SANTOO RAM Vs. STATE AND ANOTHER

JUDGEMENT

(1.) This is a revision by one Santoo Ram, who stands convicted for an offence punishable Under Sec. 13 of the UP Roadside Land Control Act. The sentence awarded is fine in a sum of Rs. 150/ -. After hearing learned Counsel for the Applicant and the learned Counsel appearing for the State, in appears manifest that this revision must be allowed.

(2.) Following a complaint, lodged against the Applicant, in the court of the SDM, Phulpur, Allahabad, in 1964, the Applicant was tried on the same charge and was convicted by an order of the Magistrate, dated 22 -3 -1965. On appeal by the Applicant to the court of session, the order of the Magistrate was set aside and a retrial was ordered. In consequence thereof, a fresh trial took place and the Applicant was again convicted and sentenced as above and the said conviction the sentence of the Applicant having been upheld by the learned Sessions Judge, the Applicant has filed this revision. The only contention raised by the learned Counsel for the Applicant is that, in arriving at their conclusions, both the courts below have relied largely on the prosecution evidence led at the previous trial, which is not permissible under the law and the conviction of the Applicant must, therefore, be set aside. The learned Counsel for the State conceded to what is manifest on a perusal of the judgments of the courts r below, that, but for the material, forming part of the evidence led at the previous trial, which has been largely relied upon by both the courts below, it would be difficult to sustain the conviction of the Applicant; and the question that has arisen for consideration is whether the evidence led at the previous trial was relevant. Sec. 423, Code of Criminal Procedure, which provides for an order by the appellate court, directing a person to be retried, contains nothing to suggest that, at the re -trial, the court may take into consideration the evidence led by either party at the previous trial. In case, an appellate court is of the opinion that some additional evidence was necessary, recourse must be taken to the provisions in Sec. 428 of the Code of Criminal Procedure, which leaves it to the option of the appellate court either to take such evidence itself, or to direct such evidence to be taken by a Magistrate, who is required to certify that evidence to the appellate court, whereafter the appellate court may proceed to dispose of the appeal. Sec. 428 does not contemplate retrial, but only the taking of additional evidence. The order of the court of appeal, dated 13 -7 -1965, whereby the conviction of the Applicant in consequence of the first trial, was set aside, was an order within the purview of the provisions contained in Sec. 423 of the Code of Criminal Procedure; and it was, therefore, not open to the courts below to take into consideration the evidence led by either party, at the previous trial.

(3.) Reference may be made to decided cases, which support the above view. In Bhaso Singh v/s. The Emperor, 19 Cri LJ 77, a Division Bench of the Calcutta High Court held that when an appellate court sets aside an order of conviction and orders retrial, it has no power to direct that the evidence, already on record, be treated as evidence in the case. The same view was taken by Pollock, A.J.C., in Potram v/s. The Emperor, AIR 1935 Nag. 125 (2). In the case of Edward Ezra v/s. The State, AIR 1953 Col. 263, a Division Bench of the Calcutta High Court held that it was not possible for an appellate court to direct retrial on the evidence already on record, on the ground that such a direction would amount virtually to a direction in the nature of a further enquiry, instead of retrial, or in the nature of a partial retrial, which the Code of Criminal Procedure did not contemplate. In the case of Lallo v/s. State Cr. Rev. No. 1640 of 1953 Dt - 24 -8 -1955, a learned Judge of this Court took the view that Sec. 428 did not contemplate an appeal being allowed, the conviction and the sentence set aside and thereafter, a direction given to the Magistrate to record fresh evidence Under Sec. 428 and that retrial necessarily imposes a condition that the trial should be from its inception and not a partial trial. It was held that, when the, Sessions Judge, after allowing the appeal and setting aside the conviction, remanded the case, with a direction to record a fresh decision on the original evidence and on the additional evidence to be taken and the Magistrate held a fresh trial and convicted the accused, acting on the original evidence and on the additional evidence, the fresh trial was vitiated and the conviction of the accused could not be upheld (AIR 1955 NUC 5815).