Full Judgment
R.L. Khurana, J.
1. By virtue of the present appeal preferred under Section. 378(3) of the Code of Criminal Procedure, the State has assailed the acquittal of the three respondents as recorded vide judgment dated 12-1-1998.
2. In case FIR No. 157 of 1996, Police Station, Rampur, respondents Nos. 1 and 2, namely, Chet Ram and Prem Singh were charged for the offences under Sections 447, 506 and 451 of the Indian Penal Code. While respondent No. 3 Sanjokta Devi was charged for the offences under Sections 447 and 506 of the Indian Penal Code. The respondents pleaded not guilty to the charge and claimed trial.
3. The learned Magistrate upon consideration of the material placed on record acquitted all the three respondents of the offence under Section 447 of the Indian Penal Code. No findings were recorded with regard to the offences under Sections 451 and 506 of Indian Penal Code.
4. Assailing the impugned order of acquittal, it has been contended by the learned Addl. Advocate General that the impugned order of acquittal is bad having been passed in contravention of the provisions contained in Section 354 of the Code of Criminal Procedure. In as much as, the learned Magistrate has failed to record any findings as to conviction or acquittal of the respondents in respect of the offences under Sections 506 and 451 of the Indian Penal Code and as such, the impugned order is liable to be set aside and the case be remanded to the learned Court below by exercising the powers of this Court under Section 386 of the Code of Criminal Procedure.
5. The learned counsel for the respondents on the other hand, has contended that the omission to record a finding on the charge for the offences under Sections 451 and 506 of the Indian Penal Code by the learned Magistrate would amount to a implied acquittal of the respondents in respect of such offences.
6. Section 354, Cr. P.C. which deals with language and contents of judgment vide Clause (d) of Sub-section (1) provides that if the judgment is that of acquittal, it shall state the offence of which the accused is acquitted and direct that he be set at liberty and vide Clause (c), it is provided that the judgment shall state the offence and the section of the Indian Penal Code or any other law, for which the accused is convicted and the punishment to which he is sentenced.
7. Section 354 of the Code of Criminal Procedure, therefore, makes it obligatory to the trial Court to specifically state the offences for which the accused has either been convicted and sentenced or of which he has been acquitted. Failure on the part of the trial Court to record a finding of acquittal in respect of a particular offence would not amount to implied acquittal.
8. A similar question arose before a Division Bench of the Orissa High Court in Bhajan Suna v. The State, 1975 Cri LJ 1555. In the said case, the trial Court had omitted to record a specific finding of acquittal conviction on a charge for an offence under Section 148 of the Indian Penal Code and accused therein came to be convicted for the offences under Section 302/149 of the Indian Penal Code. A contention was raised that the failure of the trial Court to record a specific finding on record for the offence under Section 148 of the Indian Penal Code would amount to an implied acquittal. Repelling the contention, it was held by the Division Bench while dealing with the provisions contained in Section 367 of the Code of Criminal Procedure (1898) corresponding to Section 354 of the Code of Criminal Procedure (1973) as under :-
'12. Where a charge has been framed against an accused person in a warrant case, the proceedings before the Court can end either in acquittal or in conviction and in no other way. To lay down a bald proposition that omission to record a finding on a charge amounts to implied acquittal is to mis-state the correct law and is to put a premium on dereliction of duty on the part of the Magistrate. According to Section 367(2), Criminal Procedure Code, every judgment shall specify the offence (if any) of which and the section of the Penal Code or other law under which the accused is convicted and the punishment to which he is sentenced. Under Clause (4), if it be a judgment of acquittal it shall state the offence of which the accused is acquitted and direct that he be set at liberty. In view of these mandatory provisions of law, omission to record a finding is a flagrant breach of fundamental principle of judicial procedure as to what a judgment of acquittal or conviction should be. To imply an acquittal from a mere omission to record a decision would frustrate the ends of justice. In our opinion, a judgment delivered by a Court without due regard to the provisions of Section 367, Criminal Procedure Code is in imperfect judgment and the appellate Court in exercise of its powers under Section 423, Criminal Procedure Code can direct the trying Magistrate to write a proper judgment in accordance with law. In re K.V. Ayyaswamy, AIR 1965 Andh Pra 105 : 1965 (1) Cri LJ 281, a Division Bench held that where facts do not exist from which an implied acquittal can be assumed, the Court would not be justified in treating the omission to record a finding on a charge as being tantamount to an acquittal. We are in respectful agreement with the view expressed in that case.'
9. In view of the above ratio with which I am in full agreement, the impugned order of the learned Magistrate cannot be sustained and the only course open to this Court is to set aside the same and to remand it to the learned trial Court under Section 386 of the Code of Criminal Procedure, to decide the case afresh by writing a proper judgment in accordance with law after giving opportunity to the parties of being heard.
10. As a result, the present appeal is allowed. The impugned order dated 12-1-1998 is set aside and the case is remanded to the learned trial Court for decision afresh in the light of the observations made hereinabove.
11. Parties through their counsel are directed to appear before the learned trial Court on 12-8-2002. The record complete in all respects be returned forthwith so as to reach the Court below well before the date fixed. The bail furnished by the respondents in pursuance of the orders of this Court dated 20-10-1998 shall continue to remain in force during the course of the pendency of the proceedings before the learned trial Court.