Jharkhand High Court
Puvelil Eapen Eapen @ P.E. Eapen vs The State Of Jharkhand on 4 August, 2022
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
W.P.(Cr.) No.286 of 2022
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1.Puvelil Eapen Eapen @ P.e. Eapen, aged about 66 years, son of P.M. Eapen
2.Vadakkedathu Issac Thomas @ V.I.Thomas, aged about 65 years, son of V.
Issak
Both are resident of House No.15-D/1, Western Avenue, Hotel Blue
Diamond, P.O. Head Post Office, P.S. Bokaro Steel City, District Bokaro
..... Petitioners
-- Versus --
1.The State of Jharkhand
2.Harendra Kumar, son of not known to the petitioners, working as
In-charge Block Supply Officer, Chandankyari, P.O. and P.S. Chandankyari,
District -Bokaro ...... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners :- Mr. Gaurang Jajodia, Advocate
For the State :- Mr. Anish Mishra, Advocate
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2/04.08.2022 Heard Mr. Gaurang Jajodia, the learned counsel appearing on
behalf of the petitioners and Mr. Anish Mishra, the learned counsel
appearing on behalf of the respondent State.
This petition has been filed for quashing the order dated
23.08.2019 passed in connection with B.S.City P.S.Case No.349 of 2011,
corresponding to G.R.No.1224 of 2011 whereby the learned court has
directed for de-novo trial, pending in the court of learned Sub Divisional
Judicial Magistrate, Bokaro.
The learned counsel appearing on behalf of the petitioners submits
that the case is pending since last ten years. He further submits that the
case was instituted on the basis of written report of the informant in
which he has stated and alleged that pursuant to Memo No.1129 dated
13.09.2011, a team was constituted comprising of Executive Magistrate,
Circle Inspector, Incharge Block Supply Officer for the prevention of
unauthorized use of Domestic LPG Cylinders in commercial use and for
this purpose, a raid was conducted in different places. On 14.09.2011 at
about 10.20 hours, a raid was conducted in the New Coffee House shop
under the B.S. City P.S. from where domestic LPG cylinders were
recovered, the owner of the said shop was not present there hence the
seizure list was prepared and a copy of that was handed over to the
manager of the said shop. Later on, on 14.09.2011 at about 11.00 hours
again a raid was conducted at co-operative colony in the house No.S/03
in which a hotel was situated with the name of Manpasand Sweets in
which the sweets were being prepared. On this background, the FIR was
lodged.
The learned counsel submits that the petitioner no.1 is
manager and petitioner no.2 is worker of the said Blue Diamond Hotel.
He submits that charge sheet has been submitted against seven persons
including the petitioners under section 7 of the Essential Commodities
Act, 1959 and L.P.G. (Regulation and Distribution) Order, 2000 and the
case was pending before the court of learned Judicial Magistrate,
1st Class, Bokaro and subsequently by order of learned District and
Sessions Judge, the said case was transferred to learned S.D.J.M., Bokaro
and learned S.D.J.M. by order dated 28.03.2019 has ordered that the
case will proceed de-novo. He submits that even there is no reason
disclosed in the said order. He relied in the case of Ajay Kumar
Ghoshal v. State of Bihar, (2017) 12 SCC 699, paragraph no.12 of
the said judgment is quoted below:
"12. "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
Ukha Kolhe v. State of Maharashtra, the Court held that: (AIR p.
1537, para 11)
"11. 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 retrial 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."
On the other hand, Mr. Mishra, the learned counsel appearing on
behalf of the respondent State submits that de-novo trial is permissible in
exceptional circumstances and for that, a reasoned order is required to
be passed.
The Court has perused the impugned order and finds that in the
impugned order no reason has been assigned why de-novo trial shall
start and while the case is transferred in another court, there is no
requirement to start de-novo trial. There are procedures prescribed in the
Cr.P.C and section 326 Cr.P.C speaks of recording of the evidence and
further trial if the Judge is transferred how to go through further and the
learned court has not disclosed any reason of de-novo trial. However, the
appellate court may order for de-novo trial in a particular case if any
illegality was found in the trial. The judgment relied by the petitioner is
helping the case of the petitioner.
Accordingly, the impugned order dated 23.08.2019 passed in
connection with B.S.City P.S.Case No.349 of 2011, corresponding to
G.R.No.1224 of 2011 whereby the learned court has directed for de-novo
trial, pending in the court of learned Sub Divisional Judicial Magistrate,
Bokaro is set aside.
The learned court shall proceed in accordance with law from the
stage of receiving of the file in connection with B.S.City P.S.Case No.349
of 2011, corresponding to G.R.No.1224 of 2011.
W.P.(Cr.) No.286 of 2022 stands allowed and disposed of.
I.A., if any, also stands disposed of.
( Sanjay Kumar Dwivedi, J.)
SI/,
