NAURANG SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) A complaint under Section 409, Indian Penal Code ( for short, the Code) was filed by the Deputy Commissioner, Karnal against the present petitioner Naurang Singh and on that basis, formal F.I.R. No. 275 dated 6.10.1975 was registered against him at Police Station Sadar Karnal. After recording the evidence of the parties the trial Magistrate convicted Naurang Singh under Section 409, Indian Penal Code and sentenced him to 6 months rigorous imprisonment and a fine of Rs. 500/ -. On appeal, the learned Additional Sessions Judge, Karnal, remanded the case to the trial Court with the direction that it should record a finding with respect to the amount of Rs. 7357 10 P. with which the accused had been charged. It is against this order of remand that the petitioner Naurang Singh has come up in revision. The facts giving rise to this revision are very few and simple. The petitioner Naurang Singh was a Secretary of the Gram Panchayat at Fatehpur in Nilokheri block, district Karnal. It is said that he was entrusted with a sum of Rs. 7357.10P. in his capacity as Gram Secretary and that he misappropriated the said amount. He was accordingly convicted and sentenced as indicated above.

(2.) THE powers of the Appellate Court are described under Section 386 of the Cr.P.C. Clause (b) of Section 386 lays down as under: - "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. "(a) .... (b) in an appeal from a conviction (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such appellate court or committed for trial, or (ii) alter the finding maintaining the sentence, or (iii) With or without altering the finding. alter the nature or the extent, or the nature and extent, of the sentence but not so as to enhance the same." From above, it is amply clear that the Appellate Court while deciding an appeal from conviction is not empowered to remand the case for fresh decision after recording a new finding which was not the subject matter of the order under appeal. The learned counsel appearing for the complainant -respondent fairly conceded that the order of remand without jurisdiction is not sustainable. The learned counsel contended that instead of remanding the case, the Appellate Court should have itself gone into the whole evidence of the prosecution and should have reversed the finding and either acquitted or discharged the petitioner . The learned Appellate Court had observed while remanding the case, that the amount of Rs. 5000/ - is not stated to be part of the amount of Rs. 7357.10P. with the embezzlement of which the accused has been charged so the conviction against the accused cannot be sustained and it is necessary that the trial court should be directed to give a finding with respect to the embezzlement of Rs. 7357.10P, which has not been recorded and accordingly directed the trial Court to give a finding with respect to the said amount, which was not open to it to have remanded the case to the trial Court for giving such finding. Under Section 386(b) of the Cr.P.C., the Appellate Court has the power to reverse the finding and sentence and either acquit or discharge the accused or order him to be retried by a Court of competent jurisdiction. The procedure followed by the learned Additional Sessions Judge is not correct and hence the order passed by him is set aside. He shall restore the appeal of Naurang Singh to his file and dispose of his appeal according to law. The parties through counsel are directed to appear before the Appellate Court on 26.8.1985.