1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL REVISION APPLICATION NO.16 OF 2010 1. Mr. Nama Madgaonkar, Major of age, residing at H. No.7/30 Sauta Wado, Calangute, Bardez, Goa. 2. Mr. Menino Fernandes Major of age, residing at H. No.5/33A Madda Waddo, Calangute, Bardez, Goa. ... Applicants versus 1. Police Inspector, Calangute Police Station, Calangute, Bardez, Goa. 2. State (Through P.P.) ... Respondents Shri Galileo Teles, Advocate for the Applicants. Ms. Winnie Coutinho, Public Prosecutor for the Respondents. CORAM : N. A. BRITTO, J. DATE : 23RD APRIL, 2010. ORAL ORDER This revision application has been filed by accused nos. 3 and 4 in C. C. No.190/S/2005/B and is directed against Oder dated 2-3-2010 of the 2 learned Additional Sessions Judge, Panaji. 2. The learned Additional Sessions Judge, Panaji in an appeal filed by the accused in the said case against their conviction passed the following order:- “The present appeal is disposed off with a direction to the trial Court to frame the charge against the appellants under Section 325 IPC also and to try the appellants on such further charge and give opportunity to the appellants to recall any witness and adduce any evidence on their behalf. The records and proceedings of the criminal case no.190/ S/2005/B are remanded to the trial Court accordingly”. 3. The applicants herein along with three more persons were prosecuted by Calangute Police Station on a charge-sheet filed under Sections 143, 147, 148, 324, 325 r/w 149 I.P.C., but charge came to be framed by the learned J.M.F.C. on 3-5-2007 under the said Sections except Section 325 I.P.C. The trial proceeded thereafter and medical evidence of Dr. Parulekar/PW6 was recorded on 8-7-2008 and that of Dr. Bandekar/PW9 was recorded on 18-4-2008. The said Dr. Bandekar in his evidence had stated that the injuries found on one of the victims, namely Balwant Bubhoa were grievous in nature. 3 4. However, the prosecution took no steps to amend or alter the charge. 5. Ultimately, the learned trial Court by Judgment dated 11-12-2008 convicted and sentenced the accused under the said Sections for which charge was framed. 6. All the accused filed an appeal before the learned Sessions Judge and the said appeal was made over to the learned Additional Sessions Judge and at the time of hearing, on behalf of the State, an application was filed on 10-2-2010 with a prayer that the case be remanded for trial to frame additional charge under Section 325 I.P.C. against the accused persons. Apparently, no explanation was given why the prosecution had not challenged the order framing the charge on 3-5-2007 or why no effort was made to apply for amending or altering the charge. The said application came to be granted. The appeal of the accused was forgotten and a direction came to be given to the trial Court to frame additional charge against the appellants/accused under Section 325 I.P.C. and to try them on the said charge. 7. Shri G. Teles, the learned Counsel appearing on behalf of the applicants/accused submits that the learned first appellate Court could not have at all dismissed the appeal filed by the accused without considering the appeal 4 on merits and was required to dispose off the appeal on one way or the other, secondly, learned Counsel submits that in terms of Clause (e) appellate power could have been used only to make consequential orders and not otherwise, and, in this context learned Counsel has placed reliance on the case of Commandant, 20th Battalion ITB Police v. Sanjay Binjola((2001) 5 SCC 317). Learned Counsel has further submitted that none of the cases which were cited before the learned first appellate Court and which have been relied by the Court were applicable to the facts of the case. Learned Counsel further submits that even if a direction to frame additional charge was given, the appeal could not have been disposed off and ought to have been kept pending as was done by the Apex Court in Kantilal Chandulal Mehta v. The State of Maharashta and another(1969(3) SCC 166). 8. On the other hand, Ms. Winnie Coutinho, the learned Public Prosecutor submits that in case the appellate Court found that justice was done to the prosecution then the appellate Court had power to order framing of additional charge. Learned Public Prosecutor further submits that the accused will have opportunity to cross-examine the witnesses as and when additional charge has been framed. 9. Section 386 of the Code(Code of Criminal Procedure, 1973) deals with the powers of the appellate Court and, inter alia, provides that after 5 perusing the record and hearing the Appellants or his pleader and the Public Prosecutor, if it considers that there is no sufficient ground for interfering, dismissed the appeal. Clause (a) deals with appeals from order of acquittal and clause (b) with which we are concerned deals with appeals from conviction and it provides that in an appeal from conviction, the Appellate Court, may i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or ii) alter the finding, maintaining the sentence, or iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same. Clause(c) deals with appeals for enhancement of sentence, Clause (d) with appeals from any other order and Clause (e) provides for making any amendment or any consequential or incidental order that may be just or proper. 