JETHA NAND Vs. STATE OF HARYANA

JUDGEMENT

(1.) CAN a Court of criminal appellate jurisdiction, whilst ending an appeal from conviction under one offence in an Order of acquittal, simultaneously order a retrial of the accused for another offence, is the intriguing question which falls for determination in this petition for revision. And it arises out of the content of Section 386 of the Criminal P. C. , the relevant part of which is extracted below: 386. Powers of the Appellate Court.- After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-

(2.) A police report under Section 173, Criminal P. C. , was presented to the Judicial Magistrate 1st Class, Palwal of the area charging the accused Jetha Nand and another of offences under Sections 420, 467, 461 and 471 of the Penal Code. The allegations contained therein were founded on facts which may broadly be stated herein. One Ram Chand Motwani stood surety for payment of a loan due to the accused Jetha Nand and three others to the tune of Rupees 35,000/ -. One of the terms of the surety bond was that in the event of non-payment of the said loan, the surety Ram Chand Motwani would sell, and to which he had agreed, some plots situated in N. I. T. Faridabad at a total sale consideration of Rupees 40. 000/-, Ram Chand Motwani died on 24-71972 and his estate was succeeded by his widow Smt. Krishna Devi. On 6-2-1973, a sale deed was executed and registered whereby the afore-referred to plots at N. I. T. Faridabad were sold in favour of Jetha Nand and three others for a sum of Rs. 40,000/ -. Jetha Nand accused signed it on behalf of the vendees. Saudagar Singh coaccused signed it as a witness and so did Shri C. L. Taneja, Advocate, Ballabgarh. These two witnesses of the sale deed identified the vendor Smt, Krishna Devi, who thumb-marked the same as the executant, as also having done so before the Sub Registrar. Sometime later, Smt. Krishna Devi complained to the police authorities that somebody had played a fraud upon her and in fact she never got executed any sale deed. Complaining that she had been deprived of the ownership of the plots in question, she wanted the investigatory process to be set into motion. Accordingly, the police registered the case and embarked upon investigation. The police did not discover who was the lady who appeared before the Sub-Registrar though the accused were insistent that it was Smt. Krishna Devi and none other. Finally, the prosecution presented its report against Jetha Nand accused and his co-accused Saudagar Singh for the commission of the above-referred to offences. Shri L. N. Mittal, the Sub-Divisional Judicial Magistrate, Ballabgarh, vide his reasoned order dated 12-6-1975 discharged the accused of offences under Sections 467, 468 and 471, Penal Code, and ordered charge under Section 420, Penal Code, to be framed individually against both the accused. After trial, his successor Shri B. L. Singhal, Judicial Magistrate 1st Class, Ballabgarh, acquitted Saudagar Singh accused but convicted Jetha Nand accused-petitioner under Section 419, Penal Code, and sentenced him to two years' rigorous imprisonment and to pay a fine of Rs, 500/ -. Aggrieved against the said order, Jetha Nand petitioner filed an appeal against his conviction which was allowed by Shri Krishan Kant Aggarwal, Additional Sessions Judge, Gurgaon, on 15-11-1980. He took the view following a decision in Madhavan Ayyappan v. State AIR 1953 Trav-Co 34 : 1953 Cri LJ 275, which he found to be a case similar on facts. Nevertheless, the learned Judge observed that it was not a case in which the accused should be allowed to take benefit of the technicalities of the framing of charge against him under a wrong section. Observing that the accused had actively participated in getting the sale deed, Ext. P. A. , executed in his favour as also attesting the said sale deed and appearing before the Sub-Registrar appending his signatures thereto along with the fictitious Krishna Devi, the offence under Section 467, Penal Code, was made out against the accused. Thus whilst accepting the appeal and setting aside the conviction of the appellant under Section 419, Penal Code, he ordered that the appellant be tried on a fresh charge under Section 467, Penal Code, to be framed by the learned Magistrate in the light of the observations made by him in his judgment. He further observed that the evidence already on the file shall be treated as the evidence in the case subject to the condition that the accused would be at liberty to re-quest for recalling the prosecution witnesses already examined for further cross-examination. Consequential orders which he thought fit were also passed which need not be detailed here. It is to challenge this order that the present revision petition has been filed by Jetha Nand petitioner,

(3.) BEFORE coming to grips with the legal question, one fact which has pertinently emerged must be noticed. Nowhere in the order under revision did the learned Additional Sessions Judge refer to the order of discharge dated 12-6-1975 passed by the trial Magistrate. As said before, this order was a reasoned one and had to be reasoned in view of Section 239 of the Criminal P. C. which now makes imperative on the Magistrate to record reasons for discharging the accused. The Law Commission in its 41st report, while giving objects and reasons for the change to be introduced in Section 251-A (2) of the old Code, had observed that since the order of the Magistrate was subject to revision, it was obviously necessary that he should record his reasons in the order. Accordingly, the change which was recommended by the Law Commission found way by explicit words in Section 239 of Criminal P. C. No revision was filed against the order of discharge and the prosecution remained con-tent with proceedings against the accused under Section 420, Penal Code, for nearly five years when the accused was convicted for that offence on 25-3-1980.