Tripura High Court
The Chief Manager vs The State Of Tripura on 15 May, 2024
HIGH COURT OF TRIPURA
AGARTALA
Crl. Rev. P. No.20 of 2024
The Chief Manager,
LICI, Agartala, Branch No.2
TRTC Complex, P.O. Agartala-799001,
P.S.- West Agartala, District - West Tripura.
----Petitioner(s)
Versus
1. The State of Tripura
To be represented by learned Public Prosecutor.
2. Sri Gangesh Chakraborty
son of late Gurukinkar Chakraborty,
resident of Pragati road, P.S. West Agartala,
District - West Tripura
3. Sri Gourish Chakraborty
son of late Gurukinkar Chakraborty,
resident of Pragati road,
P.S. West Agartala, District - West Tripura.
----Respondent(s)
For Petitioner(s) : Mr. A. Bhattacharjee, Adv.
For Respondent(s) : Mr. S. Ghosh, Addl. P.P,
Mr. S. D. Choudhuri, Adv.
Date of hearing : 13.05.2024
Date of delivery of
Judgment & Order : 15.05.2024
Whether fit for
reporting : YES
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
This Criminal Revision Petition under Section 397 of
Cr.P.C. read with Section 401 of Cr.P.C. is filed challenging the
impugned judgment and order dated 13.03.2024 passed in Crl.
App. No.20 of 2016 by Learned Sessions Judge, West Tripura,
Agartala.
2. Heard Mr. A. Bhattacharjee, Learned Counsel for the
petitioner. Also heard Mr. S. Ghosh, Learned Addl. P.P.
representing the State and Mr. S. D. Choudhuri, Learned
Counsel representing the respondent nos.2 and 3.
3. The petitioner in this petition has submitted that an
appeal was preferred by the Senior Manager, LIC, Agartala on
04.03.2016 which was numbered as Crl. App. No.20 of 2016
under Section 372 of Cr.P.C. read with Section 374 of Cr.P.C
challenging the judgment dated 23.12.2015 delivered by
Learned CJM, West Tripura, Agartala in connection with G.R.
No.230 of 2002 acquitting the respondent nos.2 and 3 from the
charge framed against them under Section 409/471/468/411 of
IPC.
4. According to the petitioner, during the pendency of
appeal on 20.07.2021 in course of hearing of argument,
Learned Counsel for the appellant i.e. the petitioner herein
submitted that some additional evidence was necessary to
record in the case in order to arrive at a proper decision in the
appeal and on the same date, Learned Counsel for the
petitioner filed one application under Section 391(1) of Cr.P.C
for recording additional evidence in dealing with the appeal and
on 01.10.2021, Learned Sessions Judge, West Tripura, Agartala
after hearing both the parties rejected the same petition and
being aggrieved with the said order dated 01.10.2021 passed
by Learned Sessions Judge, the petitioner preferred a Criminal
petition along with a interlocutory application before the High
Court against the said order dated 01.10.2021, which were
numbered as Crl. Petn. No.47 of 2021 and I.A. No.1 of 2021.
After that, by a judgment and order dated 24.02.2022, this
High Court allowed the Crl. Petn. No.47 of 2021 filed by the
petitioner setting aside the order dated 01.10.2021 passed by
Learned Sessions Judge, West Tripura, Agartala subject to
recovery of cost of Rs.2,00,000/- from the concerned officers of
LICI who were posted in the concerned Branch during the
period with effect from 10.05.1999 to 14.06.2021.
5. Further, according to petitioner, on 01.11.2022,
Learned Counsel for the petitioner informed the Learned
Sessions Judge, West Tripura, Agartala, regarding the
realization of Rs.2,00,000/- from 10 officials of LICI in
compliance with the order of the High Court of Tripura and
accordingly, Learned Sessions Judge gave an opportunity to the
petitioner to proceed further with the application under Section
391(1) of Cr.P.C. and ultimately on 05.02.2024, Learned P.P.
produced all documents by a Firisti before the Learned Sessions
Judge and on 02.03.2024, Learned Counsel for the petitioner
filed the name of one witness namely Shri I. S. Rao, Asstt.
Government Examiner of question documents, Kolkata, West
Bengal.
6. Thereafter, by Judgment and Order dated 13.03.2024,
Learned Sessions Judge, West Tripura, disposed of the Crl. App.
