GOPAKUMAR Vs. STATE OF KERALA

JUDGEMENT

(1.) Can the Appellate Court in an appeal filed by an accused against the conviction for one offence, after setting aside the conviction and direct retrial of the accused for another offence for which there was no charge This is the question to be settled in this revision.

(2.) Facts are not complicated. Revision petitioner was tried and convicted for the offence under S.186 of Indian Penal Code on the allegation that in execution of the order of arrest of the revision petitioner in E.P.802 of 1998 in O.S.1252 of 1997 of Munsiff Court, Thrissur, PW 1, Thressia, the Ameen of District Court, who was authorised to execute the warrant, arrested revision petitioner from his house. While he was being taken to Munsiff Court, Thrissur in an autorickshaw and the autorickshaw was stopped at the traffic signal, revision petitioner jumped out of the lawful custody of the Ameen and thus obstructed the Ameen from discharging her duty as a public servant and thereby committed the offence under S.186 of Indian Penal Code. Revision petitioner pleaded not guilty. He was found guilty, convicted and sentenced to simple imprisonment for three months and a fine of Rs.500/- by Chief Judicial Magistrate, Thrissur. The conviction was challenged before Additional Sessions Court, Thrissur in Crl. Appeal 56 of 2007.,Learned Additional Sessions Judge on the evidence found that the offence committed is not under S.186 of Indian Penal Code, and instead the offence could only be under S.225B of Indian Penal Code, as it is case of escape from custody of the Ameen. Finding that there was no charge for the offence and the charge framed was not proper, conviction was set aside and remanded the case to the Court of Chief Judicial Magistrate for retrial after framing proper charge. The order of remand is challenged in the revision petition filed under S.397 and 401 of Code of Criminal Procedure.

(3.) Learned counsel appearing for revision petitioner and the learned Public Prosecutor were heard.