M. SHANMUGASUNDARAM Vs. THE STATE AND ORS.

JUDGEMENT

(1.) MATERIAL on record discloses that the revision petitioner has been charged under Section 307 IPC., in S.C. No. 320 of 2010, on the file of the 3rd Additional Assistant Sessions Judge, Salem. On trial, vide judgment, dated 27.01.2012, the Court found him guilty, under Section 324 IPC., and sentenced him to pay a fine of Rs. 5,000/ - and in default, simple imprisonment for one month. Being aggrieved by the same, the defacto complainant has filed an appeal in C.A. No. 76 of 2013, on the file of the learned Additional and District Sessions Judge, Salem. After examining the materials on record, the learned Additional and District Sessions Judge, Salem, set aside the judgment made in S.C. No. 320 of 2010, dated 27.01.2012 and remitted the matter back to the learned 3rd Additional Assistant Sessions Judge, for retrial and directed re -examination of P.Ws. 8 and 9 and to receive the additional documents filed by the defacto complainant. After providing a reasonable opportunity to submit the documents, the learned 3rd Additional Assistant Sessions Judge, Salem, has been directed to dispose of S.C. No. 320 of 2010, within a period of three months, from the date of receipt of the records. Against the judgment made in the appeal filed by the defacto complainant, the present revision has been filed.

(2.) INVITING the attention of this Court to Section 372 Cr.P.C., (Amendment), 2008, Mr. C.K.M. Appaji, learned counsel for the revision petitioner/accused submitted that the victim is entitled to file an appeal, only against the judgment of acquittal or enhancement of sentence or for compensation, but no appeal is filed by the defacto complainant for retrial under Section 372 Cr.P.C. He further submitted that when the appellate Court itself is empowered to take additional evidence, under Section 379 Cr.P.C., there is absolutely no necessity to remit the matter to the 3rd Additional Assistant Sessions Judge, Salem, re -examining P.Ws. 8 and 9 and also to receive additional documents filed by the defacto complainant. In this context, he relied on a decision reported in Rajeshwar Prasad v. State of West Bengal reported in : AIR 1965 SC 1887.

(3.) INVITING the attention of this Court to the date of incident, i.e., 17.09.2009, date on which, a proviso is incorporated to Section 372 Cr.P.C., with effect from 31st December, 2009 and placing reliance on the decisions of the Apex Court in National Commission of Women v. State of Delhi reported in : 2011 Crl. L.J. 962 and D. Sudhakar v. Panapu Sreenivasulu reported in : 2013 Crl. L.J. 2764, learned counsel for the revision petitioner submitted that C.A. No. 76 of 2013, filed on the file of the learned Additional and District Sessions Judge, Salem, itself, is not maintainable and therefore, the judgment recorded in C.A. No. 76 of 2013, deserves to be set aside, on the grounds of maintainability.