No.20 of 2016 with the following observations:
"So, considering the facts and circumstances of the
case I find it prudent to send back the original case
record of G.R. 230 of 2002 with all the documents
including the documents produced by learned Public
Prosecutor before this Court on 5.2.2024 to the
Court of learned Chief Judicial Magistrate, West
Tripura, Agartala with a direction to the learned
Trial Court to record the additional evidence by
summoning Shri I.S. Rao, Asstt. Government
Examiner of question documents, Kolkata, West
Bengal and thereafter, to examine the accused
respondents once again U/S. 313 Cr.P.C followed by
fresh argument and judgment and the entire
procedure shall be concluded by the learned Trial
Court within 30th June, 2024.
At this stage Mr. Sandip Dutta Choudhuri, learned
vehemently opposed the practice adopted by the
prosecution side so far in this case. It is submitted
by the learned Counsel that his clients had already
consumed more than 22 years before the Courts of
law in connection with this case and they can no
way be compensated for the loss of such 22
valuable years from their lives. Accordingly, learned
counsel verbally submitted that specific direction
may be issued from this Court to the learned Trial
Court as well as to the learned Public Prosecutor not
to consume further valuable times of the respondent
Nos.1 and 2 on the ground of appointment of special
Public Prosecutor etc. as prescribed by Sections 301
and 302 of Cr.P.C.
Heard and considered.
Learned Trial Court as well as the learned Public
Prosecutor are requested to keep the oral
submission made by Mr. Sandip Dutta Choudhuri,
learned Counsel for the respondent Nos.1 and 2 in
mind while fixing the dates for further proceeding of
the trial.
Office is directed to supply a copy of this order each,
to the learned Counsel of all the parties to this
Appeal, free of cost, at once.
Office is also directed to send back the original case
record of G.R. 230 of 2002 with all the documents
including the documents produced by learned Public
Prosecutor before this Court on 5.2.2024 to the
Court of learned Chief Judicial Magistrate, West
Tripura, Agartala, on or before 1st April, 2024.
Parties are directed to appear before the learned
Trial Court on 01-04-2024.
This Criminal Appeal is accordingly disposed of on
contest."
Challenging that order, the present petitioner has
preferred this revision petition before this High Court.
7. In course of hearing of argument, Learned Counsel for
the petitioner, Mr. A. Bhattacharjee fairly submitted that the
Learned Court below by the said order has finally disposed of
Crl. App. No.20 of 2016 but the Learned Court below without
adhering to the provision of Section 391(2) of Cr.P.C passed the
order which was not warranted by law and thus, a grave
injustice has been caused to the petitioner. So, Learned Counsel
for the petitioner submitted before the Court to allow the
revision petition and to set aside the order dated 13.03.2024
passed by Learned Sessions Judge, West Tripura Agartala.
8. On the other hand, Learned Counsel Mr. S. D.
Choudhuri representing the respondent nos.2 and 3 submitted
that the matter is very old pending and the respondent nos.2
and 3 are being unnecessarily harassed by the petitioner-LICI
without any basis and by that impugned order, no injustice was
caused to the petitioner rather it was the respondent nos.2 and
3 who ought to have been prejudiced by the said order and
submitted before the Court that in Section 386 of Cr.P.C, the
power of the Appellate Court is given and the Learned Court
below has rightly disposed of the appeal by the said order dated
13.03.2024 and there was no illegality or impropriety in the
order passed by Learned Sessions Judge and urged for
upholding the order of Learned Sessions Judge, West Tripura,
Agartala dismissing the present revision petition.
9. Learned Addl. P.P., Mr. S. Ghosh appearing on behalf of
the State-respondent at this stage submitted that he is fully
agree with the submission made by Learned Counsel
representing the petitioner and submitted that the order dated
13.03.2024 passed by Learned Sessions Judge, West Tripura,
Agartala suffers from infirmities for which the interference of
Court is required and urged before the Court to consider the
revision petition filed by the present petitioner. Considered.
10. I have heard detailed submission of Learned Counsel of
the rival parties and gone through the order passed by the
Learned Court below and also the relevant papers connected
therewith.
