Mistry Jaswantbhai Manilal vs State Of Gujarat
2023 Latest Caselaw 5111 Guj

     R/CR.RA/729/2023                                      ORDER DATED: 03/07/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/CRIMINAL REVISION APPLICATION NO. 729 of 2023
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                        MISTRY JASWANTBHAI MANILAL
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR GAURAV J DAVE(6665) for the Applicant(s) No. 1
MR PRANAV TRIVEDI, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                 Date : 03/07/2023

                                  ORAL ORDER

1. Mr. Gaurav Dave, learned advocate for the

applicant submits that the applicant being the

accused no.1 was acquitted along with the

other co-accused by the learned Chief Judicial

Magistrate, Mehsana by order dated 11.1.2019

in Criminal Case no.4392/06. Aggrieved by the

order and judgment of acquittal, the State

preferred an acquittal appeal before the

learned Sessions Court, Mehsana wherein co-

accused no.3's acquittal was confirmed in the

appeal while the present applicant was found

guilty for the offence punishable under

Sections 465, 468, 477A, 471 and 114 of the

R/CR.RA/729/2023 ORDER DATED: 03/07/2023

IPC while benefit of doubt was given for the

offence punishable under Sections 406, 408,

420 of the IPC. Mr. Dave states that the

applicant is before this Court challenging the

judgment of conviction stating that the

judgment itself is erroneous as the learned

Sessions Judge had after the order of

conviction sent the matter back to the Trial

Court for passing an appropriate order of

sentence.

2. Mr. Pranav Trivedi, learned APP, referring to

the provisions under Section 386 of the Code

of Criminal Procedure, 1973, submits that the

powers of the Appellate Court in case of an

appeal from an order of acquittal are

specified in clause (a) of Section 386 of the

Code of Criminal Procedure, 1973 and the

learned Sessions Judge while reversing the

order of acquittal after having found accused

guilty was required to pass sentence on him

and thus, had made a prayer to direct the

R/CR.RA/729/2023 ORDER DATED: 03/07/2023

learned Sessions Court to pass appropriate

sentence in the order of conviction so passed.

3. Countering the same, advocate Mr. Dave

submitted that the very said aspect is one of

his ground for revision and thus, stated that

the applicant is required to be protected till

then, as following the conviction, he may be

sent to jail as his interim bail and bond

shall be assumed to have been canceled.

4. Admittedly, the appeal before the learned

Sessions Judge was under Section 378 of the

Cr.P.C. Section 386 read with clause (a)

decides the powers of the Appellate Court in

case of an appeal from order of acquittal. The

relevant provision is referred to hereunder

for better understanding of the scope of the

provision.

               "386.        Powers         of       the     Appellate
               Court.-

               After   perusing   such   record                         and
               hearing    the   appellant    or                         his





      R/CR.RA/729/2023                                       ORDER DATED: 03/07/2023




               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;"

5. The provision thus states that in an appeal

from an order of acquittal, the Appellate

Court has the power to either reverse such

order and direct further inquiry to be made,

or that, the accused be retried or committed

for trial, as the case may be, while in a case

where the Appellate Court comes to the

conclusion of declaring the accused as guilty,

then the said Court would be required to pass

sentence on him according to law. Here in the

present case, the learned Appellate Court,

while reversing the judgment of acquittal qua

R/CR.RA/729/2023 ORDER DATED: 03/07/2023

the present applicant who was accused no.1

before the Trial Court and opponent no.1

before the Appellate Court, has found him

guilty under Sections 465, 468, 477A, 471 and

114 of the IPC but while passing the said

order of conviction under sections, the

learned Sessions Judge further directed to

send record and proceedings before the Trial

Court for passing an order of sentence.

6. The learned Sessions Judge thus has committed

material error in sending the record to the

Trial Court for order of sentence, since the

Appellate Court is not empowered to do so.

Further, sub-section (2) of Section 235 of the

Cr.P.C. obliges the Court to hear the accused

on the question of sentence after the

conviction, if not proceeded in accordance to

the provision of Section 360, and, on hearing

the accused on the question of sentence has to

pass sentence of him according to law. The

Court thus becomes duty bound to adjourn the

R/CR.RA/729/2023 ORDER DATED: 03/07/2023

matter to a further date after recording the

conviction so as to call upon both the sides

to hear on the question of sentence and thus,

is obliged to pass sentence on accused

according to law. Here the Appellate Court was

obliged under law to hear the accused on the

quantum of sentence in accordance with sub-

section (2) of Section 235 of the Cr.P.C. The

Appellate Court has failed to follow the said

procedure and has directed the function to be

undertaken by the Trial Court who had already

passed the sentence of acquittal.

