The present Criminal Revision Applications have been filed by the Petitioners challenging the impugned judgment and order passed by the City Civil and Sessions Court, Ahmedabad in Criminal Appeal No. 204 of 2009 read with Criminal Revision Application No.60 of 2011 dated 14.10.2011 on the grounds stated in the memo of Revision Application.
Learned Advocate Mr.D.M.Thakkar appearing for the Petitioners - Original Accused has submitted that the Court below has relied upon the documents, which is not accepted. He submitted that the documents which have been referred, are not even produced by the prosecution, and therefore, such an order remanding the matter back is bad and it would amount to permitting the Respondent No.2 to fill up the lacuna. Learned Advocate Mr. Thakkar submitted that the offence under Section 406 IPC is not proved as the necessary ingredients cannot be said to have been established. He referred to the provisions of Section 406 and submitted that the prosecution has proved the case beyond reasonable doubt based on material and evidence on record. He submitted that if the prosecution has not relied upon some document then such document cannot be considered. He referred to the impugned judgment and order to emphasize that on the one hand the Court below has observed that it agrees with the conclusion and the findings arrived at by the Trial Court and on the other hand he has remanded the matter back observing that as there is no clarity with regard to some aspect, it is remanded back. He submitted that even when the search was made nothing was found from the bank locker or from the house of the accused with regard to stridhan, which is claimed by the Respondent No.2. He submitted that the document which has been referred as Exh.69, whether it is genuine or not or whether it is original, is not proved and established by evidence. He therefore submitted that it would amount to denovo trial, and if such an order is sustained, the Petitioners are required to face the denovo trial again, which would cause prejudice. He therefore submitted that if there was no material evidence establishing the case of the prosecution beyond reasonable doubt, the consequences would follow and such an order for remand of the matter for further evidence would amount to allowing the other side to fill up the lacuna. Learned Advocate Mr. Thakkar therefore submitted that the present Revision Applications may be allowed.
Respondent No.2 who appears as party in person has referred to the papers along with the written submissions at length and submitted that the ornaments and other things, which were offered at the time of marriage as stridhan has not been returned to her. She submitted that the list was prepared but it has not been received by them and she has not signed acknowledgment of such stridhan received by her. She submitted that it was not produced by the prosecution or the defence when her evidence was recorded. She submitted that the I.O. has failed to make necessary investigation and benefit should not be given to the Petitioners - Original accused. Respondent No.2 has also stated that in further statement recorded under Section 313 of Cr.PC mere denial is recorded and no explanation is offered by the Accused. She submitted that various orders have been passed by the different benches, which would reflect the attitude and the conduct of the Petitioners - Original accused. Therefore, she has submitted that her husband has been residing abroad and she has been harassed, for which, she has lodged the aforesaid complaint and other cases. She pointedly referred to Exh.68 and submitted that the document of dissolution / fargati is not genuine. She submitted that the stamp paper, which was given by the husband for the purpose of her visa has been misused.
In rejoinder, learned Advocate Mr. D.M.Thakkar for the Petitioners submitted that if the present order is allowed to sustain, it would amount to denovo trial to be faced by the Petitioners - Original accused persons without any fault on their part. He submitted that even if there was any fault or if some documents were not there, the Respondent No.2 could have taken the appropriate steps either at the stage of investigation or at the subsequent stage during the trial, but such a method of filling up the lacuna cannot be allowed and the present Revision Application may be allowed.
In view of the rival submissions, it is required to be considered whether the present Criminal Revision Application can be entertained or not.
Both the sides have made the submissions at length referring to the various aspects and Respondent No.2 has infact referred to details of the events and also the written submissions and the other facts to emphasize about the conduct of the Petitioners. However, in view of the findings, which have been recorded by the Court below, it is evident that the document at mark 69/1 was not produced, but it was shown to the witness during the recording of the evidence, and therefore, if it is referred to the witnesses during the evidence, it ought to have been exhibited. More over, Respondent No.2 has joined an issue with regard to this aspect that she has not been even given an opportunity to offer her explanation, is a matter, which would require a consideration, and therefore, as there are some lapses, the Court below has, by the impugned order remanded the matter back for deciding afresh after providing an opportunity to both the sides, which cannot be said to be erroneous.
It is required to be appreciated that ultimately, the interest of justice should be served and the underlying purpose of reaching the just conclusion based on the evidence is to be considered. In the facts of the case, when the matter is remanded, it will have the opportunity to both the sides to produce the documents or refer the documents, and offer an explanation or put forward their version, from which the conclusion can be arrived at. Therefore, it cannot be said that it is merely to fill up the lacuna the matter is remanded or there is any prejudice caused to the Petitioners. Infact, it would be in the interest of the parties if the matter is reconsidered after providing an opportunity to both the sides to produce the documents in accordance with law, refer the same and also put forward their cases which will assist the Court in arriving at the conclusion.
Further, the submissions made by learned Advocate Mr. D.M.Thakkar that the scope of exercise of discretion under Section 397 read with Section 401 would be limited, and therefore, the Court may not interfere referring to the judgment of the Hon'ble Apex Court in case of Dhanpal v. State of Madras by Public Prosecutor, 2010 (1) GLH 119 is required to be considered.
In this judgment, the Hon'ble Apex Court has made the observation that if the view taken by the Trial Court is possible or plausible, acquittal cannot be set aside by substituting its reasons. Learned Advocate Mr. Thakkar has emphasized on these observations that the Court is under bounden duty and obligation to deal with the evidence as it is and the prosecution has to prove his case. However, in the facts of the present case, it is required to be mentioned that the view is taken by the Trial Court which in the Appeal before the Sessions Court has been examined and the Sessions Court has remanded the matter back for the reasons discussed in the impugned judgment and order of the Sessions Court, against which the present Revision Applications have been filed. It is in this background, the Court is required to consider the exercise of this revisional power, which is limited, and therefore, it does not call for any interference.
Therefore, the impugned order passed by the Court below does not call for any interference in exercise of revisional jurisdiction, which is even otherwise limited and has to be exercised with care and circumspection. It may not cause any prejudice to either side and the submission made by learned Advocate Mr. Thakkar for the Petitioners that it is a denovo trial, which is likely to cause prejudice, is misconceived as it would on the contrary provide a fair opportunity to both the sides, and therefore, such a submission cannot be accepted. The impugned judgment and order therefore cannot be said to be erroneous or perverse which would call for any interference by this Court. Therefore, the present Criminal Revision Applications deserve to be dismissed and accordingly stand dismissed. Rule is discharged. Interim relief stand vacated.
(Rajesh H. Shukla,J) Jayanti* Top