11. There is no dispute on record that the matter is long
pending one and the present petitioner preferred an appeal
before the Court of Learned Sessions Judge, West Tripura,
Agartala on 04.03.2016 challenging the order of acquittal
delivered by Learned CJM, West Tripura, Agartala by judgment
dated 23.12.2015 in connection with G.R. No.230 of 2002
acquitting the respondent nos.2 and 3 from the charges framed
against them under Section 409/471/468/411 of IPC and in
course of hearing of appeal before the Learned Appellate Court,
the present petitioner preferred an application under Section
391(1) of Cr.P.C and after hearing both the sides, Learned
Sessions Judge by order dated 13.03.2024 finally disposed of
the appeal with certain direction and being aggrieved by that
order, the petitioner has preferred this petition before this
Court.
12. Now, for the sake of convenience I would like to refer
hereinbelow the relevant provision of Section 386 of Cr.P.C
which provides as under:
"386. Powers of the 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) 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;
(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) in an appeal for enhancement of
sentence-
i) reverse the finding and sentence
and acquit or discharge the
accused or order him to be re-tried
by a Court competent to try the
offence, 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, so as to enhance
or reduce the same;
(d) in an appeal from any other, alter or
reverse such order;
(e) make any amendment or any
consequential or incidental order that may be
just or proper."
13. Further, I would also like to refer herein below the
relevant provision of Section 391 of Cr.P.C., which also provides
as under:
"391. Appellate Court may take further evidence or
direct it to be taken.-
(1) In dealing with any appeal under this Chapter,
the Appellate Court, if it thinks additional evidence
to be necessary, shall record its reasons and may
either take such evidence itself, or direct it to be
taken by a Magistrate, or when the Appellate Court
is a High Court, by a Court of Session or a
Magistrate.
(2) When the additional evidence is taken by the
Court of Session or the Magistrate, it or he shall
certify such evidence to the Appellate Court, and
such Court shall thereupon proceed to dispose of
the appeal.
(3) The accused or his pleader shall have the right
to be present when the additional evidence is taken.
(4) The taking of evidence under this section shall
be subject to the provisions of Chapter XXIII, as if it
were an inquiry."
From the aforesaid provisions of law, it appears that the
power of the Appellate Court is mentioned in Section 386 of
Cr.P.C. and the power of the Appellate Court for taking further
evidence is mentioned in Section 391 of Cr.P.C. Now, if we go
through the aforesaid provision of Section 391 of Cr.P.C.
wherein it is clearly mentioned that the Appellate Court in the
appeal, if it thinks that the additional evidence is necessary,
shall record its reasons and may either take such evidence itself
or direct it to be taken by a Magistrate, or when the Appellate
Court is a High Court, by a Court of Sessions or a Magistrate
and further it is also mentioned that when the additional
evidence is taken by the Court of Sessions or the Magistrate, it
or he shall certify such evidence to the Appellate Court, and
such Court shall thereupon proceed to dispose of the appeal.
Further, on harmonious reading of Section 386 and Section 391
of Cr.P.C, it appears that Section 391 of Cr.P.C would be
applied only if the appeal is pending for disposal, not otherwise.
Furthermore, if the power under Section 391 of Cr.P.C is applied
by an Appellate Court, in that case, till disposal of the procedure
prescribed in Section 391 of Cr.P.C, there will be no scope on
the part of the concerned Appellate Court to dispose of the
appeal.
14. Here, in this case, Learned Sessions Judge, by the
impugned order dated 13.03.2024, directed the Learned Trial
Court i.e. Learned CJM, West Tripura to record the additional
evidence of one Shri I. S. Rao, Asstt. Government Examiner of
question documents, Kolkata, West Bengal and thereupon to
examine the accused respondent once again under Section 313
of Cr.P.C followed by fresh argument and judgment with a
further direction to complete the process by 30.06.2024.
