P.C. the appellate Court could not have passed such order. Only on the basis of hearing of the matter, trial Court cannot decide the matter afresh. He prayed for setting aside of the impugned order.
9. Despite notice issued to the respondents on 2.9.14 through registered AD mode, nobody turned up and office report dated 13.10.2014 indicates that notice has been served and nobody turned up on behalf of the respondents and it is an old matter, therefore, matter is heard finally.
10. In the case in hand the trial Court recorded acquittal in favour of the petitioner who was facing trial of offence under Sections 323, 355 5 Criminal Revision No.292/14 of IPC, whereas other co-accused respondent No.2 (now deceased) faced trial for offence under Sections 323, 355, 392/34 of IPC and respondent No.3 was absconding and did not participate in the proceedings. Trial Court after considering the evidence of the parties recorded acquittal. Thereafter, appeal has been preferred by the complainant before the appellate Court and appellate Court remanded the matter back to the trial Court.
11. Interestingly, while remanding the matter to the trial Court, appellate Court ignored 2-3 material contours of legal provisions; one is the provisions contained under Sections 216 and 217 of Cr.P.C. Alteration of charge entails recalling of witness and perusal of the provisions makes it apparently clear that it is mandatory in nature. When appellate Court itself opined that except complainant no other witness turned up for evidence perhaps because of stale nature of allegation for last 49 years, therefore, unless provisions of Sections 216/217 Cr.P.C. are not ensured, no remand order would be in the interest of justice.
12. Here the appellate Court opined on its own that no further evidence is required. After framing of charge if the evidence is not recorded afresh and only on the basis of already existing evidence matter is decided on the basis of hearing of the parties, then it may cause prejudice to either of the parties and here apparently petitioner would have been the sufferer because alteration of charge entails incorporation of grave charge over the petitioner, and therefore, he 6 Criminal Revision No.292/14 must be given chance to rebut the allegations/charge.
13. Another legal provision which may be of material significance in the case in hand is provision contained under Section 378(4) of Cr.P.C. If respondent No.1 was aggrieved by any order of acquittal, then only remedy available before him was to file leave to appeal under Section 378(4) of Cr.P.C. before this Court because this is a case arising out of private complaint and not arising out of police report, therefore, provisions of Sections 378(4) of Cr.P.C. would be applicable. (See Mallikarjun Kodagali (Dead) through L.Rs. v. State of Karnataka and others reported in AIR 2018 SC 5206.)
14. Beside that, appellate Court erred in remanding the matter back to the trial Court while directing the trial Court to conclude the trial after hearing both the sides which is contrary to the scheme of Cr.P.C. because scheme of Cr.P.C. provides mechanism of trial in a particular manner and trial of summons cases, warrant cases and like that have been prescribed in Cr.P.C., therefore, any trial cannot be conducted only on the basis of hearing of the parties without leading adequate evidence or relying upon previous evidence after re-framing of charges. Therefore, on this aspect also the appellate Court erred in passing the order of remand.
15. Even otherwise, the instant case is of the year 1971 and after such long time matter ought not to have been remanded as held by the Apex Court in the case of S. Guin and others vs. Grindlays Bank Ltd. reported in (1986) SCC 654.
7 Criminal Revision No.292/14
16. It is also settled in law that in appeal against accused if two views are possible, then benefit ought to be given to the accused and finding should not reversed on the pretext that two views are possible. (See Union of India and others vs. Sepoy Pravat Kumar Behuria reported in (2019) 10 SCC 220 and Bannareddy and others vs. State of Karnataka and others reported in 2019(1) M.P.L.J.(Cri) (SC)
104.)
17. In the considered opinion of this Court, appellate Court erred in passing the order of remand and re-framing of charge in a case which is pending for last 49 years. Resultantly order 19 th March, 2014 passed in Criminal Appeal No.16/2011 by 2nd Additional Sessions Judge, Bhind, is hereby set aside and order of acquittal passed by the trial Court is hereby affirmed.
(Anand Pathak) Judge ms/-
MADHU SOODAN PRASAD 2020.02.18 13:34:00 -08'00'