State of Gujarat v. Bhalchandra Laxmishankar Dave
M. R. SHAH, J.
1. Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 12.01.2015 passed by the High Court of Gujarat in
Criminal Appeal No.92 of 2003 by which the High Court has acquitted
the respondent herein – original accused for the offences under Section
7 read with Sections 13(1) & 13(2) of the Prevention of Corruption Act
(hereinafter referred to as ‘the Act’) by quashing and setting aside the
judgment and order of conviction passed by the Learned Special Judge,
Bharuch, the State of Gujarat has preferred the present appe al.
STATE OF GUJARAT v. BHALCHANDRA LAXMISHANKAR
DAVE
3. The respondent herein – original accused (hereinafter referred
to as ‘the accused’) who was working as Assistant Director in ITI,
Gandhi Nagar was charged for the offences punishable under Section 7
read with Sections 13(1) and 13(2) of the Act.
3.1 The Learned Special Judge, Bharuch after full-fledged t rial
and appreciation of the entire evidence on record and by detailed judgment
and order convicted the accused under Section 7 read with Sect ions
13(1) and 13(2) of the Act. The Learned Special Judge held the accused
guilty and convicted the accused for the aforesaid offences and imposed
the sentence of 5 years imprisonment and with fine of Rs.10,000/-.
3.2 Feeling aggrieved and dissatisfied with the judgment and order
of conviction and sentence passed by the Learned Special Judge in Special
A.C.B. Case No.14/2000 - the accused preferred appeal before the
High Court being Criminal Appeal No.92 of 2003. By the impugned
judgment and order, the High Court without any detailed re-appreciation
of the entire evidence on record, has acquitted the accuse d for the
offences for which he was convicted.
4. Feeling aggrieved and dissatisfied with the impugned judgment
and order of acquittal passed by the High Court, the State of Gujarat has
preferred the present appeal.
5. We have heard Ms. Deepanwita Priyanka, Learned Advocate
appearing on behalf of State of Gujarat and Shri J.S. Attri , Learned
Senior Advocate and Shri Haresh Raichura, Learned Advocate appearing
on behalf of respondent – accused.
5.1. Number of submissions have been made by learned counsels
of the respective parties. However, for the reasons stated herein below,
we propose to remand the matter to the High Court, any obser vation
made by this Court may affect either the prosecution or the defence, we
refrain from dealing with the submissions made by the Learned counsels
appearing on behalf of the respective parties on merits.
6. We have gone through the detailed judgment and order of
conviction passed by the Learned Trial Court and also the evidence on
record laid down by the prosecution as well as the defence. We have
perused the impugned judgment and order of acquittal passed by the
High Court to ascertain whether the High Court has conformed to the
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principles while exercising in the criminal appeal against the judgment
and order of conviction. We find that the High Court has not stric tly
proceeded in the manner in which High Court ought to have while dealing
with the appeal against the order of conviction. On perusal of the impugned
judgment and order of acquittal passed by the High Court, we find that,
as such, there is no re-appreciation of the entire evidence on record in
detail while acquitting the respondent – accused. The High Cou rt has
only made general observations on the depositions of the wit nesses
examined. However, there is no re-appreciation of the entire evidence
on record in detail, which ought to have been done by the High Court
while dealing with the judgment and order of conviction passed by the
Learned Trial Court.
6.1 The High Court ought to have appreciated that it was dealing
with the first appeal against the order of conviction passed by the Learned
trial Court. Being First Appellate Court, the High Court was required to
re-appreciate the entire evidence on record and also the reasoning given
by the Learned trial Court while convicting the acc used.
Non-re-appreciation of the evidence on record may affect t he case of
either the prosecution or even the accused. Being the Firs t Appellate
Court the High Court ought to have re-appreciated the entire evidence
on record without any limitation, which might be there while dealing with
an appeal against the order of acquittal passed by the Lea rned Trial
Court.
6.2 An Appellate Court while dealing with an appeal agains t
acquittal passed by the Learned trial Court, is required to bear in mind
that in case of acquittal there is double presumption i n favour of the
accused. Firstly, the presumption of innocence is available to him under
the fundamental principle of criminal jurisprudence that e very person
shall be presumed to be innocent unless he is proved guilty by a competent
court of law. Secondly, the accused having secured his acquitta l, the
presumption of his innocence is further reinforced, re affirmed and
strengthened by the trial Court. Therefore, while dealing with the cases
of acquittal by the trial Court, the Appellate Court would have certain
limitations. Even in the case of acquittal passed by the Learned Trial
Court, in the case of Umedbhai Jadavbhai vs. The State of Gujarat ,
(1978) 1 SCC 228, it is observed and held by this Court that “Once the
appeal is entertained against the order of acquittal, the H igh Court is
STATE OF GUJARAT v. BHALCHANDRA LAXMISHANKAR
DAVE [M. R. SHAH, J.]
entitled to re-appreciate the entire evidence independently and come to
its own conclusion. Ordinarily, the High Court would give due importance
to the opinion of the Sessions Judge if the same were arr ived at after
proper appreciation of the evidence. The High Court would be justified
against an acquittal passed by the Learned Trial Co urt even on
re-appreciation of the entire evidence independently and c ome to its
own conclusion that acquittal is perverse and manifestly er roneous”.
However, so far as the appeal against the order of conviction is concerned,
there are no such restrictions and the Court of appeal has wide powers
of appreciation of evidence and the High Court has to re-appreciate the
entire evidence on record being a First Appellate Court. Keeping in mind
that once the Learned Trial Court has convicted there shall not be
presumption of innocence as would be there in the case of acquittal.
7. On perusal of the impugned judgment and order of acquittal
passed by the High Court, we find that High Court decision is based on
totally erroneous view of law by ignoring the settled legal position. The
approach of the High Court in dealing/non-dealing with the evidenc e
was patently illegal leading to grave miscarriage of justice. Therefore,
we are of the firm opinion that the impugned judgment and order passed
by the High Court acquitting the respondent – accused without adverting
to the reasons given by the Learned trial Court while convicting the
accused and without re- appreciating the entire evidence on re cord in
detail cannot be sustained and the same deserves to be quashed and set
aside. We are of the opinion that therefore matter deserves to be remanded
to the High Court to consider and deal with the app eal afresh in
accordance with law and on its own merits keeping i n mind the
observations made hereinabove. The High Court ought to have
appreciated that it was dealing with the offences under the Prevention
of Corruption Act which offences are against the society. And therefore
the High Court ought to have been more careful and ought to have gone
in detail. We do not approve the manner in which the High Court has
dealt with the appeal.
8. In view of the above and for the reasons stated hereinabov e
and without expressing anything on merits of the case, the present appeal
is allowed. The impugned judgment and order dated 12.01.2015 in Criminal
Appeal No.92 of 2003 passed by the High Court acquitting the accused
for the offences under the Act for which he was tried is hereby quashed
and set aside. The appeal before the High Court is restored to its original
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file. The High Court to decide and dispose of the appeal in accordance
with law and on its own merits bearing in mind the observations made
hereinabove. At the cost of repetition we observe that w e have not
expressed anything on merits in favour of either prosecution or even the
accused and the High Court to decide and dispose of the appeal on its
own merits as observed hereinabove.
Devika Gujral Appeal allowed and matter remitted to High Court.
STATE OF GUJARAT v. BHALCHANDRA LAXMISHANKAR
DAVE [M. R. SHAH, J.]