S.G. Shah JUDGMENT
S.G. Shah, J.
1. Heard learned advocate Mr. M.M. Tirmizi for the Applicant and learned Additional Public Prosecutor Mr. Manan Mehta for the Respondent - State. Perused the record.
2. The Applicant has challenged the judgment and order dated 6.4.2017 by the learned Sessions Court No. 26, Ahmedabad in Criminal Revision Application No. 384 of 2014 whereby the learned Sessions Court has reversed the judgment of acquittal in favour of the Applicant by the learned 5th Additional Chief Metropolitan Magistrate in Criminal Case No. 902 of 2009 dated 12.4.2014. The Applicant is facing charges under Sections 406, 409, 420, 467, 468, 471, 201 and 114 of Indian Penal Code (for Short "IPC") for siphoning off an amount of Rs. 4,00,000/- with the help of forged Cheque.
3. The Trial Court has acquitted the Applicant so also co-accused observing that when amount of Cheque was released after following due process of honoring Cheque by the Bank, the Applicant cannot be convicted. With due respect, there is material irregularity which amounts to illegality in such observation, inasmuch as, if forged cheques are utilized and if at all, the Officer who has cleared such Cheque could not identify the forgery, it cannot be said that accused is not guilty. If there is positive evidence that the concerned Cheques were not signed by the account holder or in other words, the Cheques are forged then, if there is no criminal liability of the Officer who had cleared the Cheque then at least he is certainly negligent in honoring such Cheque but such negligence may not be considered as innocence of the accused, if other evidence is confirming the commission of offences by the accused as alleged in the chargesheet. Therefore, when State has challenged the order of acquittal before the Appellate Court and when matter was heard before the Appellate Court, the Appellate Court being Sessions Court has found that at-least two pages of deposition of key witness being prosecution witness No. 19 namely; Mr. Afzalkhan Akbarkhan Pathan at Exh. 147 are missing; initially, learned Sessions Judge has tried to get proper copy of such evidence and when it could not succeed in such exercise, the Court has also tried to reconstruct such evidence. However on failure to reconstruct the evidence; both by the Trial Court and by both the advocates; the Sessions Court has vide impugned judgment and order dated 6.4.2017 while reversing the judgment of acquittal, ordered retrial of the case by Metropolitan Magistrate as permissible under Section 386 of the Code of Criminal Procedure, 1973 ('Code' for short) and remanded back the matter to the Trial Court with a direction that deposition of Afzalkhan Akbarkhan Pathan be recorded afresh. Sessions Court has reason to say so because while examining the Record and Proceedings, the Sessions Court has found that even statement of the accused under Section 313 is not properly recorded with reference to the deposition of such witness and few questions are missing in the link and, therefore, there is reason to believe that even Trial Court has decided the matter without referring the full deposition of such witness.
4. At this stage, relevant portion of Section 386 of the Code needs to be recollected, which reads as under: -
"386. Power of the Appellate Court. After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-
(a) In an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed for Trial, as the case may be, or find him guilty and pass sentence on him according to law;"
The bare perusal of Section 386 of the Code makes it clear that the Appellate Court has ample powers to order further inquiry or retrial and in case of acquittal even for committing for Trial and also has power to award sentence if accused is found guilty. Therefore, the powers of the Appellate Court is not limited and thereby if Trial Court has failed to appreciate that the evidence of witness is not available on record in its full format then in fact before concluding the Trial, the Trial Court itself should have recalled the witness for recording his evidence in accordance with law if his evidence is not available on record and proceeding of the case.
5. Therefore, when such irregularity was found by the Appellate Court and when Appellate Court has tried its level best to reconstruct the deposition which is not available, Appellate Court has rightly ordered to reconstruct such deposition by calling the witness since Appellate Court has got ample power to order retrial of the case.
6. If any adverse view is taken against what is stated in Section 386 so also in above discussion then it would certainly amount to material irregularity which would result into illegality inasmuch as in that circumstances, it would be easy for every accused to play with the record and proceeding of the Trial Court and to make some record and evidence unavailable which may confirm their acquittal. That would result into serious consequences to the entire judicial system and proceeding because though innocent should not be convicted is a rule, the rule of law also confirms that there cannot be acquittal only because of lacuna or irregularity in judicial proceeding at the end of litigants. Thereby, the judicial system and the Courts of law have to take care of all the situations so as to see that the victim and injured freely adduce the evidence against the accused and not only victim and witnesses, but also that their evidence are safeguarded so as to confirm conviction. Safeguarding the evidence is equally necessary like safeguarding the witnesses and victim of any such litigation. If evidence of witnesses are not protected from any kind of vices including its unavailability, even if witness has deposed before the Court, then, it would amount to material irregularity and illegality and, therefore, the principle as submitted by the accused herein that Appellate Court should be slow in refusing the judgment of acquittal would not apply to such a case. If such principle is applied in such cases also then as already stated hereinabove, it would be easy for the accused to get acquittal by disturbing the available evidence on record against him. Thereby though facts are very much clear as stated hereinabove, the learned advocate for the Applicant - accused are relying upon few judgments submitting that pursuant to such decisions by different Courts, the judgment of acquittal cannot be disturbed and Appellate Court should never order to recall the witness whose evidence is not available on record. However, the discussion hereinafter with reference to such citations also makes it clear that there is no substance in such submission.
