Chattisgarh High Court

Bhupendra Singh Thakur vs State Of Chhattisgarh on 1 April, 2022

                                     1

                                                                       NAFR


             HIGH COURT OF CHHATTISGARH, BILASPUR
                          CRMP No. 172 of 2022
                      Order reserved on : 28/01/2022
                      Order delivered on : 01/04/2022
    Bhupendra Singh Thakur, S/o Late Shri Karan Singh Thakur, Aged
      About 61 Years, Profession- Principal, Government Higher Middle
      School Sahaspur Lohara, R/o Sahaspur Lohara, Police Station &
      Tehsil Sahaspur Lohara, District Kabirdham, Chhattisgarh.

                                                               ---- Petitioner

                                  Versus

    State of Chhattisgarh Through The District Magistrate, District
      Kabirdham, Chhattisgarh.

                                                              ---- Respondent

For Petitioner                   : Mr. B.D. Guru, Advocate.
For State                        : Mr. Ishwar Jaiswal, P.L.



                 Hon'ble Smt. Justice Rajani Dubey, Judge
                                 CAV Order
  01 /04/2022

      Heard.

1. This petition is filed under Section 482 of the Code of Criminal

Procedure against order dated 30.12.2021 passed by the Additional

Judge to the Court of Additional Sessions Judge, Kabirdham in

Criminal Appeal No. 14/2017 whereby the learned Sessions judge

remitted the case to the Court of Judicial Magistrate First Class,

Kabirdham with a direction to afford an opportunity to the

prosecution to lead evidence arising out of judgment of conviction

and order of sentence dated 27.02.2017 passed by the Judicial

Magistrate First Class, Kabirdham in Criminal Case No. 98/2015.

2. Brief facts of the case are that at the relevant point of time between

April 1996 to 31/12/1999, the petitioner was posted as Principal and

one co-accused Dhruv Prasad Sharma was posted as a Clerk at

Govt. Higher Secondary School Sahaspur Lohara. It is alleged that

the co-accused Dhruv Prasad Sharma prepared fabricated fake bills

for withdrawal of Provident Fund (PF) from the account of teachers

working in the Higher Secondary School Sahaspur Lohara and other

schools affiliated to Higher Secondary School Sahaspur Lohara and

the same was signed by the petitioner who was Drawing and

Disbursing Authority. It is further alleged that the accused persons

have entered all fake bills in the BTRs and submitted them to the

District Treasury Kabirdham and obtained tokens for payment and by

tendering the tokens at the State Bank of India, Kawardha withdrew

the amount in cash and embezzled the government fund for their

own use. It is further alleged that the petitioner being Drawing and

Disbursing authority made overwritings in serial numbers of BTRs

and after making alterations, they made the counter files disappear.

Entry of as many as 69 BTRs in the payment register and thereby

accused persons knowingly that the documents are fake, used the

documents as genuine & dishonestly withdrew and misappropriated

amount of Rs. 13,03,000/-. Charge-sheet was filed against the

accused persons under Sections 409, 420, 467, 468 and 471 r/w

Section 34 of IPC and are facing trial before learned Judicial

Magistrate First Class, Kabirdham (C.G.). After trial the learned

Judicial Magistrate First Class, Kabirdham vide its judgment of

conviction and order of sentence dated 27.02.2017 found the

petitioner guilty and convicted him. Being aggrieved by the judgment

of conviction and order of sentence dated 27.02.2017, petitioner

preferred a Criminal Appeal No. 14/2017 before the Additional

Sessions Judge Kabirdham. The learned Additional Sessions Judge,

Kabirdham vide impugned judgment dated 30.12.2021 partly allowed

the appeal by setting aside the conviction and sentences imposed by

learned Judicial Magistrate First Class Kabirdham, remanded back

the case to the court of Judicial Magistrate with direction to afford an

appropriate opportunity to the prosecution to examine the

handwriting expert and on being examined the hand writing expert

by the prosecution, an opportunity of cross-examination is given to

the defence, and thereafter passed the judgment considering the

evidence adduced by the prosecution and defence as well. Hence,

the petition.

