Chattisgarh High Court
Rajendra Prasad vs State Of Chhattisgarh on 18 March, 2025
1
2025:CGHC:12857
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRR No. 369 of 2022
1 - Rajendra Prasad S/o Shri Tiharuram Aged About 50 Years Caste Jharia
R/o Village - Kohpani, Thana- Tapkara, District - Jashpur (C.G.)
2 - Sachindra Sahu, S/o Shri Tiharuram Aged About 25 Years Caste Jharia
R/o Village Tildega Thana Pathalgaon Distt. - Jashpur (C.G.)
3 - Plasidiyus Toppo S/o Shri Rafail Toppo Aged About 37 Years Caste
Jharia R/o Village Tildega Thana Pathalgaon Distt. - Jashpur (C.G.)
... Applicants(s)
versus
1 - State Of Chhattisgarh Through The District Magistrate Jashpur, Distt.
Jashpur (C.G.)
2 - Station House Officer Police Station Pathalgaon Distt. Jashpur (C.G.)
---Respondents
(Cause Title taken from Case Information System)
For applicants : Mr. Rajendra Patel, Advocate on behalf of Mr.
Sunil Sahu, Advocate.
For Respondent-State : Mrs. Pragya Shrivastava, Dy. G.A.
Hon'ble Mr. Arvind Kumar Verma, Judge
Order on Board
18/03/2025
1. This revision is directed against the impugned judgment dated 19.01.2022
passed in Criminal Appeal No. 03/2020 by the learned Additional Session
Judge Patthalgaon, District Jashpur (C.G.), arising out of the order dated
17.10.2018 in Criminal Case No. 357/2012 passed by the learned Judicial
Magistrate First Class Patthalgaon, District Jashpur (C.G.) whereby the
applicants were prosecuted for the offences punishable under section 420,
467, 468, 471/34 of IPC registered at Police Station Patthalgaon, Distt.-
Jashpur (C.G.) in connection with Crime No. 67/2012, and after trial they
were acquitted from the charges after due process of trial. Thereafter, the
acquittal order of the applicants was challenged by the respondent No. 1 by
filling the appeal under section 378 of Cr.P.C. before the court of Session
and the learned First Additional Session Judge allowed the appeal
remanded the case for retrial by passing the impugned order.
2. Facts of the present case are that complainant R. P. Kripal Tahsildar made a
report on 10.04.2012 against the applicants with the averment that a land of
Khasra No. 564/3, 564/4, 564/5 area 0.728, 0.525 and 0.761 Hectare was
granted by the Govt. to Rajendra Prasad, Sachindra and Khatibai under the
Scheme of Bhudan and without permission of the Govt. with collusion of the
Patwari Plasidiyus Toopo the land in question was sold so the FIR has been
registered and after investigation charge-sheet is filed.
3. The learned trial court after filling of the charge-sheet framed the charges
against the applicants they denied the same and claim to be tried so the
learned trial court examine as many as 4 prosecution witness after
appreciate the statement / evidence available on record acquitted the
applicants from the above mentioned charges vide judgment dated
17.10.2018. Thereafter the respondent No. 1 State file the appeal against the
acquittal under section 378 of Cr.P.C. before the ASJ. The learned ASJ
allowed the appeal remanded the case for retrial by passing the impugned
order and ordered for reexamination of the witnesses.
4. Learned counsel for the applicant submits that the applicants have faced the
trial as well as appeal for about 11 years and all of sudden the learned
appellate court passed the impugned judgment by setting aside the trial
court judgment and directed to examine the witness R. K. Kripal, Jivendra
Lakda and also proved the document and passed the fresh judgment within
a period of 6 months. The remand is not permissible to fill up the lacuna by
the prosecution and it is settled principle of law that the benefit of doubt goes
to accused but here the learned appellate court remanded the case and
directed to reexamine the witness which is not permissible under the law.
5. In support of his contention, learned counsel for applicant placed reliance
upon a judgment of the Supreme Court in the case of Nasib Singh Vs.
State of Punjab and Another reported in 2022 (2) SCC 89. Learned
counsel for applicant also relied upon a judgment of the Supreme Court in
the case of Ajay Kumar Ghoshal Vs. State of Bihar and Another
reported in 2017 (12) SCC 699.
