Gujarat High Court
Mistry Jaswantbhai Manilal vs State Of Gujarat on 3 July, 2023
Author: Gita Gopi
Bench: Gita Gopi
R/CR.RA/729/2023 ORDER DATED: 03/07/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 729 of 2023
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MISTRY JASWANTBHAI MANILAL
Versus
STATE OF GUJARAT
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Appearance:
MR GAURAV J DAVE(6665) for the Applicant(s) No. 1
MR PRANAV TRIVEDI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 03/07/2023
ORAL ORDER
1. Mr. Gaurav Dave, learned advocate for the applicant submits that the applicant being the accused no.1 was acquitted along with the other co-accused by the learned Chief Judicial Magistrate, Mehsana by order dated 11.1.2019 in Criminal Case no.4392/06. Aggrieved by the order and judgment of acquittal, the State preferred an acquittal appeal before the learned Sessions Court, Mehsana wherein co- accused no.3's acquittal was confirmed in the appeal while the present applicant was found guilty for the offence punishable under Sections 465, 468, 477A, 471 and 114 of the Page 1 of 12 Downloaded on : Wed Jul 05 20:39:10 IST 2023 R/CR.RA/729/2023 ORDER DATED: 03/07/2023 IPC while benefit of doubt was given for the offence punishable under Sections 406, 408, 420 of the IPC. Mr. Dave states that the applicant is before this Court challenging the judgment of conviction stating that the judgment itself is erroneous as the learned Sessions Judge had after the order of conviction sent the matter back to the Trial Court for passing an appropriate order of sentence.
2. Mr. Pranav Trivedi, learned APP, referring to the provisions under Section 386 of the Code of Criminal Procedure, 1973, submits that the powers of the Appellate Court in case of an appeal from an order of acquittal are specified in clause (a) of Section 386 of the Code of Criminal Procedure, 1973 and the learned Sessions Judge while reversing the order of acquittal after having found accused guilty was required to pass sentence on him and thus, had made a prayer to direct the Page 2 of 12 Downloaded on : Wed Jul 05 20:39:10 IST 2023 R/CR.RA/729/2023 ORDER DATED: 03/07/2023 learned Sessions Court to pass appropriate sentence in the order of conviction so passed.
3. Countering the same, advocate Mr. Dave submitted that the very said aspect is one of his ground for revision and thus, stated that the applicant is required to be protected till then, as following the conviction, he may be sent to jail as his interim bail and bond shall be assumed to have been canceled.
4. Admittedly, the appeal before the learned Sessions Judge was under Section 378 of the Cr.P.C. Section 386 read with clause (a) decides the powers of the Appellate Court in case of an appeal from order of acquittal. The relevant provision is referred to hereunder for better understanding of the scope of the provision.
"386. Powers of the Appellate Court.-
After perusing such record and
hearing the appellant or his
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R/CR.RA/729/2023 ORDER DATED: 03/07/2023
pleader, if he appears, and the
Public Prosecutor, if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-
(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;"
5. The provision thus states that in an appeal from an order of acquittal, the Appellate Court has the power to either reverse such order and direct further inquiry to be made, or that, the accused be retried or committed for trial, as the case may be, while in a case where the Appellate Court comes to the conclusion of declaring the accused as guilty, then the said Court would be required to pass sentence on him according to law. Here in the present case, the learned Appellate Court, while reversing the judgment of acquittal qua Page 4 of 12 Downloaded on : Wed Jul 05 20:39:10 IST 2023 R/CR.RA/729/2023 ORDER DATED: 03/07/2023 the present applicant who was accused no.1 before the Trial Court and opponent no.1 before the Appellate Court, has found him guilty under Sections 465, 468, 477A, 471 and 114 of the IPC but while passing the said order of conviction under sections, the learned Sessions Judge further directed to send record and proceedings before the Trial Court for passing an order of sentence.
6. The learned Sessions Judge thus has committed material error in sending the record to the Trial Court for order of sentence, since the Appellate Court is not empowered to do so. Further, sub-section (2) of Section 235 of the Cr.P.C. obliges the Court to hear the accused on the question of sentence after the conviction, if not proceeded in accordance to the provision of Section 360, and, on hearing the accused on the question of sentence has to pass sentence of him according to law. The Court thus becomes duty bound to adjourn the Page 5 of 12 Downloaded on : Wed Jul 05 20:39:10 IST 2023 R/CR.RA/729/2023 ORDER DATED: 03/07/2023 matter to a further date after recording the conviction so as to call upon both the sides to hear on the question of sentence and thus, is obliged to pass sentence on accused according to law. Here the Appellate Court was obliged under law to hear the accused on the quantum of sentence in accordance with sub- section (2) of Section 235 of the Cr.P.C. The Appellate Court has failed to follow the said procedure and has directed the function to be undertaken by the Trial Court who had already passed the sentence of acquittal.
