R/SCR.A/7379/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 7379 of 2015
With
CRIMINAL REVISION APPLICATION NO. 528 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
1 Whether Reporters of Local Papers may be allowed to
see the judgment ? NO
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or
NO
any order made thereunder ?
STATE OF GUJARAT….Applicant(s)
Versus
VISHVAS BRIJESHVAR TYAGI 2….Respondent(s)
Appearance:
IN SPECIAL CRIMINAL APPLICATION NO.7379 OF 2015:
MR DHARMESH DEVNANI, APP for the Applicant
MR AJ YAGNIK, ADVOCATE for the Respondents Nos. 1 – 3
IN CRIMINAL REVISION APPLICATION NO.528 OF 2015:
MR ARCHIT P JANI, ADVOCATE for the Applicant
MR DHARMESH DEVNANI, APP for the Respondent No.1
MR AJ YAGNIK, ADVOCATE for the Respondents Nos.2 – 4
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 01/11/2017
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R/SCR.A/7379/2015 JUDGMENT
ORAL COMMON JUDGMENT
1 The criminal revision application is at the instance of the original
first informant (victim). Whereas the special criminal application under
Article 227 of the Constitution of India is at the instance of the State of
Gujarat. In both the matters, the challenge is to the legality and validity
of the judgment and order passed by the Additional Sessions Judge,
Mehsana, dated 9th June 2015, by which the learned Sessions Judge
dismissed the Criminal Appeal No.38 of 2013 filed by the victim against
the judgment and order of acquittal dated 13th May 2013 passed by the
Judicial Magistrate First Class, Bahucharaji in the Criminal Case No.425
of 2008 and also the judgment and order passed by the Additional
Sessions Judge, Mehsana dated 9th June 2015 by which the Sessions
Judge dismissed the Criminal Appeal No.47 of 2013 filed by the State.
2 It appears from the materials on record that the revisionist,
namely, Manjulika Virendrakumar Tyagi initiated proceedings against her
husband and her inlaws for the offence punishable under Sections
498A, 323, 504, 506(2) read with 114 of the Indian Penal Code and
Sections 3 and 7 of the Dowry Prohibition Act. The Trial Court, after due
appreciation of the evidence on record, acquitted all the three accused of
all the charges. The acquittal appeal filed by the victim before the
Appellate Court also came to be dismissed. It appears that the State of
Gujarat also preferred an acquittal appeal against the judgment and
order of acquittal passed by the Trial Court and the same came to be
dismissed.
3 In such circumstances referred to above, both, the original first
informant as well as the State of Gujarat are here before this Court with
their respective petitions.
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4 Mr. Devnani, the learned Additional Public Prosecutor appearing
for the State took me through the evidence on record. Mr. Devnani, the
learned A.P.P. with his usual fairness pointed out that the Trial Court as
well as the Appellate Court, after due appreciation of the evidence on
record, has thought fit not to believe the case put up by the prosecution.
The learned A.P.P. very fairly pointed out that both the Courts, after due
appreciation of the evidence on record, has reached to the conclusion
that the prosecution has not been able to prove its case beyond
reasonable doubt so far as the offence punishable under Sections 498A
and 323 of the Indian Penal Code is concerned. Mr. Devnani, the learned
A.P.P. also took me through the evidence of the Medical Officer and
pointed out that the allegations of assault are also not substantiated.
This is a case in which the victim as well as the State are aggrieved by
the concurrent findings recorded by the two Courts.
5 Mr. Archit Jani, the learned counsel appearing for the victim
vehemently submitted that the case on hand is one of perverse
appreciation of evidence. Mr. Jani, the learned counsel submitted that
the material evidence has not been taken into consideration by both the
Trial Court as well as by the Appellate Court. In such circumstances,
according to Mr. Jani, the case on hand is one of failure of justice.
According to Mr. Jani, if that be so, then it would be within the powers
of this Court to order a retrial. In support of his submissions, Mr. Jani
has placed reliance on the following decisions:
(1) D. Stephens vs. Nasibolla [1951 SCR 284 : AIR 1951 SC 196]
(2) K. Chinnawamy Reddy vs. State of Andhra Pradesh and
another [(1963) 3 SCR 412 : AIR 1962 SC 1788]Page 3 of 6
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R/SCR.A/7379/2015 JUDGMENT(3) Daungarshi Madanlal Zunzunwala vs. M/s. Deviprasad
Omprakash Bajoria and another [1985 SCC online Bom 322 :
1985 Cri. L.J. 1943]
(4) Ramakant Rai vs. Madan Rai and another [(2003) 12 SCC
395]
(5) Hydru vs. State of Kerala [(2004) 13 SCC 374]
(6) Navnitbhai Harmanbhai Patel vs. State of Gujarat and
others [2016(4) GLR 3050]
6 Mr. A.J. Yagnik, the learned counsel appearing for the accused
persons submitted that after proper appreciation of the evidence on
record, the Trial Court acquitted all the accused persons and the
Appellate Court, after due reappreciation of the evidence, has thought
fit to concur with the view taken by the Trial Court. He would submit
that the case on hand is not one where this Court should order a retrial
on the ground that the acquittal has led to miscarriage of justice or
failure of justice.
7 Having heard the learned counsel appearing for the parties and
having considered the materials on record, the only question that falls
for my consideration is whether any case for retrial is made out.
8 Ordinarily, in the following categories of cases, this Court, in
exercise of its supervisory jurisdiction under Article 227 of the
Constitution of India or in exercise of its revisional jurisdiction under
Sections 401 read with 397 of the Cr.P.C., would be justified in ordering
a retrial:
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[I] Where the Trial Court has no jurisdiction to try the case, but
has still acquitted the accused;
[II] Where the Trial Court has wrongly shut out evidence which
the prosecution wished to produce;
[III] Where the Appellate Court has wrongly held the evidence
which was admitted by the Trial Court to be inadmissible;
[IV] Where the material evidence has been overlooked (either)
by the Trial Court or by the Appellate Court; and
[V] Where the acquittal is based on the compounding of the
offence which is invalid under the law.
9 Having considered the scope of the power to order retrial, in my
view, the same is not warranted in the case in hand. One may not fully
agree with the findings recorded by the Trial Court and affirmed by the
Appellate Court, but as explained by the Supreme Court that by itself, is
not sufficient to order a retrial. Something substantial or more is
required to order a retrial in exercise of the writ jurisdiction, supervisory
or the revisional jurisdiction. An order for retrial of a criminal case is
made in exceptional cases and not unless the Court is satisfied that the
trial was vitiated by serious illegalities or irregularities or on account of
misconception of the nature of the proceedings and on that account in
substance, there had been no real trial or that the prosecutor or an
accused was for reasons over which he had no control, prevented from
leading or tendering evidence to the charge and in the interests of
justice, the Court deems it appropriate, having regard to the
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circumstances of the case, that the accused should be put on his trial
again.
10 In the overall view of the matter, I am convinced that no case is
made out for retrial.
11 In the result, both the petitions fail and are hereby rejected. Rule stands
discharged.
(J.B.PARDIWALA, J.)
chandresh
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