6. Learned State Counsel submits that the judgment of acquittal declared by
the trial court on 17.10.2018 is clearly erroneous as it was declared without
examination the important evidence and documents available on record. It
appears that the decision of acquittal of the trial court dated 17.10.2018
keeping in view of the loss of justice to the prosecution, is set aside and is
sent back to the trial court with the direction that the trial court, after
providing an opportunity of evidence to the prosecution applicant/witnesses
and Investigation Officer on their evidence and the documents submitted by
them and after providing adequate opportunity of hearing to the
respondent/accused, should re-register the Criminal Case No. 357/12 in the
criminal register afresh for reconsideration and declare the decision again
within six months on the basis of merit and demerits.
7. Learned counsel for the State submits that, the impugned order passed by
the judicial authorities in judicial capacity and the same are well reasoned
order based on the findings and reasoning's mentioned therein, the serious
sections have been imposed in the case, which is based on documentary
evidence and the trial court has not got the documents marked as exhibits
nor has it called for the evidence of documentary witnesses. The trial court
has passed a judgment of acquittal without calling the evidence of
witnesses, which is not upheld as it is against the law. The documents
attached to the case will be looked into by the trial court, it has been
assumed because, for the disposal of the case, the decision of acquittal has
been passed without recording the statement of the applicant R.K. Kripal
(the then Tehsildar) and the Investigation Officer Sub Inspector Jivendra
Lakra, which is not sustainable. Therefore, impugned order passed by the
learned Court below, is proper, legal, and strictly in accordance with law and
within the jurisdiction and there is no infirmity or illegality in the same.
8. I have learned counsel for the respective parties and perused the record and
orders of the court below.
9. Factual matrix of the case are that the complainant R.P. Kripal Tahsildar
made a report on 10.04.2012 against the applicants with the averment that a
land of Khasra No. 564/3, 564/4, 564/5 area 0.728, 0.525 and 0.761 Hectare
was granted by the Govt. to Rajendra Prasad, Sachindra and Khatibai under
the Scheme of Bhudan and without permission of the Government with
collusion of the Patwari Plasidiyus Toppo the land in question was sold so
the FIR has been registered and after investigation charge sheet is filed. The
learned court after filling of the charge sheet framed the charges against the
applicants they denied the same and claim to be tried so the learned trial
court examine as many as 4 prosecution witness after appreciate the
statement / evidence available on record acquitted the applicants from the
above mentioned charges vide judgment dated 17.10.2018. The respondent
No. 2 State filed the appeal against the acquittal under Section 378 of
Cr.P.C. before the ASJ. The Appellate Court passed the impugned judgment
by setting aside the judgment of the trial Court and directed to examine the
witnesses R.K. Kripal, Jivendra Lakda.
10. The Hon'ble Supreme Court in the case of Nasib Singh Vs. State of
Punjab and Another reported in 2022 (2) SCC 89 has held in Paragraph 33
as under:-
"33. The principles that emerge from the decisions of this
Court on retrial can be formulated as under:
(i) The Appellate Court may direct a retrial only in
'exceptional' circumstances to avert a miscarriage of justice;
(ii) Mere lapses in the investigation are not sufficient to
warrant a direction for re- trial. Only if the lapses are so grave
so as to prejudice the rights of the parties, can a retrial be
directed;
(iii) A determination of whether a 'shoddy' investigation/trial
has prejudiced the party, must be based on the facts of each
case pursuant to a thorough reading of the evidence;
(iv) It is not sufficient if the accused/ prosecution makes a
facial argument that there has been a miscarriage of justice
warranting a retrial. It is incumbent on the Appellant Court
directing a retrial to provide a reasoned order on the nature
of the miscarriage of justice caused with reference to the
evidence and investigatory process;
(v) If a matter is directed for re-trial, the evidence and record
of the previous trial is completely wiped out; and
(vi) The following are some instances, not intended to be
exhaustive, of when the Court could order a retrial on the
ground of miscarriage of justice :
a) The trial court has proceeded with the trial in the absence
of jurisdiction;
b) The trial has been vitiated by an illegality or irregularity
based on a misconception of the nature of the proceedings;
and
c) The prosecutor has been disabled or prevented from
adducing evidence as regards the nature of the charge,
resulting in the trial being rendered a farce, sham or
charade."