10. Shri Teles, the learned Counsel on behalf of the Petitioner is right in contending that none of the Judgments which were cited by the learned first appellate Court were in fact applicable to the facts of the case. The case of Kantilal Chandulal Mehta v. The State of Maharashtra and another(supra) which appears to be closer to the controversy at hand, dealt with a charge of misappropriation under Section 406 I.P.C. and in the course of the appeal it was found that the charge had related only to the money which was misappropriated and not the goods and as such the High Court had 6 ordered an opportunity to be given to the accused to safeguard himself against any prejudice that might have been caused to him by giving him an opportunity to recall any witnesses and adduce any evidence on his behalf. The High Court had indeed directed alteration of the charge as per draft amendment and sent the case back for the new trial on the amended charge so that the accused would have full opportunity to meet his case and till then the appeal was kept pending. 11. The case of Commandant, 20th Battalion, ITB Police v. Sanjay Binjola(supra) dealt with clause (e) of Section 386, and the Apex Court observed as follows: “5. Clause (e) empowers the court to make any amendment or pass any consequential or incidental order that may be just or proper. The powers of the court under this section are subject to the other provisions of law. Orders contemplated under clause (e) for amendment of the impugned order or consequential or incidental orders are only such orders which are permissible under the Code or any other law in force. Such a power does not confer a jurisdiction upon the appellate court to pass orders which tend to interfere with the service career of the convict. Amendment of the order means amendment of the main order and does not empower the court to pass an order which affects the rights of a party not 7 before it. Incidental or consequential orders are such orders which are permissible under law and likely to follow as a result of the main order. The consequential or incidental orders contemplated under clause (e) of Section 386 of the Code are orders which follow as a matter of course being necessary complements to the main orders without which the latter would be incomplete and ineffective, such as issuance of directions for refund of fine realised from the accused ultimately acquitted or on the reversal of acquittal or any direction as to punishment, fine or compensation payable under Section 250 of the Code and the like. The High Court, therefore, committed a mistake of law by clothing the order of the appellate court to be an order passed in terms of section 386 of the Code. We are of the opinion that after passing the order of conviction and sentence, the criminal court should not have issued any direction relating to the service career of the respondent which is governed by the Act, rules made thereunder and the service rules governing his conditions of service. In this way the judgment of the High Court being not sustainable is liable to be set aside”. 12. Although the charge-sheet in this case was filed for several offences including Section 325 I.P.C, no charge was framed against the accused under the said Section. The prosecution ought to have seen the light of the day at least when Dr. Bandekar was examined in the case and when he had disclosed that the injuries suffered by the victim were grievous in nature. 8 However, the prosecution did nothing about it and allowed the trial to proceed and obtained a conviction against all the accused under Section 324 I.P.C. Admittedly, the prosecution also did not challenge the said order framing charge by filing a revision before the learned first appellate Court. 13. As can be seen from Section 386(b)(i) of the Code what the Court can do is reverse the finding and sentence or order the accused to be retried and if at all what was ordered in the case of Kantilal Chandulal Mehta v. The State of Maharashtra and another(supra) was a retrial and for the same offence i.e. under Section 406 I.P.C. but in relation to other property which did not form the subject matter of charge. 14. A re-trial would mean that an accused should be tried again for the same offence. At times such a trial is ordered from the very inception and this is known as de novo trial. Some times it is ordered from a particular stage. A re-trial is ordered when the original trial has not been satisfactory for some reasons or other. A re-trial is ordered when interest of justice would require that additional evidence is brought on record for a just and proper decision in the case. However, in my view, and I am presently advised to say that a re-trial has to be for the very offence for which the accused was tried and cannot be for a separate offence then for which the accused was tried. Strangely, the learned Additional Sessions Judge in an appeal filed by the accused against 9 conviction has exercised revisional powers and granted relief to the prosecution. As already stated the accused was tried under Section 324 I.P.C., amongst others. Inspite of Dr. Bandekar disclosing grievous injuries on one of the victims, the prosecution had not awakened and asked for re-framing of charge. In my view, in an appeal filed by the accused, the prosecution could not have been allowed to file an application seeking a direction that the accused should be tried for all together a different offence for which the accused was not tried earlier. 15. Considering the above, in my opinion, the impugned Order deserves to be set aside and the application filed by the prosecution, dismissed. Consequently, the revision is allowed, the impugned Order is set aside and the learned first appellate Court is directed to proceed to decide the first appeal filed by the Petitioners and other accused in accordance with law. Petitioners to appear before the first appellate Court on 5-6-2010 at 2.30 p.m. N. A. BRITTO, J. RD