Andhra HC (Pre-Telangana)
Tadikonda Ramulu vs State Of A.P. And Anr. on 19 March, 1992
Equivalent citations: 1992(2)ALT437
JUDGMENT J. Eswara Prasad, J.
1. The petitioner was found guilty of the offences under Sections 307 and 376 read with Section 511 IPC, and he was convicted and sentenced to suffer Rule 1 for five years and also to pay a fine of Rs. 100/- for each of the offences by the Principal Asst. Sessions Judge, Tenali in SC No. 441/88 and CC No. 147/87 on a private complaintlodged by the Second respondent. The petitioner filed Crl.A.No. 143/ 90 in the Court of of Sessions, Guntur, against the said conviction and sentence. The learned Sessions Judge allowed the appeal, set aside the conviction and sentence and remitted the matter back to the Prl. Asst. Sessions Judge, Tenali, and restored CC No. 147/87 to file. The order of the II Addl. Munsif Magistrate Tenali in PRC No. 8/88 dated 19-12-88 was quashed. The learned Magistrate was directed to expedite the enquiry in PRC.8/88.
2. The 2nd respondent filed the private complaint against the petitioner for offences under Sections 376 read with 511 and 307and 324 IPC on 24-9-87, in the Court of the II Addl. Munsif Magistrate, Tenali. After recording the statement of the complainant and two others on 25-4-88, the learned Magistrate took the complaint on file for offences under Sections 207 and 376 IPC read with Section 511 IPC on 11-7-88 and consequently the case was registered as PRC No. 8/88 and summons were issued to the accused. The S.I. of Police, Kollur, filed charge sheet in Cr.No. 71 /88 alleging that the petitioner is liable for punishment for offences under Sections. 354, 325 and 324 IPC and the said charge-sheet was taken on file as CC No. T47/87 on the file of the II Addl. Munsif Magistrate Tenali. The learned Magistrate after following the procedure as provided under Section 207 Cr.P.C. came to the conclusion that the offence alleged against the petitioner was triable exclusively by the Court of Sessions and committed the accused to take his trial in the Court of Sessions, Guntur as provided under Section 209 Cr.P.C. by the order dated 19-12-88. Pursuant, thereon, the case was taken on file as SC.No. 441/88 in the Court of Sessions, Guntur Division, CC No. .l47/87 was transferred to the Court of the Principal Asst. Sessions Judge, Tenali, to be tried along with SC.441/88. The learned Judge framed charges under Sections 376 read with 511 and Section 307 IPC.
3. Both the Addl. Public Prosecutor or and the defence Counsel filed a joint memo to record evidence in SC.441/88 and to treat the same as evidence in CC. 147/87 and to dispose of both the cases by a common judgment and accordingly, evidence was recorded in SC.441 /88.
4. The prosecution examined PWs.1 to 7 and got marked Exs.P.1 to P.6 and. the accused got marked Exs.D-1 to D-8. The learned Principal Asst. Sessions, Judge, Tenali, convicted the petitioner and sentenced him in SC.441/88, while closing CC No. 147/87 in view of the judgment passed in the Sessions Case by the same judgment. The petitioner appealed against his conviction and sentence. During the pendency of the appeal, the Public Prosecutor filed Crl.M.P.No. 5256/ 90 for quashing the committal proceedings and the order thereon and for a fresh committal, according to law. The petitioner also agreed with the stand taken by the prosecution that the judgment was contrary to the mandatory provisions of Clause (2) proviso to Section 202 Cr.P.C. He, however, contended that the Court had no power to remit the case for fresh committal. The learned Sessions Judge agreed with the contention of the Public Prosecutor that the trial was vitiated due to non-compliance of Section 202(2) Cr.P.C. and that the order dated 19-12-88 passed in PRC.8/88 committing the case to the court of Sessions, is illegal and the Second trial is also vitiated for non-compliance of the mandatory provisions of Section 202(2) Cr.P.C. Consequently, he set aside the conviction and sentence of the petitioner passed in SC No. 441 /88 and quashed the order in PRC.No. 8/88 dated 19-12-88 and further directed that the case shall be remitted back to the II Addl. Munsif Magistrate, Tenali, with a direction to restore the same to its original number and conduct the enquiry according to law. He further directed that CC No. 147/87 also be restored to file of the Principal Asst. Sessions Judge, Tenali and to dispose of the same in accordance with law.
