Madhya Pradesh High Court
Deepsingh vs The State Of Madhya Pradesh on 23 August, 2023
Author: Prem Narayan Singh
1
IN THE HIGH COURT OF MADHYA
PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CRIMINAL REVISION No. 3548 of 2021
BETWEEN:-
DEEPSINGH S/O PREMSINGH,
1.
AGED ABOUT 29 YEARS,
OCCUPATION: SERVICE
R/o. VILL-RICCHODA
TEH. SHUJALPUR
(MADHYA PRADESH)
JITENDRA S/O MOTILAL,
2.
AGED ABOUT 29 YEARS,
OCCUPATION: SERVICE
R/O. VILLAGE BAVANHEDA,
ARAKSHI KENDRA SHUJALPUR
(MADHYA PRADESH)
.....PETITIONERS
(SHRI VIVEK PHADKE - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
THROUGH DIST. MAGISTRATE
DIST.:SHAJAPUR (MADHYA PRADESH)
THE STATE OF MADHYA PRADESH
STATION HOUSE OFFICER
THROUGH POLICE STATION ARAKSHI
KENDRA, SHUJALPUR,
DIST.:SHAJAPUR (MADHYA PRADESH)
.....RESPONDENTS
( SHRI SURENDRA GUPTA - GOVT. ADVOCATE)
Signature Not Verified
Signed by: SUMATHI
Signing time: 23-08-
2023 17:58:44
2
......................................................................................................
Reserved on - 10.08.2023
Delivered on - 23.08.2023
----------------------------------------------------------------------------------------------------
This revision coming on for hearing this day, the court passed the
following:
ORDER
Petitioner has preferred this revision petition under Section 397
read with Section 401 of Cr.P.C., being aggrieved by the judgment
dated 14.05.2020 passed by learned Fourth Additional Sessions
Judge, Shujalpur, District Shajapur, in Criminal Appeal No.385/2015
whereby learned appellate Court has set aside the judgment dated
08.10.2015 passed by Judicial Magistrate First Class, Shujalpur,
District Shajapur, in Criminal Case No.1457/2011 and remitted the
case back to the trial Court for re-examining the prosecution witness
under Section 311 of Cr.P.C and to pass a reasoned and cogent order.
2. In order to decide this criminal revision, brief facts of the case is
that the petitioners were tried by the Judicial Magistrate First Class,
Shujalpur, District Shajapur and after considering the evidence available
on record the petitioner no.1 was convicted under Sections 419, 120(B)
of I.P.C, sentenced to undergo 1 year R.I., and fine of Rs.100/- with
default stipulations and petitioner no.2 was convicted for offence under
Section 120(B) of IPC, 3(d)4 of M.P. Manyata Prapt Parisksha
Adhiniyam 1937, sentenced to undergo 1 year and 1 year R.I. and fine
of Rs.100/- under each sections, with default stipulations. Being
aggrieved by the aforesaid judgment, the petitioners have filed an appeal
Signature Not Verified
Signed by: SUMATHI
Signing time: 23-08-
2023 17:58:44
before Fourth Additional Sessions Judge, Shujalpur, District Shajapur,
wherein learned Appellate Court in compliance of law laid down by this
Court in the Case of Mussauddin Ahmed vs. State of Assam, reported
as (2009)14 SCC 541 remanded the matter to the trial Court for re-
examining the prosecution witness under Section 311 of Cr.P.C and to
pass a reasoned and cogent order after affording the opportunity of
defence evidence. Being dissatisfied by the impugned order, the
petitioner has knocked the portal of this Court by filing this revision
petition submitting that the impugned judgment passed by learned
appellate Court is neither legal nor proper.
3. The petitioner in his revision memo and during the course of
arguments submitted that the impugned judgment of the learned
appellant Court is against the fact and also against the settled principle
of law. The petitioners have been charged twice for the same offence
due to the perverse directions issued vide judgment dated 14.05.2020. It
is submitted that first and foremost, it is visualized from the bare perusal
of the impugned judgment that learned appellate Court has remitted
back the matter for the purpose of filling up the loop holes in the
prosecution case, which is wrong and illegal, therefore not sustainable in
the eyes of law. It is also submitted that in case, if the incriminating
piece of evidence is available against accused and opportunity to explain
that evidence has not been afforded to the accused, then on that basis
conviction cannot be carried out.