7. In case of Fedrick Cutinha v. State of

Karnataka, 2023 LiveLaw (SC) 326, the case

before the Hon'ble Supreme Court was with the

facts that 11 accused were acquitted by the

Trial Court and the acquittal of 9 of them had

been affirmed by the High Court while the

accused nos.1 and 3 were convicted under

Section 302 read with Section 34 of the IPC

with life imprisonment and under Section 326

R/CR.RA/729/2023 ORDER DATED: 03/07/2023

read with Section 34 of the IPC for causing

grievous injuries with imprisonment of 5

years. Aggrieved by the conviction, both the

accused had preferred separate appeals and it

was urged that the High Court as an Appellate

Court in convicting and sentence the accused

ought to have given both of them an

opportunity of hearing on the quantum of

punishment before sentencing them for life

imprisonment and imprisonment for 5 years

where it was held on the facts of the case

that there is no room to doubt the powers of

the Appellate Court and that it has full power

to review, reappreciate and reconsider the

evidence upon which the order of acquittal is

founded. However, the learned Appellate Court

has to bear in mind that in case of acquittal

there is double presumption of innocence in

favour of the accused. First, the presumption

of innocence is available to all accused under

the criminal jurisprudence as every person is

R/CR.RA/729/2023 ORDER DATED: 03/07/2023

presumed to be innocent unless proved to be

guilty before the competent court of law.

Secondly, the accused having secured the

acquittal, the presumption of their innocence

gets further reinforced and strengthened.

Therefore, the appellate court ought not to

lightly interfere with the order of acquittal

recorded by the trial court unless there is

gross perversity in the appreciation of the

evidence and even if two views are possible,

it should follow the view taken by the trial

court rather than choosing the second possible

version. This Court at this stage is not

entering into merits of the conviction but is

only on the aspect whether the learned

Sessions Judge being an Appellate Court was

right in sending the record back to the Trial

Court for passing order of sentencing the

accused. Section 235(2) mandates that on an

order of judgment of conviction, the Judge,

unless proceeds according to the provision of

R/CR.RA/729/2023 ORDER DATED: 03/07/2023

Section 360, is required to hear the accused

on the question of sentence and then pass

sentence on him according to law. Such

function of passing the sentence in accordance

with law cannot be delegated to the Trial

Court. The accused is required to be given an

opportunity on the question of sentence which

is a mandatory procedure. If at all on the

date of conviction, the accused is not

available, the Appellate Court should adjourn

the case to a future date and call upon both

the prosecution as well as the defence to

place relevant material bearing on the

question of sentence before it and then

sentence could be pronounced to be imposed on

the offender.

8. In case of Allauddin Mian v. State of Bihar,

(1989) 3 SCC 5, it was held that the order of

conviction and imposition of sentence before

the Court on the same day is illegal.

R/CR.RA/729/2023 ORDER DATED: 03/07/2023

9. In case of Mukund Lal v. The State & Anr. 1979

CriLJ 105, the Delhi High Court held that

normally in criminal case, the Appellate Court

has no power to remand to the Trial Court,

except for the purpose of retrial. In the said

case, the learned Sessions Judge had remanded

the case to the lower Court to afford an

opportunity of hearing on question of sentence

in terms of Section 235(2) of the Cr.P.C. and

it was held that such remand is irregular.

10. Learned APP further submits that the order of

the Appellate Court convicting the accused and

directing the Trial Court to pass an order of

sentence would also being irregular would also

create an illegality since the order of

passing the sentence would be by the Trial

Court who had already acquitted the accused

and thus, the said order of sentence would

give a scope for the accused to challenge the

sentence before the Appellate Court while he

has at present appeared before this Court by

R/CR.RA/729/2023 ORDER DATED: 03/07/2023

way of revision under Section 397 of the

Cr.P.C. challenging the finding of conviction.

Thus, the learned APP stated that it may lead

to a possibility of de novo trial before the

Trial Court who would give hearing to the

accused on the question of sentence under

Section 235(2) of the Cr.P.C. where the

accused may have the scope of leading fresh

evidence which would not be permissible in law

since the conviction is by the Appellate Court

and further stated that there would also be a

plea by the accused before the Trial Court to

sentence him for passing an order of minimum

sentence and in such case, there would not be

any necessity to give opportunity to the

accused on the question of sentence and such

situation would lead to an anomaly where the

direction of the Appellate Court would again

give the right to the accused to challenge the

sentence before the same Appellate Court.

11. In view of the reasons recorded hereinabove,

R/CR.RA/729/2023 ORDER DATED: 03/07/2023

the direction of the Appellate Court to send

the record to the Trial Court for taking the

decision on the sentence is quashed and set

aside. The learned Sessions Judge, Mehsana as

an Appellate Court is hereby ordered to pass

order of sentence according to law in view of

the power granted under Section 386 clause (a)

of the Cr.P.C.

12. It is kept open for the applicant to

thereafter raise grounds in the present

application against any order of sentence

passed by the learned Sessions Judge by

adopting due process of law and those grounds

could be incorporated in the application. The

exercise of passing the order of sentence be

completed as expeditiously as possible.

13. Accordingly, the present application stands

disposed of.

(GITA GOPI,J) Maulik