5. Sri Bali Reddy, appearing for the petitioner contended that the learned Sessions Judge was correct in allowing the appeal and in setting aside the conviction and sentence of the petitioner and was also correct in quashing the committal order. But the further direction of the learned Judge, directing the further enquiry is without jurisdiction. He referred to Section 386 Cr.P.C. dealing with the powers of the appellate court and argued that only in the case of an appeal against acquittal, the appellate Court may reverse the order and direct further enquiry or that the accused be re-tried or committed for trial. In case of appeal against conviction, the learned counsel submits the appellate Court can only reverse the finding of acquittal or discharge the accused or order him to be retried. In the absence of any provisions, enabling the appellate Court to direct further enquiry, as found in the case of appeals against acquittals there is no provision to direct further enquiry while allowing the appeal against conviction.
6. In order to appreciate the contention of the learned Counsel, it is necessary to set out the relevant portions of Section 386 Cr.P.C.
Section 383 Powers of the Appellate Court:
"After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosector, 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;
(b) in an appeal from a conviction-
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or
(c) make any amendment or any consequential or incidental order that may be just or proper;"
The learned counsel referred to the decision in Kaningam Savaranna v. State and Anr., AIR 1957 A.P. 472 = 1957 ALT 418 wherein Krishna Rao J., held that further inquiry cannot be consequential or incidental order in terms of Clause (d) of Section 423 = Section 386(e) of the present Cr.P.C
7. A reading of Section 386(b)(i) and (e) clearly shows that the appellate Court may, in an appeal from conviction, reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a court of competent jurisdiction subordinate to such appellate court or commited for re-trial, or make any consequential or incidental order that may be just and proper. There is nothing in the Section to indicate that the powers of the appellate Court to pass any consequential or incidental order that may be just or proper, are restricted.
8. Sri Bali Reddy fairly brought to my notice the decision in Prakasa Reddy v. Pitchireddi, in which, Chandra Reddy J., (as he then was) by an elaborate discussion of the entire case relating to the powers of the appellate Court under Sections. 439 and 423 of the Old Cr.P.C. laid down that Clauses (c) and (d) of Section 423 are of wide import and include the power to remit the matter to the lower Court after setting aside the order passed either under Section 107 or Section 110 or Section 145 Cr.P.C. it was held that:
"It is the well-established canon of interpretation of a statute that effect should be given to every part of the statute. If the argument of the learned Judge is to be accepted, no meaning is given to Clause (d)(e) of Section 386 of Cr.P.C. (of 1973)."
The learned Judge rightly held that powers under Section 439 Cr.P.C. which are coextensive with those in Section 423(1)(c) and (d) are wide enough to include the order of a further inquiry. A Division Bench of the Nagpur High court in Gopalakrishna Naidu v. State of M.P., AIR 1952 Nagpur 170 also took a similar view while dealing with Section 423(1 )(d) and held that the Appellate Court has the power to make a consequential order upon its view that the trial was not valid.
9. A Division Bench of this Court in Ramachandra Rao v. B. Ramachander, 1979 (2) APLJ. 299 held that proviso to Clause (2) of Section 202 is mandatory. The learned Judges set aside the order of the Magistrate issuing process without examining the witnesses of the complainant as patently illegal, and direct the Magistrate to continue the proceedings from the stage immediately prior to the order issuing process and to examine the remaining witnesses of the complainant. It was held that for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, and that nothing contained in Section 397(2) can limit or affect exercise of the inherent power of the High Court. I am in respectful agreement with the decision in Prakasa Reddy's case (2 supra) and hold that Clauses (d) and (e) of Section 386 Cr.P.C. empower the appellate court even in appeals from conviction under Clause (b), to make any consequential or incidental order that may be just or proper, including an order directing further enquiry. Had the above decision been brought to the notice of Krishna Rao }., the decision Kingam Savaranna's case (1 supra) would have been otherwise.
10. The order of the learned Sessions Judge is made in accordance with the powers conferred under Section 386 Cr.P.C. and needs no interference. The revision is accordingly dismissed.