4. In the course of arguments, learned counsel for the appellant
relied upon the judgment passed by Hon‟ble Supreme Court in the case
of Satyajit Banerjee & Ors. vs. State of West Bengal & Ors. reported
Signature Not Verified
Signed by: SUMATHI
Signing time: 23-08-
2023 17:58:44
in (2005) 1 SCC 115 wherein it has been held that direction for retrial
should not be made in all or every case, it is only when the extraordinary
situation of the first trial being found to the a farce and a "mock trial"
obtains. It is further submitted that the remand of the case for retrial and
for fresh decision from stage one is impermissible as there is
apprehension on part of the accused that these observations would bias
the trial Court. The directions of the learned Appellate Court for retrial
and resultantly reinvestigation of the matter would make the earlier
investigation and trial futile.
5. Learned counsel further placed reliance upon the judgment
delivered by Hon‟ble Apex Court in the case of Rajendra Prasad vs.
Narcotic Cell reported in (1996)6 SCC 110 and submitted that though
the witnesses can be recalled and re-summoned, but power under
Section 311 of Cr.P.C., cannot be exercised to fill up lacuna in the
prosecution case. Lacuna is inherent weakness or a latent wedge in the
matrix of the prosecution case. In the present case, at the time of
framing charges, initially the prosecution had opportunity to levy other
charges, but they did not do so, which is an inherent weakness, hence
power under Section 311 of Cr.P.C cannot be exercised to fill up the
lacuna present in the case. On these grounds learned counsel for the
petitioner requested to set aside the order of the appellate Court.
5. On the contrary, learned Govt. Advocate remonstrated that it is
duty of the Court to examine the accused and the evidence properly.
Learned counsel referring to the judgment passed by Honb‟le Apex
Court in the case of Rajendra Prasad (supra) has held that Lacuna in
the prosecution must be understood as the inherent weakness or a latent
Signature Not Verified
Signed by: SUMATHI
Signing time: 23-08-
2023 17:58:44
wedge in the matrix of the prosecution case. The advantage of it should
normally go to the accused in the trial of the case, but an oversight in the
management of the prosecution cannot be treated as irreparable lacuna.
No party in trial can be foreclosed from correcting errors. If proper
evidence was not adduced or a relevant material was not brought on
record due to any inadvertence, the Court should be magnanimous in
permitting such mistakes to be rectified. Therefore, in view of the
aforesaid, counsel submitted that if the appellate Court has remanded
back the case for taking additional evidence on record after conclusion
of trial, it cannot be regarded as against law. Hence no case is made out
for interference in this revision petition.
6. In the back drop of the rival submissions, the conundrum of the
case is as to whether the order of Appellate Court remitting back the
case to trial Court for taking additional documents and evidence on
record after conclusion of entire trial is incorrect in the eyes of law and
facts.
7. On this aspect I have gone through the judgment of learned
appellate Court and trial Court. It is evident from concluding paras of
the impugned judgment, that the applicant Deepsingh, impersonating
himself as Jitendra Malviya has appeared in examination and on being
apprehended, on the basis of oral evidence, the charges have been
framed against the applicants. Learned appellate Court further observed
that on considering the FIR (Ex-P/6), it is unfolded that from the
beginning the intention of prosecution was to register a case of cheating
on the basis of oral version rather than on written version and that is
why the offence under Section 467, 468 and 471 of IPC, 1860 has not
Signature Not Verified
Signed by: SUMATHI
Signing time: 23-08-
2023 17:58:44
been registered against the appellant and initially offence under Section
419 of IPC, was only registered. Further learned appellate Court has
pointed out some other defects of investigation and criticized the whole
investigation and proceedings of trial. Further in para -10 of the
impugned judgment the learned appellate Court concurring the
arguments of learned Public Prosecutor held that on technical grounds of
not producing the substantial evidence appellant cannot be convicted but
rather it would be appropriate to remit the case back to the trial Court for
affording opportunity to prosecution to adduce the material documents.
8. Now the question arises as to whether such type of observation
can be passed for remanding the case for a fresh trial?
