The single judge bench of the Jharkhand High Court held that under Section 391 of the Cr.P.C., the appellate Court has the power to take additional evidence either itself or direct it to be taken by a Magistrate. There is no such power to set aside the judgment of conviction and direct re-trial.
Brief facts
The factual matrix of the case is that the criminal appeal was preferred by the appellant against the judgment of conviction and sentence under Sections 279/304A of the Indian Penal Code. The order was passed by which the learned Appellate Court set aside the conviction and remitted back the case to the learned court below for re-hearing. Aggrieved by this, the present criminal revision is filed.
Contentions of the Petitioner
The Petitioner submitted that Section 391 of the Cr.P.C. merely allows the appellate court to either record further evidence themselves or refer the case back to the lower court for it to record. There is no mechanism for setting aside the conviction.
Contentions of the State
The State submitted that the learned appellate court had exercised its discretionary jurisdiction for the ends of justice.
Observations of the Court
The Hon’ble Court observed that as per Section 391 of the Cr.P.C., the appellate Court has the power to take additional evidence either itself or direct it to be taken by a Magistrate. There is no such power to set aside the judgment of conviction and direct re-trial. The court relied upon the judgment of the Apex Court titled Bir Singh & Others Versus State of Uttar Pradesh.
Based on these considerations, the court set aside the impugned order.
The decision of the court
With the above direction, the court allowed the revision.
Case Title: Kuldeep Yadav V. The State of Jharkhand
Coram: Hon’ble Mr. Justice Gautam Kumar Choudhary
Case No.: Cr. Revision No. 564 of 2022
Advocate for the Petitioner: Mr. Prabhash Ch. Sinha, Advocate
Advocate for the State: Mr. Vineet Kumar Vashstha, Special P.P.
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