*HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU +CRIMINAL REVISION CASE No.1377 of 2010 %31.08.2010 #Yenuganti Tata Rao and 3 others …… Petitioners And: $The State, represented by PP., High Court of AP., Hyderabad …..Respondent !Counsel for the Petitioners : Sri N. Ravi Prasad Counsel for the respondent : Public Prosecutor < Gist: > Head Note: ?Cases referred: Nil HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE No.1377 of 2010 DATE: 31.08.2010 Between: Yenuganti Tata Rao and 3 others …… Petitioners And: The State, represented by PP., High Court of AP., Hyderabad …..Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE No.1377 of 2010 ORDER : 1. This revision petition is filed against so-called remand Judgment dated 28.06.2010 passed by the Principal Sessions Judge, Prakasam, Ongole setting aside order of acquittal passed by the Judicial Magistrate of the First Class, Kanigiri in C.C.No.57 of 2003 directing the trial court for fresh disposal according to law, after framing separate charges against A- 4 and A-5 instead of combined charge and permitting both the parties to lead further evidence if any. 2. In the trial court, A-1 to A-3 faced charges under Sections 406, 420, 471 and 120-B IPC and A-4 and A-5 faced charge under Section 468 IPC. It is alleged that A-1 to A-3 borrowed loan from Prakasam District Cooperative Central Bank Limited, Pambru to establish bricks units on the strength of fabricated pattadar pass book and fabricated title deed books Exs.P-6, P-12, P-13, P-29, P-30 and P-42 inspite of A-1 to A-3 not having any rights in the lands shown in those books and that A-4 as person in- charge of the bank gave ‘no dues certificates’ to A-1 to A-3 inspite of they being defaulters in Kodigumpala branch and that A-5 as Village Administrative Officer helped A-1 to A-3 in creating false Adangals, Pattadar Pass books and title deed books. After full trial, in which P.Ws.1 to 8 were examined and Exs.P-1 to P-43 were marked for the prosecution, the trial court found A-1 to A-5 not guilty of the charges and acquitted them. 3. In the appeal, the lower appellate court commented the trial court as follows: “Somehow, while analyzing the material before it, the lower court failed to focus its attention regarding the right of A.1, A.2 and A.3 in the lands mentioned in the Pattadar Passbooks and Title deed books submitted by them to the bank for availing loan amounts and consequently, the lower court failed to record any finding on this aspect.” The lower appellate court further observed: “There is also no sound reasoning for the acquittal of A.4 and A.5 and charge No.3 should not have been framed as a single charge against A.4 and A.5 and specific charges should have been framed separately against both A.4 and A.5.” For the above reasons, the lower appellate court remanded the case to the trial court for fresh disposal according to law in the light of the above observations and after giving opportunity to both the parties to lead further evidence, if any. 4. This Court is of the opinion that the lower appellate court, though quoted Section 386(a) Cr.P.C, failed to understand the scope thereof. Section 386(a) Cr.P.C reads as follows: “386. Powers of the Appellate Court.-------------------------------------------- ----------------------------------------------------------------------------------- (a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;” As per the above provision, three options are open for the appellate court in an appeal from an order of acquittal, in case the appellate court intended to reverse the order of acquittal; and they are a) direct that further enquiry be made, or b) that the accused be re-tried, or c) to find the accused guilty and pass sentence on him according to law. In so far as the 4th option of committing the case for trial is concerned, such contingency arises only in case the lower appellate court finds that the offence in respect of which the accused shall be tried is a graver one which is exclusively triable by a court of Session and not by a Magistrate. This case has no such proportion of committing the same to the court of Session for trial. 5. In so far as Option-(a) i.e. directing further enquiry is concerned, it does not arise in the present case as this is a trial case and not an enquiry case before the Magistrate. Section 2(g) Cr.P.C defines ‘inquiry’ and it reads as follows: “(g) “inquiry” means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court;” Thus, inquiry does not mean trial; and it follows that further inquiry does not mean further trial. Therefore, no further inquiry can be ordered in the present case by the lower appellate court. 6. In so far as Option-(b) is concerned, it speaks of re-trial of the case. Criminal law knows only remand of an accused and not remand of a case. The concept of remand of a case is outside the scope of criminal procedure. Like in a civil appeal, the Sessions Judge has no power to remand an appeal to the trial court. Making an order for re-trial can be an exceptional cases and not exceptional circumstances. Even in a given civil appeal, remand cannot be resorted to by the appellate court unless the circumstances are within the parameters contained in order XLI Rules 23 to 26 C.P.C. 7. Coming to the case on hand, there was no need for any further trial of the case when the trial court failed to give a finding on rights of A-1 to A-3 in the lands noted in Pattadar Passbooks and Title deed books. When the prosecution had let in its entire evidence in the trial court and when the accused were also given adequate opportunity to let in their evidences and when such entire evidence is before the lower appellate court, the lower appellate court should have considered the prosecution evidence and come to a conclusion on that aspect by disposing of the criminal appeal on merits. Secondly, neither A-4 nor A-5 contended that framing of a single charge against them vitiated the trial. Similarly, the Public Prosecutor also did not plead any prejudice for the prosecution for such framing of single charge against A-4 and A-5. Even in an appeal against order of conviction, as per Section 464 Cr.P.C, unless the court of appeal opines that there was failure of justice has in fact occasioned thereby, any mis-joinder of charges will not vitiate an order of conviction. When the law gives such leverage in framing of charges to the trial court, in my opinion, the lower appellate court transgressed its powers under Section 386(a) Cr.P.C in ordering the trial court to frame separate charges against A-4 and A-5 again and in setting aside the order of acquittal, even without a finding that miscarriage of justice occasioned due to such mis-joinder of charges. Mis-joinder of charges of A-4 and A-5 cannot be a ground for remitting the matter to the trial court. 8. There being no sound reasoning given by the trial court in its judgment, is no ground for reversal of order of acquittal passed by the trial court. It is not finding of the lower appellate court that the trial court reasoning was in any way perverse. At any rate, it is for the lower appellate court to consider entire prosecution evidence and it is open for the lower appellate court to find the accused guilty or not guilty basing on its own reasoning. This Court is of the opinion that reasons given by the lower appellate court for ‘remanding’ the matter to the trial court are wholly unsustainable in law. 9. In the result, the revision petition is allowed setting aside judgment dated 28.06.2010 passed by the Principal Sessions Judge, Prakasam, Ongole and directing the lower appellate court to restore the appeal to its file and dispose of the same according to law. ______________________________________ SAMUDRALA GOVINDARAJULU, J August 31, 2010 Note: L.R. Copy to be marked. //By Order// Gk. HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE No.1377 of 2010 Date:31.08.2010 Gk.