State Of U.P. vs Sachida Nand And Others
2015 Latest Caselaw 1527 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 52
 
Case :- GOVERNMENT APPEAL No. - 1275 of 1992
 
Appellant :- State Of U.P.
 
Respondent :- Sachida Nand And Others
 
Counsel for Appellant :- A.G.A.
 

 
Hon'ble Vipin Sinha,J.

Heard learned counsel for the parties.

The present appeal has been filed by the State being aggrieved against the judgement and order dated 21.01.1992 passed by Judicial Magistrate, Railway, Gorakhpur in Case No. 2284/83 by virtue of which the accused-respondents Sachhidanand Gupta and Ramayan Ji Gupta were acquitted of the charges under Section 3 of R.P. U.P. Act.

A perusal of record shows that as per report of C.J.M., Gorakhpur dated 06.04.2015, as far as accused respondent no. 2 is concerned, he has already expired as far back as on 11.07.2003. A copy of the information received from the concerned police station has also been brought on record and thus in this view of the matter, the appeal inasmuch as it pertains to O.P. No. 2 stands abated.

The record further shows that the record of the case has already been weeded out and as per the report of concerned District Judge, Gorakhput dated 08.05.2015, reconstruction is not possible.

The report of O.S.D. dated 13.07.2015 is also on record, which shows that as per the report of District Judge, Gorakhpur, the record has been weeded out and reconstruction of the same is not possible.

However, at this juncture, it would be appropriate to take note of relevant provisions relating to hearing of appeal as contained under Chapter XXIX of the Code of Criminal Procedure 1973. This chapter contains Sections 372 to 394 but relevant provisions dealing with hearing of appeal are contained under Sections 384, 385, 386 Cr.P.C. Section 384 Cr.P.C. basically deals with summarily dismissal of appeal and stipulates that "upon examining the petition of appeal and copy of the judgment received under Section 382 or Section 383, the appellate court considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily..............."

Further Sections 385 and 386 Cr.P.C. are reproduced hereinbelow.

"385. Procedure for hearing appeals not dismissed summarily.- (1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given-

(i) to the appellant or his pleader;

(ii) to such officer as the State Government may appoint in this behalf;

(iii) if the appeal is from a judgment of conviction in a case instituted upon complaint to the complainant;

(iv) if the appeal is under section 377 or section 378, to the accused, and shall also furnish such officer, complainant and accused with a copy of the grounds of appeal.

(2) The Appellate Court shall then send for the record of the case, if such record is not already available in that Court, and hear the parties:

Provided that if the appeal is only as to the extent or the legality of the sentence, the Court may dispose of the appeal without sending for the record.

(3) Where the only ground for appeal from a conviction is the alleged severity of the sentence, the appellant shall not, except with the leave of the Court, urge or be heard in support of any other ground.

386. Powers of the Appellate Court. After perusing such record and hearing the appellant or his 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;

(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;

(c) in an appeal for enhancement of sentence-

(i) reverse the finding and sentence and acquit or discharge the accused or order him to be re- tried by a Court competent to try the offence, 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, so as to enhance or reduce the same;

(d) in an appeal from any other order, alter or reverse such order;

(e) make any amendment or any consequential or incidental order that may be just or proper;

Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement:

Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal."

Regard may also be made to an authoritative pronouncement rendered in the case of Bani Singh and others v. State of U.P. reported in 1996 (33) ACC 677 (SC) wherein the Apex Court has elaborated meaning of sections 385 and 386 of Criminal Procedure Code 1973 in Para No.8 of the judgment which is being reproduced hereinbelow:

"Section 385 (2) clearly states that if the Appellate Court does not dismiss the appeal summarily, it `shall', after issuing notice as required by sub-section (1), send for the record of the case and hear the parties. The proviso, however, posits that if the appeal is restricted to the extent or legality of the sentence, the Court need not call for the record. On a plain reading of the said provision, it seems clear to us that once the Appellate Court, on an examination of the grounds of appeal and the impugned judgment, decides to admit the appeal for hearing, it must send for the record and then decide the appeal finally, unless the appeal is restricted to the extent and legality of the sentence. Obviously, the requirement to send for the record is provided for to enable the Appellate Court to peruse the record before finally deciding the appeal. It is not an idle formality but casts an obligation on the court to decide the appeal only after it has perused the record. This is not to say that it cannot be waived even where the parties consent to its waiver. This becomes clear from the opening words of Section 386 which say that `after perusing such record' the Court may dispose of the appeal. However, this Section imposes a further requirement of hearing the appellant or his pleader, if he appears, and the public prosecutor, if he appears. This is an extension of the requirement of Section 385(1) which requires the Court to cause notice to issue as to the time and place of hearing of the appeal. Once such a notice is issued the accused or his pleader, if he appears, must be heard."