3. Learned counsel for the petitioner submits that the order of

remanding the case is bad in law because the prosecution had never

sought any prayer for opportunity of examination of the prosecution

hand writing expert. It was not a case where the prosecution was not

given opportunities to examine the witness. On the other hand, it is

crystal clear that the prosecution did not chose to examine hand

writing expert as well as important witnesses even after several

opportunities were given to them. The order of remanding the case

is bad in law because the State had never challenged the order of

the Judicial Magistrate whereby the application filed by the

prosecution seeking permission under Section 311 of Cr.P.C. to

examine the witness was rejected vide order dated 27-12-2016. The

appeal is preferred by the petitioner against the judgment of

conviction and order of sentence therefore, order could not have

been passed in the appeal preferred by the convict to fill up the

lacunae of the prosecution. Particularly, where such a relief has not

been sought by the prosecution itself. Learned appellate court has

failed to appreciate correctly the ratio laid down by Hon'ble the

Supreme Court in the cases referred and relied on by him while

remanding the case back. The appellate Court while reverting the

case, committed gross error of law by remanding the trial to the

learned trial court with the observation and direction to the

prosecution to fulfill the lacuna and the wrong done by the

prosecution. The order passed by the appellate court is absolutely

illegal and contrary to the law because the appellate court cannot

give opportunity again to the prosecution, when it has failed to prove

its case beyond all reasonable doubt and the accused/petitioner

herein is always entitled to get the benefit from the failure of the

prosecution. The impugned order is against the settled principle of

law and the appellate court cannot sit as a prosecution agency by

directing and again providing opportunity to prove its case by

pointing the lacuna of prosecution. He further submits that the

learned appellate court at para 19 of its judgment held that judgment

of conviction has been passed by the trial court on the basis of

presumption. It is further held that the judgment passed by trial court

is not a speaking judgment, wherein evidence of the prosecution has

not at all been appreciated and reasons are not assigned, it is

therefore, not possible for him to decide the appeal on the merits of

the case. The learned appellate court has held that, had the trial

court passed the judgment after considering the evidence then he

would have either agree or disagree with the findings. But the

direction passed by the appellate court is against the settled

principle by the Hon'ble Supreme Court and the trial court.

Therefore, the impugned order is liable to be set aside. Learned

counsel for the petitioner has referred to the decision of Hon'ble

Supreme Court made in the case of Satyajit Banerjee and others

v. State of W.B. and others [2005 (1) SCC 115], Zahira Habibulla

H. Sheikh v. State of Gujarat reported in 2004 (4) SCC 158 and in

the matter of Harishankar Prasad Sahu and others v. State of

Chhattisgarh passed in CRR No. 94/2014 vide order dated

04.04.2014 by this court.

4. On the other hand, learned State counsel submits that judgment

passed by the trial court is well within the competence and power

under Section 386 of Cr.P.C. conferred upon the appellate court

while hearing the appeal. It is also contended that the court has also

power to call for the witnesses under Section 311 of Cr.P.C.

therefore, the learned counsel for the State has prayed for rejection

of the instant petition.

5. Heard counsel for the parties and perused the material available on

record.

6. It is clear from the material available on record that the Judicial

Magistrate First Class, Kabirdham after completion of trial, has found

the petitioner guilty of having committed the offence under Sections

420, 409, 467, 468 and 471 r/w section 34 of the IPC. Accordingly,

the trial court vide its judgment dated 27.02.2017 convicted the

petitioner as under:-

     Conviction          Sentence                    Default
     U/s 420 of    R.I. for 3 years and to   In default of payment of
        IPC        pay fine of Rs. 500/-      fine 10 days additional
                                                        S.I.
     U/s 409 of    R.I. for 3 years and to   In default of payment of
        IPC        pay fine of Rs. 500/-      fine 10 days additional
                                                        S.I.
     U/s 467 of    R.I. for 3 years and to   In default of payment of
        IPC        pay fine of Rs. 500/-      fine 10 days additional
                                                        S.I.
     U/s 468 of    R.I. for 3 years and to   In default of payment of
        IPC        pay fine of Rs. 500/-      fine 10 days additional
                                                        S.I.

