Madhya Pradesh High Court
Akhilesh @ Attu Gupta vs M/S Siddhant Febrication on 15 March, 2024
Author: Vishal Mishra
Bench: Vishal Mishra
1 MCRC-11788-2015
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 15th OF MARCH, 2024
MISC. CRIMINAL CASE No. 11788 of 2015
AKHILESH @ ATTU GUPTA
Versus
M/S SIDDHANT FABRICATION
Appearance:
Shri Vikalp Soni - Advocate for applicant.
Shri Atul K. Rai - Advocate for respondent.
ORDER
Challenge is made to the order dated 03.07.2015 passed in Criminal Appeal No.210 of 2014 passed by the learned Third Additional Sessions Judge, Damoh whereby the learned appellate Court has remanded the matter back to the trial Court with a direction to pass a fresh punishment order.
2. The case of the applicant is that the respondent filed a complaint against him under Section 138 of the Negotiable Instrument Act whereby the applicant has been convicted vide judgment dated 29.10.2014. The learned trial Court held that the respondent is entitled to get the compensation of Rs.3,00,000/-. It was further directed that if the applicant fails to make the said payment then he is liable to be punished with simple imprisonment for 8 weeks and the said amount will be recovered form him as fine.. The applicant preferred an appeal which was finally disposed of vide order dated 03.07.2015 while remanding back the matter to the trial Court with a direction to pass a fresh punishment order.
Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 7/22/2024 11:49:14 AM2 MCRC-11788-2015
3. It is argued that such direction is contrary to the order passed by the High Court of Madras in the case of G. Sankar vs. A.B. Varadarajan (2007) 2 MPLJ (Cri.) 767; wherein the Hon'ble Court has categorically held that the appellate Court against conviction can reverse the finding and sentence or acquit or discharge the accused or order him to be retried by a Court of competent jurisdiction subordinate to such appellate court or committed for trial, but no such direction can be granted to decide the question of punishment again. He has also relied upon the order passed by the High Court of Delhi in the case of Pratul Chaudhari and others vs. the State, 1979 Cri.L.J. 103 and order passed by the High Court of Andhra Pradesh in the case of P. Mazher vs. State of A.P. and another , 2003 Cri.L.J. 3269 and has prayed for dismissal of this petition.
4. The High Court of Delhi in the case of Pratul Chaudhari (supra) has held as under:-
4. There is also a second and even more important objection to the decision of the Additional Sessions Judge. It is submitted that there is no power to remand the case back to the magistrate. In this respect, reference is necessary to the powers of the appellate court set out in Section 386 of the present Code. It is there stated that the powers of the court are to dismiss the appeal or in an appeal from conviction the court may:
"(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
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;"
It can at once be seen that there is no power of remand except for the purpose of a re-trial. No other section of the Code allows a remand for the purpose of hearing the accused on the question of sentence.
Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 7/22/2024 11:49:14 AM3 MCRC-11788-2015 Therefore, it can well be said that the order of the Additional Sessions Judge is not in accordance with law.
5. For reference, as the order of the Additional Sessions Judge is an unusual one, it may be useful to state that remand orders have, on at least two occasions, been held to be illegal. One of these cases is an unreported judgment of the Calcutta High Court referred to in (1907) 11 Cal WN at p.ccliv of the Notes. The observations of the Court were to the effect that the remand which directed the District Judge to pass a sentence in accordance with law was not legal. Similarly, in another case 'Tara Chand Singh v. Emperor (1905) 2nd 32 Cal 1069 : 3 Cri LJ 119' a remand by a Sessions Judge to the magistrate to write out a proper judgment after rehearing the parties was held to be without authority. These two judgments show that the Additional Sessions Judge had similarly no power to remand the case back to the magistrate to record a sentence in accordance with law.
6. The powers of the appellate court are circumscribed by the provisions of the Cr.P.C. even if the magistrate had not proceeded in accordance with law, which in this case is doubtful, because the magistrate was trying this case under the Cr.P.C. of 1898 and not the new Code, the Sessions Court had to decide the appeal and could either decide the same or he could have sent the case back for retrial. Thus, the decision of the Additional Sessions Judge sought to be revised has to be set aside. This brings me to the question as to what are the powers of this Court. If the Sessions Court could not remand the case back to the magistrate it may well be asked whether this Court can remand the case back to the Additional Sessions Judge. The powers of the revisional court are set out in Secs. 397 and 401 of the new Cr.P.C. No power of remand can be made out from either of these Sections. However, in the two cases I have just referred to, the Calcutta High Court did remand the case back to the Sessions Judge. I asked the learned Counsel for the State as well as the petitioners as to how this Court could remand the case back to the Sessions Judge when the decisions in this case was to the effect that the Sessions Judge had no power to remand the case back. On examining the legal position they submitted that this Court had inherent power to give effect to the conclusions recorded in this judgment and hence under Section 482 of the Code the proceedings could be remanded back to the Additional Sessions Judge. I am in agreement with this submission.
5. The High Court of Andhra Pradesh in the case of P. Mazher (supra) has held as under:-
3. Section 386, Cr.P.C., deals with powers of the Appellate Court. As the appeal was filed before the learned Metropolitan Sessions Judge Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 7/22/2024 11:49:14 AM 4 MCRC-11788-2015 from a conviction, the relevant provision is Section 386(b), Cr.P.C. It reads as follows :
"386(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
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same."
A reading of the above provision makes it clear that the Appellate Judge has got the opinion to reverse the finding and sentence and acquit the accused of the offence of which he was charged. The Appellate Court is also at liberty to order retrial of the accused by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial. The Appellate Court is also at liberty to alter the finding and maintain the sentence imposed by the Trial Court. It has also got the opinion with or without altering the finding, alter the nature and extent of the sentence. However, it has no power to enhance the sentence given by the Trial Court. Section 386(b), Cr.P.C., does not entitle the Appellate Judge in an appeal from conviction to confirm the conviction and at the same time remit back the case to the Trial Court for consideration regarding the sentence alone. In my considered opinion the learned Metropolitan Sessions Judge has committed an error in remitting the case to the Trial Court regarding the sentence alone after confirming the conviction imposed by the Trial Court.
...
8 . In the present case, the order of the learned Metropolitan Sessions Judge confirming the conviction and at the same time setting aside the sentence and remitting back the case to the Magistrate for sentence alone is bad in law and it is liable to be set aside. Therefore, the appeal in Criminal Appeal No. 68 of 1999 is to be remitted back to the learned Metropolitan Sessions Judge for fresh disposal in accordance with law. The confirmation of the conviction made by the learned Metropolitan Sessions Judge as well as the order remitting back the case to the Magistrate regarding the sentence are set aside. The learned Metropolitan Sessions Judge is directed to consider the appeal afresh on merits notwithstanding any of the observations made by the said Court in the appeal.
6. Considering the aforesaid orders passed by the High Courts, the order Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 7/22/2024 11:49:14 AM 5 MCRC-11788-2015 dated 03.07.2015 passed in Criminal Appeal No.210 of 2014 by the Third Additional Sessions Judge, Damoh is unsustainable and is hereby set aside. The matter is remanded back to the appellate authority for reconsideration and to pass a fresh order in accordance with law.
(VISHAL MISHRA) JUDGE THK Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 7/22/2024 11:49:14 AM