SHARMA, J. - (1.) THE respondents six in number, were the accused on the file of learned Sessions Judge Alwar bearing Sessions Case No. 55/2005 under Section 396 IPC and 3/25 Arms Act. Learned Sessions Judge vide judgment dated May 5, 2006 acquitted respondents of all the charges. Being aggrieved by the finding of learned Sessions Judge, the State of Rajasthan submitted petition seeking leave to appeal under Section 378 (3) of the Code of Criminal Procedure, 1973 (for short `crpc' ). This court on May 26, 2006 granted leave and summoned the respondents through bailable warrants. THEreafter on August 14, 2006, the State of Rajasthan made an application under Section 390 read with 482 Cr. P. C. for recalling the order dated May 26, 2006 and to commit the respondents to prison after summoning them through non-bailable warrants. Similar prayer has been sought in the revision petition filed by the widow of deceased.
(2.) IT is the prosecution case that Ramavatar Goyal (now owner of Petrol Pump situated at Alwar-Delhi road in village Divakari, while standing out of cabin around 8 PM on March 12, 2005 seven culprits came rushing from the road side and took Ramavtar Goyal on gun point and opened fire as a result of which Ramavtar Goyal sustained injury on his face and fell down. Thereafter three culprits armed with Kattas (country made guns) entered inside the cabin, one culprit caught hold of Banwari Lal while another caught hold of Chhote Lal, Accountant and gave them beating and decamped with sale amount of Rs. 1,61,800/- along with other amount kept in blue colour bag. Ramavtar Goyal expired on the spot and culprits ran away. A case under Section 396 IPC and 3/25 Arms Act was registered and investigation commenced. The respondents were arrested and remained in custody throughout the trial. However, on completion of trial all of them stood acquitted. A look at the material on record demonstrates that in the test identification parades held on March 20 and 22 of 2005 Banwari Lal (PW. 18) correctly identified the accused respondents. Banwari Lal identified the respondents in the trial Court also. Foot prints of the respondents were taken on March 23, 2005 before the Additional District Magistrate Alwar and as per the FSL report the foot moulds were found to be of the accused respondents. The investigating agency also seized the hair from the hands of the deceased and as per the DNA report the seized hair tallied with the hair of accused respondents Mubin and Amin. As per the testimony of Investigation Officer various criminal cases were pending against the accused respondents. It is canvassed on behalf of the State and the petitioner in revision that the acquittal of the respondents simply on presumption without properly considering the evidence available on record is exfacie illegal and perverse and liable to be set aside. As against this, learned counsel for the respondents contended that the presumption as to innocency of the accused respondents stands fortified on their acquittal by the trial court. It is next urged that refusal of bail is never for the purpose of punishment. In view of the long period usually taken for disposal of appeals, it would cause hardship if the accused who stood acquitted in trial, is refused bail. It is further contended that the evidence of identification was rightly disbelieved since the respondents, before test identification parade, were shown to the witnesses. Evidence in regard to hair and foot prints was also rightly disbelieved. According to learned counsel the case of the prosecution rests on circumstantial evidence, that falls short of the required standard of proof. It is also urged that once the accused were summoned through the bailable warrants, there is no reason to commit the respondents to prison. Maintainability of revision petition and the review application of the State, has also been questioned. In order to resolve the controversy poised for our consideration it will be useful to have a look at section 390 Cr. P. C. which provides thus:- " When an appeal is presented under Section 378, the High Court may issue a warrant directing that the accused be arrested and brought before it or any subordinate court, and the court before which he is brought may commit him to prison pending the disposal of the appeal or admit him to bail. "
(3.) SECTION 390 corresponds to SECTION 427 of the repealed Code. In the present section the word and figure "section 378" are substituted for the words and figures "section 411-A sub section (2) of SECTION 417" in the old section. Except for this change, no other changes are made. Under this section the High Court has the power to re-arrest the accused pending the disposal of an appeal against his acquittal. The Constitution Bench of Hon'ble Supreme Court in State of U. P. vs. Poosu (AIR 1976 SC 1750) while considering Section 427 of the repealed Code, propounded as under:- (Para 10) "this is the rationale of Section 427. As soon as the High Court on perusing a petition of appeal against an order of acquittal, considers that there is sufficient ground for interfering and issuing process to the respondents, his status as an accused person and the proceedings against him, revive. The question of judging his guilt or innocence in respect of the charge against him, once more becomes subjudice. " Since on granting leave to appeal against the impugned judgment of acquittal, the proceedings against accused- respondents revived and charges against them once more becomes sub-judice, it is to be seen as to whether sufficient grounds exist for issuance warrants of arrest against them and to commit them to prison. ;