U/s 471 of R.I. for 1 year and to pay In default of payment of IPC fine of Rs. 300/- fine 06 days additional S.I.

Petitioner has challenged this judgment before Sessions Court

in Criminal Appeal No. 14/2017.

7. Learned Additional Sessions Judge, Kabirdham while hearing the

appeal of the accused/petitioner without entering into the merits of

the case found that the trial court has not acted properly and

prosecution has not examined the hand writing expert. Learned

appellate court also held that the impugned judgment is not a

speaking judgment, trial court had not appreciated the evidence of

the prosecution and the learned appellate court vide its judgment

dated 30.12.2021, remitted the matter back to the trial court after

setting aside the judgment of conviction and order of sentence dated

27.02.2017 with direction to afford appropriate opportunity to the

prosecution to examine the hand writing expert and on being

examined by the prosecution, opportunity of cross-examination is

given to the defence and thereafter passed the judgment considering

the evidence adduced by the prosecution and evidence as well.

8. In Criminal Revision No. 94 of 2014 (Harishankar Prasad Sahu &

others v. State of Chhattisgarh) vide order dated 04.04.2014, the

High Court in paras 11, 12, 13 and 14 has held as under:-

11. It is worthwhile at this juncture to refer a decision of Hon'ble Supreme Court made in this case Satyajit Banerjee and others v. State of W.B. and others [2005 (1) SCC 115], wherein the Hon'ble Supreme Court relying upon its earlier decision in Zahira Habibulla H. Sheikh v. State of Gujarat (commonly known as the "Best Bakery case"), reported in 2004 (4) SCC 158, has held in para 26, that direction for retrial should not be made in all or every case where acquittal of accused is for want of adequate or reliable evidence.

12. When the said judgment of Hon'ble Supreme Court is compared with the facts of the instant case, it would reveal that the present is a case where it was an appeal against the judgment of conviction and order of sentence which was under challenge at the behest of the convicted persons and that the appellate Court i.e. the Sessions Judge, Korba, ought to have considered the merits of the appeal in the light of the evidences which have come before the trial court. The appellate court could not have assumed a role of a trial court.

13. From the said judgment of Hon'ble Supreme Court, it is evidently clear that that Court could have remanded the matter only in very exceptional case where it is found that there is a defect of procedure or a manifest error of law resulting a flagrant miscarriage of justice is taken place in the course of the trial Court deciding the case. However, in the instant case, the trial Court in spite of the said alleged deficiency of not examining the Doctor, yet, has reached to the conclusion that the case of the prosecution has been proved and the charge against the applicants for the offence under Section 498-A read with Section 34 of IPC has been established. Thus, it cannot be said that there was a defect of procedure on the part of the trial court while conducting the trial or that there has been a manifest error of law in the course of conducting the trial court on the part of the prosecution as well as the trial court.

14. Recently also the Hon'ble Supreme Court in the case of Mary Pappa Jebamani v. Ganesan and others [2014 AIR SCW 417] has reiterated the fact that only in an extraordinary situation when the first trial is found to be a farce and mock trial could justify the direction of the appellate court for retrial.

9. The learned appellate court remanded the case for examination of

hand writing expert but from the light of the above dismissal by

Hon'ble Apex Court and this Court, it is clear that the appellate court

could not have and does not have the power to remand the case for

retrial so as to fill up the lacunae on the part of the prosecution and

the trial court more particularly, when the judgment under-challenge

before the appellate court was against the conviction and sentence.

Moreover, the prosecution has also not agreed with the decision of

the trial court in any manner as the decision of the trial court has not

been challenged by the prosecution.

10. Thus, for the foregoing reasons, the present petition is allowed and

the impugned judgment dated 30.12.2021 passed by the learned