7. Unfortunately, our system is such wherein we are supposed to discuss every submission by both the sides otherwise it would be one of the ground to admit the matter by higher Court whereas in many of the cases, such grounds are taken only with a view to either lingering the matter or to confuse the Court or to get favourable order if Court is not aware and comfortable with the settled legal position. This is one of the reasons for delay in judicial proceedings and huge pendency before each Court. It is surprising to note that an accused is claiming that though evidence against him was recorded by the Trial Court but not available at the time of final determination, now, Court should not endeavor to recall such witness. This leads to the presumption that such evidence may be certainly against the accused so as to confirm his conviction otherwise he would have readily agreed to recalling of witness so as to find out the truth.
8. The Applicant is relying upon the decision of the Hon'ble Supreme Court of India between State of Uttar Pradesh v. Abhai Raj Singh reported in MANU/SC/0192/2004 : 2004(4) SCC 6 : AIR 2004 SC 3235, wherein, when High Court has acquitted the accused only because of non placement of record and proceeding of Trial Court before it, the Hon'ble Supreme Court has after reproducing provision of Section 385 and discussing the provision of Section 386 also and after referring the previous decisions of Hon'ble Supreme Court itself observed and held with reference to a question which arises as to what happens when the reconstruction is not possible, by holding that it has been consistent view taken by several High Courts that when records are destroyed by fire or on account of natural or unnatural calamities, reconstruction should be ordered and that it is obligatory for the Courts to obtain and examine the record at the time of hearing; and when it is not possible to do so, the only available course was a direction for restriction. Said view was envisaged more than six decades ago and reiterated by several High Courts as well as for last six decades. After making such observation, on practice to be followed, the Hon'ble Supreme Court has observed that it is not clear as to why the High Court do not require the Sessions Court to furnish the information about reconstruction of record; and/or itself take initiative by issuing positive direction as to the manner, method and nature of attempts, efforts and exercise to be undertaken to effectively achieve the purpose in the best interest of justice and to avoid ultimately any miscarriage of justice resulting from any lapse, inaction or inappropriate or perfunctory action, in this regard; particularly when any action was taken by High Court to pass necessary orders for about a decade when it received information about destruction of record. This observation goes to show that it is the duty of the Appellate Court as well as Trial Court to reconstruct the record at the earliest when it is noticed. In the present case, Trial Court has failed to do so whereas Appellate Court has directed in conformity of such observation and, therefore, no fault can be found in the impugned order. The observation of the Hon'ble Supreme Court in the following words is the crux of the dispute whereby it is stated that the course adopted by the High Court i.e. acquitting the appellant, only because of non availability of evidence in form of record and proceedings before it, if approved, would encourage dubious persons and detractors of justice by allowing undeserved premium to violators of law by acting hand in glove with those anti social elements coming to hold sway, behind the screen, in the ordinary and normal course of justice. After saying so, the Hon'ble Supreme Court has also observed that if reconstruction is not practicable or possible, but in the interest of justice, could be better served by order of retrial then, Court should adopt that course and direct retrial and from that stage, law shall take its normal course. Thereby, practically, though this judgment is not in favour of the Applicant, Applicant is relying upon the head note of such judgment.
9. Thereby, when there is direct judgment of Hon'ble Supreme Court, the remaining two decisions referred by the Applicant between Sornam v. State of Tamil Nadu reported in MANU/TN/0569/1988 : 1989 LW(Cri.) 449 so also unreported judgment between the State of Gujarat v. Kishor Vaikuntray Joshi dated 22.1.2010 in Criminal Appeal No. 1589/2004 are not binding to this Court and not material when Hon'ble Supreme Court judgment in the case of Abhai Raj (Supra) is clear on the subject. In both those cases, the learned Single Judge of both the High Courts have acquitted the accused only because of non availability of record, whereas, in the case of Kishor Vaikuntray Joshi (Supra), the Coordinate Bench of this High Court has also relied upon few judgments to establish the legal position in force that in any acquittal appeal, the Appellate Court is not required to give fresh reasoning for converting the acquittal into conviction. However, in view of position discussed hereinabove, when acquittal by Trial Court is based upon non appreciation of total evidence before it, such principle would not be applicable in the present case.