11. The Supreme Court also in the case of Ajay Kumar Ghoshal Vs. State of
Bihar and Another reported in 2017 (12) SCC 699 has held in Paragraph
12 as under:-
"De novo' trial means a "new trial" ordered by an appellate
court in exceptional cases when the original trial failed to
make a determination in a manner dictated by law. The trial
is conducted afresh by the court as if there had not been a
trial in first instance. Undoubtedly, the appellate court has
power to direct the lower court to hold 'de novo' trial. But
the question is when such power should be exercised. As
stated in Pandit Ukha Kolhe vs. State of Maharashtra (1964)
SCR 926, the Court held that:
"An order for retrial of a criminal case is made in exceptional
cases, and not unless the appellate court is satisfied that the
Court trying the proceeding had no jurisdiction to try it or
that the trial was vitiated by serious illegalities or
irregularities or on account of misconception of the nature of
the proceedings and on that account in substance there had
been no real trial or that the Prosecutor or an accused was,
for reasons over which he had no control, prevented from
leading or tendering evidence material to the charge, and in
the interests of justice the appellate Court deems it
appropriate, having regard to the circumstances of the case,
that the accused should be put on his trial again. An order of
re-trial wipes out from the record the earlier proceeding, and
exposes the person accused to another trial which affords
the prosecutor an opportunity to rectify the infirmities
disclosed in the earlier trial, and will not ordinarily be
countenanced when it is made merely to enable the
prosecutor to lead evidence which he could but has not
cared to lead either on account of insufficient appreciation of
the nature of the case or for other reasons."
12. The appellate court hearing a criminal appeal from a judgment of conviction
has power to order the retrial of the accused under Section 386 of the Code.
That is clear from the bare language of Section 386(b). Though such power
exists, it should not be exercised in a routine manner. A 'de novo trial' or
retrial is not the second trial; it is continuation of the same trial and same
prosecution. The guiding factor for retrial must always be demand of justice.
Obviously, the exercise of power of retrial under Section 386(b) of the Code,
will depend on the facts and circumstances of each case for which no strait
jacket formula can be formulated but the appellate court must closely keep in
view that while protecting the right of an accused to fair trial and due process,
the people who seek protection of law do not lose hope in legal system and
the interests of the society are not altogether overlooked.
13. From the said judgment of the Hon'ble Supreme Court, it is evidently clear
that the High 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.
14. However, in the instant case, the evidence of witnesses R.K. Kripal and
Jivendra Lal Lakra from side of prosecution is important and prosecution
failed to produce aforesaid witnesses after giving ample opportunity by the
trial Court. The prosecution also failed to prove the case by making the
evidence and documents presented as exhibits before the trial Court. The trial
Court in-spite of the said alleged deficiency of not examining the said
witnesses, yet has reached to the conclusion that the case of the prosecution
has not been proved and accused/applicants are acquitted from the charges
levelled against them.
15. From the two decisions referred to herein above and the judgment referred
to by the Hon'ble Supreme Court while passing these two judgments, it is
evidently clear that the appellant Court could not have and does not have the
power to remand the case for retrial so as to fill up the lacuna on the part of
the prosecution and the trial Court, more particularly, when the judgment
under challenge before the appellant Court was against the acquittal of the
applicants/accused. Secondly, criminal case was filed on 10.04.2012 and
after more than 6 years, the judgment of acquittal was passed on 17.10.2018,
till then aforesaid witnesses has not been examined by the prosecution.
16. After analyzing all the facts, this Court finds it appropriate to set aside the
impugned order dated 19.01.2022 passed in Criminal Appeal No. 03/2020
and order of the trial Court dated 17.10.2018 is restored.
17. Accordingly, present Criminal Revision is allowed.
18. Let a copy of this order and the original records be transmitted to the
court concerned forthwith for necessary information and compliance.
Sd/-
(Arvind Kumar Verma)
Judge
Jyoti
