Dinesh vs The State Of Madhya Pradesh
2023 Latest Caselaw 18357 MP

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                                                                  CRR No.2281/2023

      IN THE HIGH COURT OF MADHYA PRADESH
                   AT I N D O R E
                                     BEFORE
      HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA

                  CRIMINAL REVISION No.2281 of 2023

BETWEEN:-
1. DINESH S/O LATE JHAPUSINGH KEWAT, AGED 50
YEARS, OCCUPATION: GOVT. SERVICE R/O JAIL RAOD
MANDLESHWAR TEHSIL MAHESHWAR KHARGONE
(MADHYA PRADESH)

2. NAGESH S/O DINESH, AGED 27 YEARS, OCCUPATION:
ADVOCATE R/O JAIL ROAD, MANDLESHWAR DISTT.
KHAROGNE (MADHYA PRADESH)
                                                                 .....PETITIONERS
(SHRI NILESH DAVE - ADVOCATE)

AND
THE STATE OF MADHYA PRADESH THROUGH POLICE
STATION MANDLESHWAR DISTT. KHARGONE (MADHYA
PRADESH)
                                                        .....RESPONDENT/STATE
(SHRI HEMANT SHARMA - GOVT. ADVOCATE)
                            Reserved on : 26.10.2023
                         Pronounced on : 02.11.2023
---------------------------------------------------------------------------------------

This revision having been heard and reserved for orders, coming on for pronouncement this day, this Court pronounced the following:

ORDERS This criminal revision u/S 397 r/w 401 of the Code Of Criminal Procedure, 1973 has been preferred by the petitioners/accused persons

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being aggrieved by the judgment dated 09.05.2023 passed by the Ist Additional Sessions Judge, West Nimar, Distt - Mandleshwar, in Cri. Appeal No.152/2021, whereby the learned Additional Sessions Judge has allowed the appeal and has set aside conviction and sentence and has remanded the case to frame appropriate charge and for the disposal of the case as per law. Appeal arising out of judgment dated 29.10.2021 in criminal case No.195/2014, wherein the learned trial Court had convicted the petitioners u/S 323 r/w 34 of IPC and sentenced to undergo imprisonment till the rising of the court and fine of Rs. 4,000/- (four counts) to each with default stipulation.

2. Facts of the case, in brief are that on 30.06.2014, at around 08:40 PM, the complainant Bhuwani Ram lodged a report stating that 3 months before the incident, accused Dinesh had given his boat to the complainant to row. On 30.06.2014, at around 08:15 PM, accused Dinesh had demanded back his boat on which accused Dinesh had abused him verbally and when the complainant asked to not abuse, then the accused Dinesh and his son co-accused Nagesh had given blow by means of lathi to the complainant. Wife of the complainant Rukmani and sons Vishnu and Mukesh came to intervene, then the petitioners/accused persons had given blows to them as well. In the act, complainant Bhuwani Ram, Rukmani, Vishnu and Mukesh had sustained injuries in distinct body parts. An FIR (Ex.P-1) has been lodged against the petitioners. After completion of investigation, charge- sheet has been filed.

3. The learned trial Court after hearing the parties had framed

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charge u/S 294, 323 in alternate 323 r/w 34 and 506 Part- II of IPC. After completion of prosecution witnesses, the petitioners/accused persons were examined u/S 313 of CrPC. The learned trial Court heard both the parties and passed the judgment of conviction and order of sentence dated 29.10.2021. Thereby, the learned trial Court has convicted the petitioners u/S 323 r/w S.34 of IPC only but has sentenced u/S 323 r/w S.34 of IPC (four counts) as discussed above. The petitioners/accused persons being aggrieved by the impugned judgment had filed appeal u/S 374 of Cr.P.C. before the Appellate Court, whereby the learned Appellate Court considered provisions of S.464 of Cr.P.C. and it was found that the trial Court had framed charge u/S 323 r/w 34 of IPC in respect of only injured Vishnu but without framing of charge in respect of Rukmani, Vishnu and Mukesh had convicted and sentenced the petitioners. Thereby, failure of justice has been occasioned and the trial Court has committed legal error. In this situation the learned Appellate Court exercising power as provided u/S 386 of Cr.P.C. remanded back the case to the trial Court with direction that the necessary charge be framed and trial be recommenced from the point immediately after the framing of charge.