10. The Applicant is also relying upon the recent decision dated 1.2.2016 by another Coordinate Bench of this High Court between Harishkumar Trikamlal Joshi v. State of Gujarat in Criminal Revision Application No. 294 of 2009 wherein the Coordinate Bench has acquitted the Applicant accused before it because of non availability of record and proceeding. When Applicant has relied upon such judgment, on scrutiny of such judgment it becomes clear that though the Coordinate Bench has acquitted the accused in that case, Court has also considered the question that when record of Trial Court is destroyed, what options are available before the Appellate Court and relying upon so many other cases including the case of Abhai Raj (Supra), the Coordinate Bench has held that when record of Trial Court is destroyed, two options are available before the Appellate Court; (1) the Appellate Court can direct for reconstruction of file to the lower Court and then the appeal can be considered on its own merits (2) if the reconstruction of file is not possible, the Appellate Court can give direction for retrial and, therefore adjudication by the Trial Court. In the cited case, when Appellate Court has without following any such option simply confirmed conviction without referring record and proceeding and when High Court feels that after the passage of long span from the date of incident which was in the year 1986-87 and when first conviction is in the year 2000 whereas confirmation of conviction by Sessions Court is in the year 2009 and, thereafter, when Revision was taken up for final hearing in the year 2016, the Coordinate Bench has thought it fit to acquit the Applicant accused only because of the fact that after such long time, now, there is no reason for remanding the matter for retrial when Appellate Court has failed to adopt either of the aforesaid two options.
11. Whereas, in the present case, the factual details are not so worse inasmuch as, the offence was registered in the year 2009, the judgment of Trial Court is of the year 2014 whereas judgment of the Appellate Court ordering retrial is of the year 2017 only and, therefore, when we are disposing this revision in the year 2017, I do not see any reason to follow the same practice adopted by Coordinate Bench of learned Single Judge since it as purely on peculiar factual details of that case. However, so far as legal principles are concerned, Coordinate Bench has also confirmed that in case of non availability of record, there are two options available to the Appellate Court.
12. It is evident from the record that in this case the Appellate Court has followed both such steps, whereby, at first instance, the Appellate Court has tried to restrict the record and when it was confirmed that reconstruction is not possible, the Appellate Court has ordered for retrial of the case for limited purpose so as to record evidence of the witness Afzalkhan Akbarkhan Pathan afresh and to record the statement of the accused under Section 313 with reference to such witness Afzalkhan Akbarkhan Pathan. Thereby, the Trial Court has instead of ordering the retrial of entire Trial against the Applicant - accused remanded the matter for limited purpose with a direction to decide it again within the period of six months. In view of operative portion of the impugned order and what is discussed hereinabove, I do not see any irregularity or illegality so as to interfere with the impugned order.
13. At this stage, it would be appropriate to recollect the observation in paragraph Nos. 36 and 37 of Hon'ble Supreme Court of India in its decision between Zahira Habibullah Sheikh v. State of Gujarat reported in MANU/SC/0489/2004 : 2004(0) SCC 158 : AIR 2004 SC 3114 which reads as under: -
"36. This Court has often emphasized that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and harmful to the society in general. The concept of fair Trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society is not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice - often referred to as the duty to vindicate and uphold the 'majesty of the law'. Due administration of justice has always been viewed as a continuous process. not confined to determination of the particular case, protecting its ability to function as a Court of law in the future as in the case before it. If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the Trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in rational to proceedings, even if a fair Trial is till possible, except at the risk of undermining the fair name and standing of the Judges or impartial and independent adjudicators.
37. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the Courts of law. It has to be unmistakably understood that a Trial which is primarily aimed at ascertaining truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair Trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the Trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will be not correct to say that it is only the accused who must be fairly dealt with. That would be turning Nelson's eyes to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal Trial. Denial of a fair Trial is as much injustice to the accused as is to the victim and the society. Fair Trial obviously would mean a Trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair Trial means a Trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair Trial. The failure to hear material witnesses is certainly denial of fair Trial."
14. In view of above facts and circumstances and discussion, the Revision Application stands dismissed. Interim Relief, if any, stands vacated forthwith. Thereby, now the Trial Court shall proceed further in accordance with direction in impugned judgment dated 6.4.2017 in Criminal Appeal No. 384 of 2014. Rule is discharged.
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