7. In case of Fedrick Cutinha v. State of Karnataka, 2023 LiveLaw (SC) 326, the case before the Hon'ble Supreme Court was with the facts that 11 accused were acquitted by the Trial Court and the acquittal of 9 of them had been affirmed by the High Court while the accused nos.1 and 3 were convicted under Section 302 read with Section 34 of the IPC with life imprisonment and under Section 326 Page 6 of 12 Downloaded on : Wed Jul 05 20:39:10 IST 2023 R/CR.RA/729/2023 ORDER DATED: 03/07/2023 read with Section 34 of the IPC for causing grievous injuries with imprisonment of 5 years. Aggrieved by the conviction, both the accused had preferred separate appeals and it was urged that the High Court as an Appellate Court in convicting and sentence the accused ought to have given both of them an opportunity of hearing on the quantum of punishment before sentencing them for life imprisonment and imprisonment for 5 years where it was held on the facts of the case that there is no room to doubt the powers of the Appellate Court and that it has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. However, the learned Appellate Court has to bear in mind that in case of acquittal there is double presumption of innocence in favour of the accused. First, the presumption of innocence is available to all accused under the criminal jurisprudence as every person is Page 7 of 12 Downloaded on : Wed Jul 05 20:39:10 IST 2023 R/CR.RA/729/2023 ORDER DATED: 03/07/2023 presumed to be innocent unless proved to be guilty before the competent court of law. Secondly, the accused having secured the acquittal, the presumption of their innocence gets further reinforced and strengthened. Therefore, the appellate court ought not to lightly interfere with the order of acquittal recorded by the trial court unless there is gross perversity in the appreciation of the evidence and even if two views are possible, it should follow the view taken by the trial court rather than choosing the second possible version. This Court at this stage is not entering into merits of the conviction but is only on the aspect whether the learned Sessions Judge being an Appellate Court was right in sending the record back to the Trial Court for passing order of sentencing the accused. Section 235(2) mandates that on an order of judgment of conviction, the Judge, unless proceeds according to the provision of Page 8 of 12 Downloaded on : Wed Jul 05 20:39:10 IST 2023 R/CR.RA/729/2023 ORDER DATED: 03/07/2023 Section 360, is required to hear the accused on the question of sentence and then pass sentence on him according to law. Such function of passing the sentence in accordance with law cannot be delegated to the Trial Court. The accused is required to be given an opportunity on the question of sentence which is a mandatory procedure. If at all on the date of conviction, the accused is not available, the Appellate Court should adjourn the case to a future date and call upon both the prosecution as well as the defence to place relevant material bearing on the question of sentence before it and then sentence could be pronounced to be imposed on the offender.
8. In case of Allauddin Mian v. State of Bihar, (1989) 3 SCC 5, it was held that the order of conviction and imposition of sentence before the Court on the same day is illegal. Page 9 of 12 Downloaded on : Wed Jul 05 20:39:10 IST 2023 R/CR.RA/729/2023 ORDER DATED: 03/07/2023
9. In case of Mukund Lal v. The State & Anr. 1979 CriLJ 105, the Delhi High Court held that normally in criminal case, the Appellate Court has no power to remand to the Trial Court, except for the purpose of retrial. In the said case, the learned Sessions Judge had remanded the case to the lower Court to afford an opportunity of hearing on question of sentence in terms of Section 235(2) of the Cr.P.C. and it was held that such remand is irregular.
10. Learned APP further submits that the order of the Appellate Court convicting the accused and directing the Trial Court to pass an order of sentence would also being irregular would also create an illegality since the order of passing the sentence would be by the Trial Court who had already acquitted the accused and thus, the said order of sentence would give a scope for the accused to challenge the sentence before the Appellate Court while he has at present appeared before this Court by Page 10 of 12 Downloaded on : Wed Jul 05 20:39:10 IST 2023 R/CR.RA/729/2023 ORDER DATED: 03/07/2023 way of revision under Section 397 of the Cr.P.C. challenging the finding of conviction. Thus, the learned APP stated that it may lead to a possibility of de novo trial before the Trial Court who would give hearing to the accused on the question of sentence under Section 235(2) of the Cr.P.C. where the accused may have the scope of leading fresh evidence which would not be permissible in law since the conviction is by the Appellate Court and further stated that there would also be a plea by the accused before the Trial Court to sentence him for passing an order of minimum sentence and in such case, there would not be any necessity to give opportunity to the accused on the question of sentence and such situation would lead to an anomaly where the direction of the Appellate Court would again give the right to the accused to challenge the sentence before the same Appellate Court.
11. In view of the reasons recorded hereinabove, Page 11 of 12 Downloaded on : Wed Jul 05 20:39:10 IST 2023 R/CR.RA/729/2023 ORDER DATED: 03/07/2023 the direction of the Appellate Court to send the record to the Trial Court for taking the decision on the sentence is quashed and set aside. The learned Sessions Judge, Mehsana as an Appellate Court is hereby ordered to pass order of sentence according to law in view of the power granted under Section 386 clause (a) of the Cr.P.C.
12. It is kept open for the applicant to thereafter raise grounds in the present application against any order of sentence passed by the learned Sessions Judge by adopting due process of law and those grounds could be incorporated in the application. The exercise of passing the order of sentence be completed as expeditiously as possible.
13. Accordingly, the present application stands disposed of.
(GITA GOPI,J) Maulik Page 12 of 12 Downloaded on : Wed Jul 05 20:39:10 IST 2023