15. From the aforesaid order, it appears that there was no
illegality in respect of directing Learned CJM, West Tripura,
Agartala to record additional evidence, as ordered by the
Learned Sessions Court but on perusal of the aforesaid
provision of Section 391(2) of Cr.P.C, it appears that the
Learned Sessions Judge committed error in delivering the
judgment/order to direct Learned CJM to examine the accused
once again under Section 313 of Cr.P.C and to pass a fresh
judgment after hearing of arguments which in my considered
view, Learned Sessions Judge has committed error in passing
that portion of order. Because the legislature has clearly
expressed that the Learned Sessions Judge being an Appellate
Court itself may take additional evidence or the Learned
Sessions Judge may direct the Learned Lower Court to take
additional evidence in case of need and if the additional
evidence is recorded by the Learned Court below i.e. the
Magistrate, here, the Learned CJM then he shall be bound to
certify such evidence to the Appellate Court and such Court
shall thereupon proceed to dispose of the appeal as per law. But
the Learned Sessions Judge misconstruing the aforesaid
provision of law has passed an order directed Learned CJM,
West Tripura to record evidence and thereafter to examine the
accused again under Section 313 of Cr.P.C and to deliver a
fresh judgment after hearing of arguments which in my
considered view Learned Sessions Judge has failed to
appreciate the legal provision properly and thus passed the
order which in my considered view Learned Session Judge,
West Tripura, Agartala had no such authority to pass such
direction and to dispose of the appeal finally.
16. In course of hearing of argument, Learned Counsel for
the petitioner referred one judgment of Delhi High Court dated
01.03.2012 in Charanjeet Gaba v. Arjun Lal Ahuja & anr.
bearing case no. Crl. M.C. 3485 of 2010 and Crl. MA 17131 of
2010(stay) reported in 2012 SCC OnLine Del 1259, wherein
the Hon'ble Delhi High Court made the following observation at
para 5:
"5. This section contemplates that the Appellate
Court may either record further evidence itself or
direct it to be taken by the trial court. The powers of
the Appellate Court in permitting recording of
additional evidence though unbridled, has to be
within the ambit and scope of provisions of this
Section. For permitting additional evidence at the
stage of hearing of appeal, the Appellate Court
needed to satisfy that the additional evidence that
was sought to be adduced at that stage was
necessary. For recording such satisfaction, it was
obligatory to record reasons. The expression, "if it
thinks additional evidence to be necessary" is of
wide amplitude. The Appellate Court is empowered
to exercise the powers to weed out the infirmities in
the course of furthering substantial justice."
17. So, after hearing the rival parties and also after going
through the aforesaid citation referred by Learned Counsel for
the revision petitioner, it appears that the interference of the
Court is required, modifying the order of the Learned Sessions
Judge.
18. In the result, the revision petition filed by the petitioner
is hereby partly allowed on contest. The order dated
13.03.2024 passed by Learned Sessions Judge, West Tripura,
Agartala in Crl. App. No.20 of 2016 is accordingly modified.
Learned CJM, West Tripura, Agartala is directed to record the
evidence of witness Shri I. S. Rao, Asstt. Government Examiner
of question documents, Kolkata, West Bengal immediately as
per direction given by Learned Sessions Judge, West Tripura,
Agartala and to certify such evidence to the Appellate Court and
its connected documents including relevant case records so as
to enable the Learned Sessions Judge, West Tripura, Agartala to
dispose of the appeal preferred by the petitioner against the
order of acquittal passed by Learned CJM, West Tripura,
Agartala dated 23.12.2015 in connection with GR No.230 of
2002, on merit. Learned CJM, West Tripura is further asked to
complete the process of recording additional evidence of the
aforesaid witness Shri I. S. Rao, Asstt. Government Examiner of
question documents, Kolkata, West Bengal latest by 30.06.2024
and to certify such evidence to Learned Sessions Judge by
10.07.2024 positively and thereafter, Learned Sessions Judge
shall dispose of the appeal on merit after hearing both the
parties latest by 31.07.2024. Both the parties or their
respective Counsel shall appear before the Court of Learned
CJM, West Tripura, Agartala on 28.05.2024 for seeking further
instructions in this matter.
A copy of this order be communicated to Learned
Sessions Judge, West Tripura, Agartala for information and
compliance. Also, a copy of this order be communicated to
Learned CJM, West Tripura, Agartala for information and
compliance. A copy of this order also be supplied to Learned
Counsel for the petitioner and Learned Counsel for the
respondent nos.2 and 3 immediately.
Send down the LCRs, if any along with copy of this
order/Judgment.
Pending applications, if any, also stands disposed of.
JUDGE
SABYASACHI Digitally
SABYASACHI
signed by
BHATTACHA BHATTACHARJEE
Date: 2024.05.16
RJEE 19:19:21 -07'00'
Deepshikha
