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Parvez Mohammed Iqbal Kazi Vs. State of Gujarat - (High Court of Gujarat) (19 Dec 2017)

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



The Applicant has challenged the judgment passed by the learned Sessions Court reversing the judgment of acquittal in favour of the Applicant by the learned 5th Additional Chief Metropolitan Magistrate. The Applicant is facing charges under Sections 406, 409, 420, 467, 468, 471, 201 and 114 of Indian Penal Code, 1860 ("IPC") for siphoning off an amount of Rs. 4,00,000/- with the help of forged Cheque.

The bare perusal of Section 386 of the Code of Criminal Procedure, 1973 (CrPC) 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.

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.

It is evident from the record that, in present 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 afresh and to record the statement of the accused under Section 313 with reference to such witness. 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 there is no illegality so as to interfere with the impugned order. Revision Application dismissed.


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