9. In this regard learned trial Court has relied upon the judgment of
Apex Court rendered in Mussauddin Ahmed (Supra), having gone
through the facts of the aforesaid precedent, it is elucidated that owing
to weakness of prosecution case and after considering other
circumstances, the Hon‟ble Apex Court opined that prosecution failed to
prove its case against the appellant beyond reasonable doubt and
accordingly, the appellant was acquitted. However, in the aforesaid
precedent, Hon‟ble Apex Court has neither remanded the case to the
trial Court for a fresh trial nor established any principle with regard to
remanding the criminal matters. In addition to that such type of
observations made by first Appellate Court in the case at hand, certainly
influence the view of the trial Court, which does not suit the principle of
the criminal jurisprudence.
Signature Not Verified
Signed by: SUMATHI
Signing time: 23-08-
2023 17:58:44
10. On this aspect, this Court can profitably rely upon the following
excerpts of judgment of Hon‟ble Apex Court rendered in Satyajit
Banerjee and Ors. vs. State of West Bengal and Ors. (2005)1 SCC 115:
" Since strong reliance has been placed on the Best Bakery
Case (Gujarat Riots Case- supra) it is necessary to record a note
of caution. That was an extraordinary case in which this Court
was convinced that the entire prosecution machinery was trying
to shield the accused i.e. the rioters. It was also found that the
entire trial was a farce. The witnesses were terrified and
intimidated to keep them away from the court. It is in the
aforesaid extraordinary circumstances that the court not only
directed a de novo trial of the whole case but made further
directions for appointment of the new prosecutor with due
consultation of the victims. Retrial was directed to be held out
of the State of Gujarat.
The law laid down in the 'Best Bakery Case' in the aforesaid
extraordinary circumstances, cannot be applied to all cases
against the established principles of criminal jurisprudence.
Direction for retrial should not be made in all or every case
where acquittal of accused is for want of adequate or
reliable evidence. In Best Bakery case, the first trial was found
to be a farce and is described as 'mock trial.' Therefore, the
direction for retrial was in fact, for a real trial. Such
extraordinary situation alone can justify the directions as made
by this Court in the Best Bakery Case(supra)."
11. In view of the aforesaid verdict, the matter can be remitted only in
extra ordinary and exceptional circumstances for a de novo trial and
only to prevent and avert the miscarriage of justice. In this regard, the
law laid down in Nasib Singh vs. State of Punjab reported in (2022)2
SCC 89 is also worth referring here:-
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;
Signature Not Verified
Signed by: SUMATHI
Signing time: 23-08-
2023 17:58:44
(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."
12. In view of the aforesaid settled proposition, it is crystal clear that
the criminal matter can be remanded back to the trial Court for re-trial
only in exceptional conditions and only to eschew the miscarriage of
justice. In the case at hand, learned appellate Court has not assigned any
reasons as to how the miscarriage of justice is going to happen against
any party. The learned appellate Court has also not disclosed anything
by which it can be assumed that the trial Court has proceeded with the
trial in the absence of jurisdiction or trial has been vitiated by any
illegality or irregularity.
Signature Not Verified
Signed by: SUMATHI
Signing time: 23-08-
2023 17:58:44
13. That apart even assuming the defect or irregularity was curable,
the question remains as to whether this case can be remanded back for re
trial. Admittedly, nearly about 12 years had been lapsed since the date
of incident, so far as the requirement of additional evidence is
concerned, the appellate Court is well within the jurisdiction under
Section 391 of Cr.P.C to call necessary evidence and examine them in
accordance with law.
14. In conspectus of the aforesaid settled prepositions and
deliberations in entirety, the impugned order of learned appellate Court
qua remanding the case to trial Court for a fresh trial is found perverse
and against law.
15. Accordingly, the petition is partly allowed and the impugned
order of First Appellate Court is set aside to the extent of remanding the
case for a fresh trial to the learned trial Court and in sequel thereof,
having remitted the case, the learned appellate Court is directed to
decide the appeal on the basis of material available on record and the
submissions of both the parties, in accordance with law. Both the parties
are directed to appear before the appellate court on 06.09.2023.
16. Pending I.A(s)., if any stands disposed of.
17. Resultantly, Criminal Revision stands disposed of.
18. A copy of this order be sent to learned appellant Court as well as
to the learned trial Court for necessary compliance.
(PREM NARAYAN SINGH)
JUDGE
sumathi
Signature Not Verified
Signed by: SUMATHI
Signing time: 23-08-
2023 17:58:44
