IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR SINGLE BENCH : HON’BLE MR. JUSTICE N.K.GUPTA, J.Criminal Revision No.1526/2011 Awdhesh Pratap Singh and another VERSUS The State of Madhya Pradesh --------------------------------------------------------------------------- Shri Sankalp Kochar, counsel for the applicant. Shri Ajay Tamrakar, Panel Lawyer for the State/respondent. --------------------------------------------------------------------------- ORDER
(Passed on the 16th day of April, 2013) The applicants have preferred the present revision against the judgment dated 9.8.2011 passed by the learned First Additional Sessions Judge, Chhatarpur in criminal appeal No.135/2010, whereby the matter was remanded to the trial Court for retrial of the case, whereas the applicants were convicted for the offence punishable under section 304- A of IPC and section 5 (3) (a) of Indian Explosive Act, 1984, vide judgment dated 12.7.2010 passed by the learned JMFC, Chhatarpur (Shri Rajesh Devaliya) in criminal case No.261/2009.
2. The prosecution's case, in short, is that, on 1.3.1997, the applicant Ramesh Vishwakarma was driving a vehicle bearing registration not DL04-CB-9844 towards Sanjaynagar, Laundi. He was transporting two bags of : 2 : Criminal Revision No.1526 of 2011 Gelatine and 400 ED in the vehicle which was loaded from the house of his owner Lal Singh Parihar. Near Naya Mohalla, Chhatarpur bent, the vehicle was jumped due to speed breaker and therefore, an explosion was caused. The applicant Ramesh and his companions were burnt due to explosion and ultimately, Ram Prasad Patel and Pappu had expired. After due investigation, a charge-sheet for offence punishable under section 304-A, 286 and 336 of IPC and sections 5, 2 and 3 of the Explosive Act was filed before the trial Court.
3. After considering the prosecution’s evidence, the learned trial Court has convicted the applicants for the aforesaid offences, whereas the appellate Court remanded the case with the pretext that on the date of the incident, no provision of section 5 (3) (a) of the Explosive Act was in force and therefore, the applicant could not be convicted for that offence.
4. I have heard the learned counsel for the parties.
5. The learned counsel for the applicant has submitted that the appeal was filed by the applicant and therefore, no patching was permitted to help the prosecution. The trial was initiated in the year 1998 and the applicants have faced the trial for 11 years. Thereafter in their appeal, the matter was remanded. In support of his contention, the : 3 : Criminal Revision No.1526 of 2011 learned counsel for the applicants has placed his reliance upon the judgment passed by Hon’ble the Apex Court in case of “Ukha Kolhe Vs. State of Maharashtra”. [AIR 196.SC 1531]. and “Akalu Ahir and others Vs. Ramdeo Ram”., [AIR 197.SC 2145]..
6. After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it is apparent that the learned Additional Sessions Judge did not consider that the appeal was filed by the applicants and therefore, when no appeal was filed by the State, the matter could not be remanded in such a manner. If the learned Additional Sessions Judge has taken a suo moto revision against the judgment passed by the learned JMFC concerned then, a notice of that revision should have been given to the applicants and thereafter an order could be passed to remand the case. The applicants have faced the trial and appeal for more than 13 years and therefore, it was highly objectionable that the matter was remanded against the applicants, so that they may be convicted for an appropriate offence of the Explosive Act. The learned Additional Sessions Judge does not have the power under section 482 of the Cr.P.C. and therefore, he could not pass such an order in the appeal filed by the applicants. In case of Ukla Kolhe (supra) Hon’ble the Apex : 4 : Criminal Revision No.1526 of 2011 Court has directed that the retrial shall not be ordered merely to enable the prosecution to adduce additional evidence for filling up a lacuna. If it is essential to do so then, an appropriate method be adopted. In case of Akalu Ahir (supra) Hon’ble the Apex Court has directed that normally the retrial should not be ordered, unless there is something infirmity rendering the entire trial defective. In the present case, the appellate Court could decide the conviction under section 304-A of IPC and effective sentence could be passed. If the learned JMFC was not provided with the updated laws manual and therefore, a charge was framed for the offence, which did not exist at the time of the incident then, such type of lacuna cannot be permitted to be filled up in such a later stage, especially in the criminal appeal filed by the applicants.
7. On the basis of the aforesaid discussion, it is apparent that the learned Additional Sessions Judge has passed a judgment beyond his jurisdiction. He did not follow the proper procedure before passing such an order and therefore, looking to the illegality done by the learned Additional Sessions Judge, it is a fit case in which the present revision filed by the applicants can be accepted. Consequently, the revision filed by the applicants is hereby allowed. The impugned order dated 9.8.2011 is hereby set : 5 : Criminal Revision No.1526 of 2011 aside. The learned First Additional Sessions Judge, Chhatarpur is directed to decide the criminal appeal No.135/2010 on merits for the remaining offences.
8. A copy of the order be sent to the trial Court as well as to the appellate Court alongwith their records for information and compliance. (N.K.GUPTA) JUDGE 16 4/2013 Pushpendra