MULCHANDBHAI BECHARBHAI PARMAR Vs. STATE OF GUJART

JUDGEMENT

(1.) INVOKING the provisions of Article 227 of the Constitution and Section 482 of the Code of Criminal Procedure, 1973 (for short "the Code"), the petitioner has called into question the judgment and order dated 5. 3. 1994 of learned Additional Sessions Judge, Palanpur in Criminal Appeal No. 3 of 1992 wherein, while allowing the appeal of the petitioner and setting aside the order of conviction and sentence, retrial not only of the offence punishable under section 498a of the Indian Penal Code, 1860 (for short "the IPC"), for which the petitioner was already convicted, but for the offence punishable under section 306 of the IPC was ordered with the direction to charge the petitioner for those offences and commit the case for trial by the Sessions Court.

(2.) THE criminal case arose out of death of the wife of the petitioner after more than ten years of married life and birth of two children and, even as the petitioner was charged for and convicted of the offence under section 498-A of the IPC, the appellate court came to the conclusion that, prima facie, the deceased appeared to have committed suicide abetted by the petitioner and, therefore, the petitioner was required to be charged and tried for the offence punishable under both the sections.

(3.) IT was submitted by learned senior counsel Mr. B. B. Naik, appearing for the petitioner, that a serious error of law was apparent on the face of the impugned judgment insofar as in the appeal filed by the petitioner against his conviction and sentence, the aforesaid direction for retrial with additional charge of the offence punishable under section 306 of the IPC was clearly unwarranted and without jurisdiction. He submitted that the impugned judgment, as far as it set aside the conviction and sentence for the offence punishable under section 498-A of the IPC, was not challenged by the petitioner, but the further direction to try the petitioner again for the offence punishable under section 498-A and for the offence punishable under section 306 was challenged. He fairly conceded that conviction for the offence under section 498-A was not set aside on merits or on re-appreciation of evidence but was set-aside only with a view to ordering retrial of the same offence along with the offence punishable under section 306 of the IPC. He submitted that, in an appeal from conviction, the appellate court had, under the provisions of section 386 clause (b) of the Code, power to order retrial by the court of competent jurisdiction but did not have jurisdiction or power to try the convict for another more serious offence. In support of that argument, he relied upon judgment of the Supreme Court in State of Andhra Pradesh v. Thadi Narayana [air 1962 SC 240], wherein the following observations were made: