1 2025:CGHC:52511 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRR No. 136 of 2025 1 - Kailash Agrawal S/o Late Tekchandra Agrawal Aged About 53 Years 2 - Priya Agrawal D/o Late Tekchandra Agrawal Aged About 27 Years 3 - Hemant Agrawal S/o Late Tekchandra Agrawal Aged About 25 Years 4 - Vinod Kumar S/o Late Tekchandra Agrawal Aged About 48 Years 5 - Vikas Agrawal S/o Vinod Agrawal Aged About 25 Years All above are R/o Bilaspur Chowk, Ambikapur, District Surguja (C.G.). ... Applicants versus 1 - Ramesh Agrawal S/o Mahavir Agrawal Aged About 40 Years R/o Subashnagar, Police Station Gandhinagar, Tahsil Ambikapur, District Surguja (C.G.). 2 - State of Chhattisgarh Through - Police Station - Ambikapur, District - Surguja (C.G.). ... Respondent(s) For Applicants : Shri Anurag Singh, Advocate. For Respondent No.1 : Ms. Astha Patel on behalf of Smt. Hamida Siddiqui, Advocate. Hon’ble Shri Justice Ravindra Kumar Agrawal, J Order on Board 28.10. 202 5 1. Present Criminal Revision under Section 438 read with Section 442 of BNSS, 2023 has been filed by the applicants against the impugned judgment dated 04.12.2024 passed by Second Additional Sessions Judge, Ambikapur, District Surguja, in Criminal Appeal No. 163/2019 whereby the Criminal Appeal filed by the complainant/victim against acquittal of the accused persons in Criminal Case No.2333 of 2013 by the Chief Judicial Magistrate, Ambikapur, District Surguja vide Digitally signed by INDRAJEET SAHU Date: 2025.11.11 14:32:12 +0530 2 judgment dated 13.11.2019 was allowed and the matter was remitted back to trial court for deciding the case afresh after providing proper opportunity to the parties to lead evidence. 2. The applicants are accused persons in Criminal Case No.2333 of 2013 which was arising out of Crime No.02/2012 registered at Police Station Ambikapur, District Surguja, for the offence under Sections 294,506- B,323,34,147,148 and 149 IPC. It is alleged in the complaint made by respondent No.1/complainant that on 12.11.2011 when the complainant was in St. Johns School and discussing about study of his daughter, at that time the accused persons armed with Lathi, Danda, Knife and Pistol, came there and committed loot of Rs.9800/- from the complainant. The statement of complainant was recorded in which he disclosed the entire incident. On 06.07.2012 supplementary statement of the complainant was recorded in which he disclosed that one Anil Soni informed him that accused Hemant Agrawal was having Pistol with him at the time of incident which he disclosed to the police. The other witnesses i.e. wife and father in law of the complainant disclosed only simple altercation. During investigation, only offence under Sections 294,506-B and 323 IPC were prima facie appears against the accused Kailash Agrawal and Priya Agrawal, however, at the time of filing charge sheet the public prosecutor recommended for filing of charge against the other accused persons Vinod Agrawal, Kalu @ Vikas Agrawal and Hemant Agrawal as there was sufficient evidence against them also for filing charge sheet and thereafter the charge sheet has been filed against all the accused persons. Charges for the 3 offence under Sections 294, 506-II, 323 and 147/149 IPC have been framed against the accused persons. 3. After trial of the case, the accused persons have been acquitted by the trial court vide its judgment dated 13.11.2019. The said judgment of acquittal was challenged by the complainant who is the victim of the case by filing Criminal Appeal before the Second Additional Sessions Judge, Ambikapur, under Section 372 of CrPC. While hearing of said Criminal Appeal, the appellate court observed that no sufficient opportunity was provided to prosecution to lead evidence and trial court ought to have made their endeavor to examine the witnesses, however, no proper efforts were made for examination of witnesses, as such allowed the appeal vide order dated 04.12.2024 and remitted the matter back to the trial court for deciding the case afresh after providing proper opportunity of leading evidence to the party. The said judgment dated 04.12.2024 is under challenge in the present criminal revision by the accused persons. 4. Learned counsel appearing for the applicants would submit that the appellate court has exceeded its jurisdiction in remitting back the matter to trial court for deciding the case afresh. The appellate court should have examined the merits of the case. The judgment of acquittal can be set aside only after considering the fact that the evidence available on record have not been properly appreciated by the trial court or there is perversity in the judgment passed by the trial court. Only on the ground that no proper opportunity to lead evidence to the prosecution was provided by the trial court and without considering the merits of the case the appeal cannot be allowed and 4 matter cannot be remitted back to the trial court for its fresh adjudication. He would further submit that matter cannot be remanded for fulfilling the lacuna in the prosecution’s case or evidence and the appellate court should have considered the case on merits and its proper appreciation of evidence. Therefore, there is material illegality and irregularity in the judgment passed by the appellate court and the same may be set aside. In support of his contention he relies upon judgments passed by Supreme Court in cases of Bhupatbhai Bachubhai Chavda and Another Vs. State of Gujrat, 2024 SCC Online SC 523, Chandrasekhar Patel Vs. Suresh & Others, 2023 SCC Online SC 1685, Chaman Lal Vs. State of Himachal Pradesh, 2020 (17)SCC 69 and Issac @ Kishore Vs. Ronald Cheriyan & Others, 2018(2)SCC 278. 5. On the other hand, learned counsel appearing for the respondent No.1/complainant would oppose the submissions made by the counsel for the applicants and have submitted that the appellate court has ample power to remit the matter back as provided under Section 386(a) of CrPC which they have rightly exercised and remitted the matter back for its fresh adjudication. The appellate court has every power to prevent the abuse of process of court. The appellate court holding that no proper opportunity of leading evidence was provided to the prosecution which leads miscarriage of justice, remitted the matter back to trial court for its fresh adjudication and there is no illegality or irregularity in the said judgment passed by the appellate court. 6. I have heard the counsel for the parties and perused the material annexed with the criminal revision. 5 7. The sum and substance of the submissions made by the counsel for the applicants is that, without considering the case on merits the appellate court cannot remit the matter back for its fresh adjudication particularly when the appeal against judgment of acquittal has been filed by the complainant. The appeal against acquittal has been provided under proviso to Section 372 of CrPC and right to file acquittal appeal has been given to the complainant/victim against the judgment of acquittal. The powers of the appellate court dealing with the appeal against acquittal has been provided under Section 386(a) of CrPC. It is necessary to notice here the provisions of Section 386 (a) CrPC which reads as under: “386. Powers 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 re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;” 8. The Supreme Court in case of Nasib Singh Vs. State of Punjab and Another, 2022(2)SCC 89 has discussed the scope for interference while exercising the powers under Section 386(a) CrPC, and held in paragraph 19 to 23 as under : “19. Section 386 of the CrPC defines the powers of the Appellate Court and is extracted below: "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- 6 (a) in an appeal from an order or acquittal, reverse such order and direct that further inquiry be made, or that the accused be re- tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; (b) in an appeal from a conviction- (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; (c) in an appeal for enhancement of sentence- (i) reverse the finding and sentence and acquit or discharge the accused or order him to be re- tried by a Court competent to try the offence, 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, so as to enhance or reduce the same; (d) in an appeal from any other order, alter or reverse such order; (e) make any amendment or any consequential or incidental order that may be just or proper; Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement: Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal." (emphasis supplied) Under clause (a), the Appellate Court is empowered inter alia in an appeal from an order of acquittal: (i) To reverse such order and direct that a further inquiry be made; or (ii) That the accused be re-tried or committed for retrial; or (iii) Find him guilty and pass sentence on him according to law. The power of the Appellate Court to order a retrial is also recognized in clause (b)(i) in the context of an appeal from a conviction and in clause (c)(i) in an appeal for enhancement of sentence. 20. The scope of the power of the Appellate Court to direct a re-trial has come up before this Court for interpretation in several decisions. The judgment of a has dealt with the issue extensively. In that case, the appellant was tried before the Judicial Magistrate for the offence of rash and negligent driving while under the influence of liquor thereby causing the death of one person and injuries to four others and for offences under the Motor Vehicles Act. The Trial Judge held that the evidence was not sufficient to prove that the appellant was driving the motor vehicle at the time of the mishap and acquitted him of the offences under the Motor Vehicles Act and the Penal Code. But he held 7 that the evidence established that the appellant had consumed illicit liquor and committed an offence punishable under Section 66(b) of the Bombay Prohibition Act. The appellant was convicted and sentenced to imprisonment for three months and was directed to pay fine. On appeal, the Sessions Court set aside the order of the trial court and ordered a retrial on the ground that a "fair and full trial" had not taken place. The revision was summarily dismissed by the High Court which led to the appeal to this Court. 21. Justice J.C. Shah, speaking for the Constitution Bench observed: 11. proceeding, and exposes the person accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons. 22. The Court held that though undoubtedly the trial before the Magistrate suffered from irregularities and the evidence led was deficient on important aspects; that could by itself not be a sufficient ground for directing a retrial. If additional evidence was to be brought on the record, a retrial was not required and the procedure prescribed by Section 428(i) of the 1898 Code could have been resorted to. 23. The above extract emphasizes that a retrial would not be ordered unless the Appellate Court is satisfied that: 23.1. The court trying the proceeding had no jurisdiction; 23.2. The trial was vitiated by serious illegalities and irregularities or on account of a misconception of the nature of the proceedings as a result of which no real trial was conducted; or 23.3. The prosecutor or an accused was for reasons beyond their control prevented from leading or tendering evidence material to the charge and that in the interest of justice, the Appellate Court considers it appropriate to order a retrial. 23.4. Another feature which emerges from the above decision is that an order of retrial wipes out from the record the earlier proceeding and exposes the present accused to another trial. It is for that reason that the court has affirmed the principle that a retrial cannot be ordered merely on the ground that the prosecution did not produce proper evidence and did not know how prove their case.” 9. It is quite vivid from the judgment passed by the Supreme Court that re-trial would not be ordered unless the appellate court is satisfied that trial was vitiated by serious illegalities and irregularities or on account 8 of misconception of the nature of the proceeding as a result of which no real trial was conducted and the prosecutor or an accused was, for reasons, beyond their control prevented from leading or tendering evidence material to the charge and that in the interest of justice the appellate court considers it appropriate to order a retrial. 10. While considering the appeal filed by the complainant against the judgment of acquittal, the appellate court has considered that on 07.01.2013 the charge sheet was filed against the accused persons for the offence under Sections 294,506-B,323,34,147,148 and 149 IPC and total 11 witnesses were cited. On 01.04.2013 the complainant made an application before trial court for adding other Sections of 394 and 324 IPC and Sections 25 & 27 of Arms Act. However, his application was decided by saying that it has to be considered at the time of framing of charge. On 26.02.2014 the charges have been framed against the accused persons. On 18.01.2016 an application under Section 91 CrPC was filed by the accused persons which remains pending consideration up to 18.04.2018 and till that date none of the prosecution witnesses would be examined by the prosecution. On 05.12.2018 recording evidence of complainant Ramesh Kumar was started, however, his evidence could not be completed and it was suspended. Thereafter an application was made in the case for adding additional witness Pankaj Shukla, Addl. Superintendent of Police. On 22.01.2019 the evidence of Ramesh Kumar Agrawal was again suspended which was completed on 19.03.2019. Again on 14.05.2019 an application under Section 311 CrPC was filed by the accused persons for recalling Ramesh Agrawal for his re-cross examination 9 which was allowed on 26.06.2019 and he was re-crossexamined on 03.09.2019. On 06.09.2019 the application for adding the additional witness Pankaj Shukla was allowed and his name was also included in the list of witnesses. On 12.09.2019 the witness Lukas Tirkey was examined, however, looking to the length of pendency of criminal case last opportunity was provided to the prosecution and on 20.09.2019 two witnesses Lal Bhuvan Singh and Mahavir Prasad were examined. On 18.10.2019 again last opportunity was given to the prosecution for producing their evidence and ultimately on 01.11.2019 the opportunity to produce evidence of the prosecution for forfeited. On 04.11.2019 the statement of accused persons under Section 313 CrPC have been recorded. Again on 04.11.2019 an application under Section 311 CrPC was filed by the prosecution for calling of the witnesses, however, the said application was rejected on the ground that sufficient opportunity was already provided to the prosecution to produce their witnesses and after hearing the parties the judgment of acquittal has been passed on 13.11.2019. 11. Considering the entire manner in which the trial was conducted, various applications were filed either by the prosecution or by the accused persons, the reasons for adjournment of the proceeding and the procedure adopted by the trial court for trial of the case, the appellate court considers that trial court has failed to exercise its jurisdiction to examine the prosecution witnesses and to provide proper opportunity to the prosecution. Even no sufficient efforts have been made by the trial court to get the prosecution witnesses examined or serving summons to the witnesses and therefore set aside the 10 impugned judgment of acquittal and remitted the matter back for its adjudication after providing proper opportunity to lead evidence to the parties. The course adopted by the appellate court cannot be said to be arbitrary or illegal keeping in view the provisions of Section 386(a) of CrPC as well as paragraph 23 of judgment passed by the Supreme Court in the matter of Nasib Singh (Supra). 12. From the judgment cited by the counsel for the applicants in Issac @ Kishore (Supra) the Supreme Court has also held in paragraph 10 that while invoking the powers under Section 386(a) of CrPC, the court may revers the order of acquittal and direct that the accused may be retried. The other judgments cited by the counsel for the applicants are distinguishable with the facts and consideration of the present case and no benefits can be extended to them from that judgments. 13. Consequently, this court does not find any illegality of infirmity in the impugned judgment dated 04.12.2024 passed by the Second Additional Sessions Judge, Ambikapur, in Criminal Appeal No.163/2019 and the present Criminal Revision being lack of merit deserves to be and is hereby dismissed. Interim order stands vacated. 14. Copy of this order be forwarded to trial court concerned for information and necessary proceeding. Sd/- (Ravindra Kumar Agrawal) Judge inder