2007 ALL MR (Cri) 3396
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

S.R. DONGAONKAR, J.

Shri. Jagdish S/O. Madhukar Sahare & Anr.Vs.State Of Maharashtra

Criminal Revision Application No.34 of 2005

29th June, 2007

Petitioner Counsel: Mr. R. H. RAWLANI
Respondent Counsel: Mr. D. B. PATEL

Criminal P.C. (1973), S.401 r/w. S.397 - Revision - Powers of revisional Court - Court in a revision application can consider the matter as if it is an appeal - Also, if necessary, revisional Court can remand the matter to appellate Court for consideration and decision after hearing the parties afresh.

Although Section 401 of Criminal Procedure Code provides that in such revision application this court can consider the matter as if it is an appeal, it is necessary to remand this matter to the appellate court for consideration and decision; after hearing the parties afresh. No doubt court can consider this matter as an appeal and as such also consider the sustainability of the findings recorded by the trial Judge, it may not be appropriate as in that case revision applicants may miss one opportunity of appeal. Therefore, without entering into the matter on merits and without considering the rival contentions of the parties, held, it is expedient to allow this revision petition, and to remand the matter to the lower appellate court for hearing the parties again and to decide the same on merits. Hence this revision is partly allowed. [Para 10]

JUDGMENT

JUDGMENT :- This revision under section 401 read with section 397 of the Code of Criminal Procedure Code is directed against the judgment and order passed by Joint District Judge & Additional Sessions Judge, Nagpur in Criminal Appeal No.1/2003 dated 2.2.2005 by which she dismissed the appeal against judgment of conviction and sentence of the revision applicants in Sessions Trial No.108/1999 decided by 7th Ad-hoc Assistant Sessions Judge, Nagpur on 28.11.2002 by which the revision applicants were found guilty of the offence punishable under section 325 read with section 34 of the Indian Penal Code and were sentenced to suffer R.I. for 2 years and to pay fine of Rs.3,000/- each, in default to suffer R.I. for six months.

2. Brief facts leading to the filing of the revision application, are thus. Revision applicants were prosecuted for the offences punishable under sections 307, 353, 332, 333 read with section 34 of the Indian Penal Code in the court of the 7th Ad-hoc Assistant Sessions Judge, Nagpur. The allegations levelled against them were that they in furtherance of their common intention, caused injuries to P.W.1 Sanjay Jasutkar a Police Constable on 30.6.1991 at about 11.00 p.m., when he along with P.W.4 P.C. Bandu Thakre had gone to raid the house of one Madhukar Sahare, who was residing at Nagardhan, on the information that he was going to bring liquor in his house in illegal manner. It is not necessary to go into the details of the prosecution case, considering the nature of the final order that need to be passed in the present revision application. Suffice it say that it is alleged that both these revision applicants, when saw P.W.1 P.C. Sanjay Jasutkar coming to the house, they inflicted blows by the blade of Bhala [spear] and sticks. It is alleged that the revision applicant - Jagdish had caused injuries on his stomach, chest and right hand arm by the blade of Bhala; whereas revision applicant no.2 had caused injuries by stick. Thereafter, somehow he ran away from the spot and later on he went to his house. He narrated the incident to Police Constable Thakre and one Dhurve. He was taken to the hospital, thereafter report was lodged to the police station and after due investigation the revision applicants were charge-sheeted.

3. During the trial the charge was framed against the revision applicants for the offences under sections 307, 353, 332, 333 read with section 34 of the Indian Penal Code. The prosecution then led evidence of six witnesses. After hearing the parties, the learned trial Judge came to the conclusion that the prosecution has established the guilt of the revision applicants for the offence under section 325 read with section 34 of the Indian penal Code and as such, he convicted each of the applicants for R.I. for two years and to pay fine of Rs.3,000/-, in default to suffer further R.I. for six months vide her judgment and order dated 28.11.2002.

4. Revision applicants challenged this judgment before Sessions Judge, Nagpur in Criminal Appeal No.1/2003. Learned Additional Sessions Judge, Nagpur by her judgment, dated 2.2.2005 dismissed the said appeal. This revision application has been filed by the revision applicants to challenge the legality and correctness of the same.

