- (1.) The present crl. revision has been filed against the some part of the judgment and order of remand the case for retrial before the Court below on 18.10.2013 passed by Upper District and Sessions Judge, Aligarh in Crl. Appeal No. 89 of 2013 (Ash Mohammad and others v. State of U.P.) arising out of Case Crime No. 02 of 2010 under Sections 498-A and 323 I.P.C., police station Harduaganj, District Aligarh. Heard Sri Shrawan Kumar Mishra, Advocate holding brief of Sri Gauri Shankar Mishra, learned counsel for the revisionist and Sri Ashutosh Kumar Tripathi, learned A.G.A. for the State. Learned counsel for the revisionists submits that the revisionists were convicted for the offence under Section 498-A and 323 I.P.C. by Judicial Magistrate, Court No. 2, Aligarh vide judgment and order dated 5.4.2013 and co-accused Km. Kanchan was acquitted by the trial Court by the same judgment and the revisionists were also acquitted under Section 506 I.P.C. He further submits that against the said order convicting the revisionists under Section 498-A and 323 I.P.C., the revisionists preferred an appeal before the lower appellate Court which was allowed by the lower appellate Court and their conviction and sentence was set aside and further the matter was remanded for retrial of the revisionists. He submits that against the judgment and order dated 5.4.2013 passed by the trial Court, no appeal was filed by the State or by the complainant against the acquittal of the revisionists under Section 506 I.P.C. or acquittal of co-accused Km. Anjana, hence to the extent of that part of the order of the lower appellate Court directing retrial of the revisionists is bad in the eyes of law, hence the said part of the impugned judgment be set aside by this Court. In support of his submission, he has placed reliance on the judgment of the Apex Court in the case of State of West Bengal v. Laisal Haque and another, 1989 AIR(SC) 129 and has drawn the attention of the Court towards para-10 of the said judgment which is quoted hereinbelow: Lastly, we are constrained to observe that the High Court has not examined the merits of the case at all. If it had done so, it could not have come to the conclusion that there was any material defect or omission in the framing of the charges or giving the particulars thereof or any failure of justice was occasioned thereby. It failed to appreciate that in an appeal by the respondents under Section 374 of the Code, the order of acquittal passed by the learned Additional Sessions Judge as against the 26 others accused could not be interfered with. The High Court also failed to appreciate that there cannot be a piecemeal trial. The retrial directed by the High Court must necessarily revise the prosecution and must result in a trial de novo against the 42 accused. The 26 other accused acquitted by the learned Additional Sessions Judge were not impleaded as parties to the appeals before the High Court. In the absence of an appeal preferred by the State Government against their acquittal, the High Court could not under Section 386(b) on an appeal by the respondents against their conviction after the acquittal nor can there be a splitting up of the trial.
(2.) On the other hand, learned A.G.A. has opposed the said prayer and has submitted that as per Section 386(b)(1) Cr.P.C., the lower appellate Court had rightly remanded the case for retrial as the lower appellate Court found that no proper opportunity was given either to the prosecution or to the defence to plead the cases.
(3.) Considered the submissions advanced by learned counsel for the parties and perused the impugned order. From a perusal of the impugned order, it is apparent that the lower appellate Court found that the trial Court had not provided proper opportunity to the prosecution for proving its case nor proper opportunity was given to the accused persons for contradicting the statement of the prosecution witnesses recorded under Section 161 Cr.P.C., hence the lower appellate Court remanded the matter for retrial. The impugned judgment passed by the trial Court is in consonance with the provisions of Section 386-b(1) Cr.P.C., hence I am of the opinion that the impugned judgment and order passed by the lower appellate Court to the extent of remanding the case for retrial does not suffer from any illegality, infirmity of jurisdictional error which may call for any interference by this Court. The prayer for quashing the same is refused. However, it is clarified that the trial Court is directed to conduct retrial of the revisionist for the offence under Section 498-A and 323 I.P.C. and co-accused Km. Anjana, who has been acquitted by the trial Court for the offences in question, would not be retried nor the revisionists would be retried for the offence under Section 506 I.P.C. as no State appeal has been filed against the order of the trial Court before the lower appellate Court acquitting the co-accused Anjana for the offences in question nor acquittal of the revisionists under 506 I.P.C. in view of the judgment of the Apex Court in the case of State of West Bengal v. Laisal Haque and another . With the aforesaid observations, the revision stands disposed of.;