IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 52/2005 Constable Mahendra Singh & Ors. …….Petitioners Versus State of Uttaranchal & Ors. …….Respondents July 28, 2010 Hon’ble Dharam Veer, J. Heard Mr. Rajeev Sharma, Advocate for the petitioners and Mr. Prabhakar Joshi, Brief Holder for the State. The present petition under Section 482 of Code of Criminal Procedure, 1973 (for short, CrPC) has been filed for setting aside the judgment and order dated 31.12.2004 in respect of present petitioners which was passed by the Sessions Judge, Champawat in Criminal Appeal No. 11/2004, Ramesh Giri v. State of Uttaranchal, whereby learned Sessions Judge has quashed the order of acquittal dated 30.10.2004 in respect of present petitioners passed by Judicial Magistrate, 1st Class, Champawat and directed retrial of the case. Facts, in brief, are that Ramesh Giri and six other co- accused including the present petitioners were chargesheeted in Case Crime No. 1/2002 under Section 381/454/414/411/120- B IPC. After the trial, learned Judicial Magistrate, 1st Class, Champawat vide his judgment and order dated 30.10.2004 convicted the co-accused Ramesh Giri under Section 411 IPC and sentenced him to three years’ RI along with fine of Rs. 5,000/-, in default to undergo six months additional simple imprisonment. Co-accused Ramesh Giri and Manju Devi were also convicted under Section 201 IPC and each of them were sentenced with a fine of Rs. 1,000/-, in default to undergo six months additional simple imprisonment. However, the petitioners and the other co-accused were acquitted for the charge levelled against them under Section 380 read with Section 120-B IPC, Section 454 read with Section 120-B IPC and Section 414 IPC. Co-accused Ramesh Giri preferred an appeal before the Sessions Judge against the aforesaid judgment and order dated 30.10.2004. However, State has not filed any appeal against the said order of acquittal of the petitioners. Learned Sessions Judge, Champawat vide his judgment and order dated 31.12.2004 allowed the appeal of co-accused Ramesh Giri and set aside the entire judgment and order dated 30.10.2004 passed by the Judicial Magistrate, Ist Class, Champawat and remanded the case and directed that the co-accused Ramesh Giri and all other six co-accused including the petitioners be tried again. Learned Counsel for the petitioners argued that State has not filed any appeal against the order of acquittal in respect of the petitioners passed by the Judicial Magistrate and, therefore, Sessions Judge cannot direct for retrial of the case unless the order of acquittal is set aside by the competent court on the appeal of the State. From the perusal of the impugned judgment and order dated 31.12.2004, it reveals that learned Sessions Judge without giving any notice or opportunity of hearing to the petitioners who were acquitted by the Judicial Magistrate directed for retrial of the case afresh on the appeal of the co- accused Ramesh Giri who was convicted and no appeal was filed by the State against the said order of acquittal of the petitioners. In these circumstances, the order of retrial passed by the Sessions Judge is against the principle of natural justice. It is settled law that without hearing the accused who have been acquitted by the trial court, no adverse order can be passed against them. Moreover, State has not filed any appeal against the order of acquittal of the petitioners. Hence, order of retrial passed by the Sessions Judge, Champawat in respect of the petitioners is not correct and justified. For the reasons recorded above, judgment and order dated 31.12.2004 passed by the Sessions Judge, Champawat in Criminal Appeal No. 11/2004, Ramesh Giri v. State of Uttaranchal is set aside only in respect of the petitioners. However, order of retrial against the co-accused Ramesh Giri 2 who was earlier convicted by the trial court shall remain intact and trial would proceed against him only. Petition is allowed accordingly. Interim order dated 27.1.2005 stands vacated. (Dharam Veer, J.) 28.7.2010 PRABODH 3