In the case of State of U.P. Vs. Abhai Raj Singh and another reported in AIR 2004 SC 3235, in Para 8, it has been held as under:

"It has been the consistent view taken by several High Courts that when records are destroyed by fire or on account of natural or unnatural calamities, reconstruction should be ordered. In Queen Empress v. Khimat Singh, (1889 A.W.N. 55), the view taken was that the provisions of Section 423(1) of the Criminal Procedure Code, 1898 (in short 'the Old Code') made it obligatory for the Court to obtain and examine the record at the time of hearing. When it was not possible to do so, the only available course was a direction for re-construction. The said view was reiterated more than six decades back in Re Sevugaperumal and Ors. (AIR 1943 (Madras) 391). The view has been reiterated by several High Courts as well, even thereafter."

Again in the same case, Hon'ble Apex Court has expressed about various alternative steps to be taken in the matter of loss of records in Para 10 of the judgment which is extracted as hereinbelow:

"We, therefore, set aside the order of the High Court and remit the matter back for fresh consideration. It is to be noted at this juncture that one of the respondents i.e. Om Pal has died during the pendency of the appeal before this Court. The High Court shall direct re-construction of the records within a period of six months from the date of receipt of our judgment from all available or possible sources with the assistance of the Prosecuting Agency as well as the defending parties and their respective counsel. If it is possible to have the records reconstructed to enable the High Court itself to hear and dispose of the appeals in the manner envisaged under Section 386 of the Code, rehear the appeals and dispose of the same, on its own merits and in accordance with law. If it finds that re-construction is not practicable but by order retrial interest of justice could be better served - adopt that course and direct retrial - and from that stage law shall take its normal course. If only reconstruction is not possible to facilitate High Court to hear and dispose of the appeals and the further course of retrial and fresh adjudication by Sessions Court is also rendered impossible due to loss of vitally important basic records - in that case and situation only, the direction given in the impugned judgment shall operate and the matter shall stand closed. The appeals are accordingly disposed of."

Further in the case of Sita Ram and others v. State reported in 1981 Crl.L.J. 65, the Division Bench acquitted the accused in view of the fact that the lower court record could not be reconstructed. This aspect of Sita Ram case (supra) was again considered by another Division Bench of this Court in the case of Ram Nath Vs. State 1982 (19) ACC 128 (decided on 3.11.1981) wherein also following observations were made:-

"After making the aforementioned observations and in view of the fact that the court was not in a position to have the record of the case re-constructed, the Bench directed acquittal of the accused in that case. The principle laid down in Sita Ram's case fully applies to the facts of the present case. As all attempts to have the record re-constructed have failed, this Court is not in a position to affirm the conviction recorded by the trial court. So far as the question of ordering a re-trial is concerned, we find that in the instant case the incident in connection with which the accused were prosecuted, took place as far back as 13th of September, 1970, that is, more than eleven years earlier. In such circumstances it will not be desirable to direct a re-trial. In this view of the matter we have no option but to allow Criminal Appeal No.857 of 1976 and to set aside the conviction and sentence of Ram Nath and to acquit him of the offence with which he has been charged."

Similarly, another Division Bench of this Court in the case of Brahmanand Shukla Vs. State of U.P. 2010 (69) ACC 749 made following observation in Para 10:-

"In the present case, as we have mentioned in the earlier part of the judgment only a copy of the Trial Court's judgment is available and no other documents like FIR, post-mortem report, copies of the documents which had been filed by the prosecution and were exhibited during trial, the statement of the witnesses recorded under section 161, Cr.P.C. are available despite various attempts to reconstruct the record. The incident is of the year 1979 i.e., the incident took place about 30 years back. In these circumstances, no fruitful purpose would be served by ordering retrial as the same cannot be conducted at all in absence of these documents.

In the light of the above discussions and circumstances mentioned above, we have no other alternative but to allow the appeal, set aside the conviction and sentence of the appellant and to acquit him."

Thus, in view of the consistent legal position as mentioned aforesaid and also in view of the fact that no illegality or perversity has been pointed by the learned A.G.A. with the finding as recorded by the trial court while acquitting the accused-respondent, the present government appeal deserves to be dismissed and the same is dismissed, accordingly.

Consequences to follow.

Let a copy of this order be certified to the court concerned.

Order Date :- 29.7.2015

Sandeep