4. Learned counsel for the petitioners submits that judgment of the Appellate Court is contrary to law and facts as well as is neither legal nor correct. The Appellate Court did not consider that the learned trial Court sentenced the petitioners u/S 323 r/w 34 of IPC in four counts. It is further submitted that petitioner No.1 is a Government Employee and he is right now a process server in the Barwah Court, Distt. - Khargone

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and petitioner No.2 Nagesh is professionally an Advocate in the Court of Mandleshwar. The appeal preferred by the petitioners/appellants, therefore, no question will arise for remand back. Therefore, impugned judgment is liable to be set aside. Learned counsel has placed reliance on the case of Nasib Singh V State of Punjab And Anr. [(2022) 2 SCC 89].

5. On the other hand, learned counsel for the respondent/State has supported the impugned and has prayed for rejection of the petition.

6. I have heard learned counsels for the parties and perused the records.

7. It is apposite to reproduce here the relevant provision of S.464 and S.386 of Cr.P.C., which runs as under:-

"Section 464 - Effect of omission to frame, or absence of, or error in, charge - (1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.

(2) If the Court of appeal, confirmation or revision, is of opinion that a failure of justice has in fact been occasioned, it may,---

(a) in the case of an omission to frame a charge, order that a charge be framed, and that the trial be recommended from the point immediately after the framing of the charge;

(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:

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Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction."

"Section 386. Powers of Appellate Court - After perusing such record and hearing the appellant or his 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) .....................................................

(b) in an appeal from a conviction---

(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same---

(c) .....................................................................

(d) .....................................................................

(e) .....................................................................

8. In the case of Nasib Singh (Supra) the Apex Court in Paragraph 33 - 33.6 has observed as under:-

"33. The principles that emerge from the decisions of this Court on retrial can be formulated as under:

33.1. The appellate court may direct a retrial only in "exceptional" circumstances to avert a miscarriage of

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justice.

33.2. Mere lapses in the investigation are not sufficient to warrant a direction for retrial. Only if the lapses are so grave so as to prejudice the rights of the parties, can a retrial be directed.

33.3. 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.

33.4. 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 appellate 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.

33.5. If a matter is directed for retrial, the evidence and record of the previous trial is completely wiped out.

33.6. 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."

9. On perusal of the case, it appears that the petitioners/accused persons had voluntarily caused hurt to the complainant Bhuwani Ram and other injured persons Vishnu, Mukesh and Rukmani Bai but the trial

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Court had framed charge u/S 323 r/w S.34 of IPC, only in respect of injured Bhuwani Ram but had not framed charge in respect of injured Vishnu, Mukesh and Rukmani Bai. Further, it also appears that without framing of charge the learned trial Court had convicted the petitioners u/S 323 r/w 34 of IPC only in respect of injured Bhuwani Ram but contrary sentenced the petitioners u/S 323 r/w 34 (four counts) of IPC, which is not permissible as per law. Therefore, the Appellate Court has rightly set aside the conviction and sentence passed by the trial Court and remanded back for framing of required charge and to conclude the case as per law. Therefore, the Appellate Court has not committed any illegality, irregularity or impropriety in passing the impugned judgment. Case law cited by the learned counsel for the petitioners having different facts and circumstances is not applicable in this case. Accordingly this revision petition is dismissed.

(PRAKASH CHANDRA GUPTA) JUDGE

Shruti SHRU Digitally signed by SHRUTI JHA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, 2.5.4.20=46283ba6a215e3d40573a7f0ced0 632c8b8e41b29405387437111f0f1c897b8

TI JHA 4, postalCode=452001, st=Madhya Pradesh, serialNumber=975D0201B09C38473541A4 907EE0732D1EA079B8EE35C9E2D19845AF 26B0FBF4, cn=SHRUTI JHA Date: 2023.11.03 11:03:11 +05'30'