5. Learned counsel for the revision applicants Shri. Ravlani submitted that the charge against revision petitioner was for the offence punishable under section 307 read with section 34 of the Indian Penal Code. No charge was framed for other offences against them. According to him, the main prosecution witnesses namely P.W.1 Sanjay and P.W.4 Bandu who are Police Constables and were accompanying each other at the relevant time for raid, have given divergent versions regarding the incident. In fact P.W.4 Bandu did not try to save P.W.1 Sanjay and his version is not reliable. He has also submitted that at the relevant time it was dark and therefore, identification of the revision applicants/accused in the court is unreliable, inasmuch as there was no identification parade held, during the investigation. According to him, the prosecution witnesses were not knowing these accused persons and therefore, sans, identification parade, their identification in the court was not trustworthy. According to him, as these police witnesses were not on duties, nor were shown so in the police station registers, offence under sections 307, 353, 332, 333 read with section 34 of the Indian Penal Code is not warranted. He contended to that the judgment of the trial Judge and the appellate court, are not sustainable at law. Apart from this he has mainly contended that the matter in the appellate court was heard on 11.11.2004. The vakalatnama of the learned counsel for the revision applicant Shri. Ravlani was filed on 17.9.2004. In fact their earlier counsel Shri. Ghodeswar expired on 15.9.2004, prior to hearing of the matter. Still, judgment of the learned appellate Judge refers to Shri. Ghodeswar Advocate as a counsel appearing for the appellants which was totally incorrect and depicting her non application of mind to the case. It is seriously contended by him that the judgment was delivered by the learned appellate Judge on 2.2.2005, i.e. after considerable time of more than 3 months, after hearing the arguments. According to him, no notes of arguments were taken by the learned appellate Judge and the judgment was delivered. According to him, his contentions are not at all considered by the learned appellate Judge and therefore, judgment impugned in this revision is totally incorrect, and unjust at law and therefore, it is liable to be set aside.

6. As against this, learned A.P.P. has supported the order passed by the appellate court for the reasons mentioned in the judgment.

7. I do not propose to go into the merits of the contentions raised by the learned counsel, suffice it to say that on perusal of the proceedings of the appeal in which the impugned judgment is passed by learned appellate judge, it does appear that the matter was heard on 11.11.2004. Judgment was delivered on 2.2.2005, after about 10 to 15 adjournments. Notes of arguments do not seem to be on record. Learned counsel for the appellant who is recorded to have appeared in the appeal is mentioned as N. S. Ghodeswar who was reported to have died on 15.9.2004 vide pursis Ex.24.

8. Ex.24, states Shri. Ghodeswar died about a month ago. This pursis is dated 15.9.2004 and on that day the petitioners wanted to engage new counsel.

9. With this background, when there appears to be no notes of arguments or contentions raised by the learned counsel for the revision petitioner in the lower appellate court, it is difficult to say that all of his contentions on merits were duly considered by the learned appellate judge. Judgment impugned therefore, seems incorrect and improper. In these circumstances, revision applicants need to be given an opportunity to raise all the contentions before the appellate court, against their conviction and sentence in the interest of justice.

10. It is necessary to mention here that although section 401 of Criminal Procedure Code provides that in such revision application this court can consider the matter as if; it is an appeal, in my opinion, it is necessary to remand this matter to the appellate court for consideration and decision; after hearing the parties afresh. No doubt this court can consider this matter as an appeal and as such also consider the sustainability of the findings recorded by the learned trial Judge, it may not be appropriate as in that case revision applicants may miss one opportunity of appeal. Therefore, without entering into the matter on merits and without considering the rival contentions of the parties, I feel it expedient to allow this revision petition, and to remand the matter to the lower appellate court for hearing the parties again and to decide the same on merits.

11. Hence this revision is partly allowed. Judgment and order of conviction and sentence passed by the Additional Sessions Judge, Nagpur in Criminal Appeal No.1/2003 dated 2.2.2005 is hereby quashed and set aside and the matter is remanded back to the learned Additional Sessions Judge, Nagpur for hearing the parties afresh and decide the matter on merits within a period of three months from the date of receipt of R & P. R & P be sent to lower appellate court immediately.

Revision partly allowed.