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Bombay High Court
Shivgonda Mallappa Huchgond vs Ramgonda B. Santi And Ors. on 7 October, 1998
Equivalent citations: 1999 CriLJ 1222
Author: T C Das
Bench: T C Das


ORDER

T.K. Chandrashekhara Das, J.

1. This writ petition is directed against the order in revision passed by the Second Additional Sessions Judge, Sangli in Criminal Revision Application No. 131 of 1980. The aforesaid Revision Application arises from the Judgment and Order passed by the learned Judicial Magistrate, First Class, Jath in Summary Criminal Case No. 46 of 1988 passed on 15th June, 1988 whereby the respondent Nos. 1 to 11 were convicted under Section 500 of the I.P.C.

2. The allegation against them was that they have made defamatory statement against the petitioner before the Charity Commissioner. After trial, the learned Magistrate has found that the statement given by respondent Nos. I to 11 before the Charity Commissioner brings down and damage reputation of the petitioner and, therefore, committed offence under Section 499 of I.P.C. Against that Judgment of the Magistrate, the revision was filed by the respondent Nos. 1 to11 in which the impugned order was passed by the Revisional Court. The Revisional Court without going into the question raised in the Revision Application and without going into the merits of the case, merely on a technical ground, set aside the conviction and ordered for retrial by the Magistrate.

3. I heard the counsel Mr. Pradhan for the Petitioners and Mrs. Kantharia, A.P.P. for the State. No representation on behalf of the respondent Nos. 1 to 11. The defects pointed out by the Revisional Court in the procedure adopted by the Magistrate was that while recording the statement of the accused under Section 313, common questions have been asked and answers were elicited by the Magistrate. This, according to Revisional Court, is not in accordance with the mandate laid down under Section 313. The manner in which the questions to be framed and asked and the answers to be elicited is dependent upon the facts of each case. Here the allegations against Respondent Nos. 1 to 11 are common. They jointly prepared the statement and signed and given to the Charity Commissioner which contained defamatory material. Therefore, by asking general questions and eliciting answers from the accused will not affect the right of the accused, nor such procedure could be said to be irregular. On a reading of Section 313 of Cr. P.C. asking common questions to the accused in general, if it is relevant to the evidence disclosed in the trial, is not barred. Therefore, conclusion arrived at by the Revisional Court that merely asking general questions and eliciting answers under Section 313 is not regular procedure, cannot be accepted in the facts and circumstances of this case. Therefore, the observation of the Sessions Court is not correct.

4. The learned counsel Mr. Pradhan has further pointed out that retrial of the Criminal Case could be ordered only in very exceptional circumstances and that too in the cautious manner. For a mere irregularity which may not affect the trial fatally or does not create any prejudice to the accused the Revisional Court or Appellate Court is not justified in remanding the matter back for fresh trial in a criminal case. He brought to my notice, the decision of the Supreme Court in which the Supreme Court laid down the principles or circumstances under which the appellate Court or Revisional Court could direct the retrial of the criminal case. In Ukha Kolhe v. State of Maharashtra reported in AIR 1963 SC 1531 : 1963 (2) Cri LJ 418 majority of the Bench quotes thus para 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 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 interest 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 proceedings 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 the other reasons. Harries, C.J.. in Ramanlal Rathi v. State observed:

If at the end of the criminal prosecution, the evidence leaves the Court in doubt as to the guilt of the accused, the latter is entitled to a verdict of not guilty. A retrial may be ordered when the original trial has not been satisfactory for particular reasons, for example, if evidence has been wrongly rejected which should have been admitted, or admitted when it should have been rejected, or the Court had refused to hear certain witness who should have been heard. But retrial cannot be ordered on the ground that the prosecution did not produce the proper evidence and did not know how to prove their case.

In the present case, undoubtedly the trial before the Magistrate, suffered from irregularities which we have already set out. The evidence, such as was led, was deficient in important respects, but that could not be a sufficient ground for directing a retrial. If the Sessions Judge, thought that in the interest of justice and for a just and proper decision of the case it was necessary that additional evidence should be brought on record, he should have instead of directing a retrial and reopening the entire proceeding, restored to the procedure prescribed by Section 428(1) of the Code of Criminal Procedure. There is no doubt that if the ends of justice require, the appellate Court, should exercise its power under the said Section.

5. As it can be seen from the above case the circumstances that should exist for warranting a retrial, must be such that where the trial was undertaken by the Court having no jurisdiction, or trial was vitiated by serious illegality or irregularity on account of the misconception of nature of proceedings and on that account had there been no retrial accused was prevented from leading the evidence material to charge, in such serious circumstances, only, the retrial of the case can be ordered by the appellate Court. The Supreme Court has observed in the above judgments that retrial wipes out the earlier proceedings which will affect the accused because infirmities if any disclosed in the earlier trial, cannot be made use by the accused which will cause great miscarriage of justice. As I observed earlier, the defect pointed out in this case, is not at all fatal and in the nature of the offence committed by the accused a common question put to the accused will not prejudice respondent Nos 1 to 11 on any counts. In these circumstances, retrial ordered by the Court below has to be set aside and the revision deserves to be disposed of by the Revisional Court on merit.

6. In the result, writ petition is allowed.

7. Rule made absolute in term of Prayer Clause (b) and 2nd Addl. Sessions Judge, Sangji is directed to dispose of the Revision Application No. 131 of 1988 on merits according to law, within three months from the date of receipt of this order.


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