- (1.) IN this revision u/s 397/401 of Criminal Procedure Code (for short 'Cr.P.C.') revisionists have prayed to set aside the impugned direction issued to learned Magistrate concerned to pass fresh judgment in pursuance of order passed by the learned Appellate Court vide its judgment and order dated 23-3-2012.
(2.) THE brief facts of this case for deciding the revision are that Irfan Ahmad, Mohammad Israil, Smt. Anwari, Mohd. Islam, Km. Ruqaiya and Habib were accused persons in Criminal Case No. 2924 of 2009, arising out of case Crime No. C-10 of 2003. After trial of the aforesaid case these persons were convicted u/s 498A of Indian Penal Code (for short 'IPC') with simple imprisonment of 2 years and a fine of Rs. 1,000.00 each. These persons were also convicted under section 3 of Dowry Prohibition Act and sentenced with simple imprisonment of one year each. In case of default of payment of fine, these accused persons were directed to undergo a further imprisonment of one month. The judgment passed by Ist Addl. Chief Judicial Magistrate, Gonda convicting and sentencing the revisionists was challenged in appeal before the Court of Sessions. Out of six only five persons challenged the conviction and sentence awarded against them by preferring the appeal having Criminal Appeal No. 24 of 2011. The name of appellants are Irfan Ahmad, Mohammad Islam, Smt. Anwari, Km. Ruqaiya and Habib. It appears from perusal of the order of Appellate Court that Habib died during the pendency of appeal and the case stand abated against him. However, it appears that Mohd. Israil did not prefer any appeal. The Appellate Court considered the submissions of both the side and allowed the appeal after setting aside the judgement dated 11.3.2011. The matter was remanded back to decide the case in the light of the direction issued by the Appellate Court after giving opportunity of hearing to accused persons and prosecution. From perusal of the impugned order of the Appellate Court it appears that accused Israil did not face trial but the learned Magistrate passed the order of conviction against Israil also. It was further observed by the Appellate Court that the charge for the offence u/s 323 I.P.C.was also framed against the accused persons but no finding had been recorded regarding acquittal or conviction of the accused persons u/s 323 I.P.C. It was further observed in respect of the accused Israil that during trial he absconded and his file was separated, consequently charges were not framed against Israil. Therefore, the learned Trial Court has committed an error convicting Israil without trial and his conviction cannot sustain. Consequently, without going into the merit of the case or making any comment on merit the Appellate Court straight way sent back the matter after setting aside the judgment of the Trial Court and directed to pass an appropriate order after giving opportunity of hearing to both the sides.
(3.) LEARNED counsel for the revisionist after relying upon the judgment of Hon'ble Apex Court reported in AIR 1963 (SC) 1531 (Ukha Kolhe Vs. State of Maharashtra) submitted that order of retrial to fill-up the lacuna by means of taking additional evidence would not be proper and on this strength it has been submitted that the order of remand is not sustainable.;