Bhuneshwar Prasad vs State Of Jharkhand And Ors

Heard Mr. Rajesh Lala, learned counsel appearing on behalf of the petitioner.

Heard Mr. Rakesh Kumar Sinha, learned counsel appearing on behalf of the opposite party â€" State.

Heard Mr. Satish Kumar, learned counsel appearing on behalf of the opposite party no. 2.

This petition is directed against the order of conviction and sentence (Judgment) dated 29.08.2005 passed by the court of learned Additional Dist. &

Sessions Judge III at Dhanbad, in Criminal Appeal No. 130 of 1995, whereby and whereunder conviction and sentence of two years R.I. and a fine of

Rs. 500/-and in default of payment of fine a further period of simple imprisonment for 15 days, under Section 498A IPC awarded by the learned

Judicial Magistrate 1st Class, Dhanbad, to the petitioner, has been affirmed in connection with G.R. Case No. 508/88 vide Trial No. 324/95 under

Section 498-A I.P.C.

Learned counsel for the petitioner submits that the present case can be disposed of on short point of violation of principles of natural justice. The

learned counsel submits that Criminal Appeal No. 130 of 1995 was filed by the present petitioner before the learned lower appellate court against the

judgment and order dated 30.09.1995 passed in T.R. No. 324/1995 in connection with G.R. Case No. 508/1988 by the Judicial Magistrate, 1st Class,

Dhanbad, by which the appellant i.e. the present petitioner was convicted under Section 498A of the Indian Penal Code.

Learned counsel further submits that the appeal was allowed by the court of learned 3rd Additional District and Sessions Judge, Dhanbad in

Criminal Appeal No. 130/1995, against which Criminal Revision No. 711 of 2002 was filed by the opposite party Pramila Devi (wife). The learned

counsel submits that the learned lower appellate court had passed an order of acquittal in favour of the present petitioner and that order of acquittal

was challenged in the Criminal Revision No. 711 of 2002 which was allowed vide order dated 04.01.2005. While allowing the criminal revision, the

impugned judgment of the learned lower appellate court dated 29.05.2002 passed in Criminal Appeal No. 130 of 1995 was set-aside and the matter

was remanded back to the learned lower appellate court to give fresh decision after hearing both the parties and after considering the entire materials

on record, both oral and documentary. The appellate court was directed to dispose of the appeal within a period of two months from the date of

receipt/production of the copy of the said order.

The learned counsel for the petitioner then submits that after the remand in Criminal Revision No. 711 of 2002, the matter was taken up by the

learned lower appellate court for giving a fresh decision, but the lower appellate court, upon taking up the matter, did not issue any fresh notice to the

present petitioner and it has been recorded in the impugned order that fresh opportunity of hearing was given to both the parties. While recording so,

the learned lower appellate court observed that it was apparent from the record that after remand of the case from Hon’ble High Court, the

learned counsel Shri S. K. Mishra appeared on behalf of the appellant, but he could not argue the case for want of instruction from the appellant and

hence, one B. D. Paswan was appointed from the panel of defence lawyer to assist the Court as amicus curiae on behalf of the appellant and

accordingly, he was heard at length.

The learned counsel for the petitioner submits that Shri S. K. Mishra was the counsel on behalf of the petitioner at the appellate stage, but once the

appeal was decided, he was no longer holding the Vakalatnama on behalf of the petitioner. He submits that accordingly the counsel had rightly

submitted that he had no instructions to appear on behalf of the appellant. In such circumstances, once the matter is closed and the matter is ultimately

remanded back by the higher court, then fresh notice is required to be issued to the concerned parties in order to give them an opportunity to present

their respective case. Such notice was all the more required in view of the specific direction issued by this Court in Criminal Revision No. 711/2002

wherein the specific direction was issued that the fresh decision by the learned lower appellate court was to be taken after hearing both the parties.

The learned counsel for the petitioner submits that as the learned lower appellate court, instead of issuing notice to the present petitioner, had

appointed amicus curiae, there was no occasion for the present petitioner to take steps and engage a counsel for proper assistance of the court. The

learned counsel submits that on account of non-issuance of notice by the learned lower appellate court, the petitioner has been prejudiced as the

learned amicus curiae did not assist the learned lower appellate court properly.

The learned counsel for the petitioner further submits that had the learned lower appellate court issued notice and still the present petitioner would

not have appeared before it, then there could have been an occasion to appoint an amicus curiae for the purposes of disposal of the case. He submits

that the learned lower appellate court, upon being submitted by the earlier counsel of the appellant (the petitioner herein) that he had no instruction,

straightaway appointed amicus curiae and decided the matter.

Learned counsel appearing on behalf of the opposite party no. 2 does not dispute the fact that the learned lower appellate court did not issue fresh

notice once the matter was remanded back to the learned court and the counsel who was earlier appearing on behalf of the petitioner, was asked to

argue the case, who refused to argue for want of instructions.

Learned counsel appearing on behalf of the State, while assisting the Court, submits that in such circumstances the matter may be remitted back to

the learned lower appellate court for fresh decision as he also does not dispute that after the order of remand before the lower appellate court, fresh

notice was required to be issued to the respective parties.

After hearing the counsel for the parties and considering the facts and circumstances of this case, this Court finds that it is not in dispute that the

earlier order of the learned lower appellate court dated 29.05.2002 passed in Criminal Appeal No. 130 of 1995 was subject matter of challenge in

criminal Revision No. 711 of 2002 and the matter was remanded back to the learned court below vide order dated 04.01.2005 with a direction to take

a fresh decision after hearing counsel for both the parties. It is further not in dispute that upon remand, the matter was taken up by the lower appellate

court, but the learned lower appellate court did not issue any fresh notice so far as the present petitioner is concerned. It also appears that the counsel

who was conducting the case of the appellant (present petitioner) before the learned lower appellate court prior to passing of the judgment dated

29.05.2002, was asked to appear, but he refused to argue the case as he had no instructions.

This Court is of the considered view that once the matter was remanded back to the learned lower appellate court for fresh decision after giving

an opportunity of hearing to the parties concerned, a fresh notice was required to be issued when the earlier counsel specifically submitted that he had

no instructions. In the instant case, the learned lower appellate court appointed amicus curiae to assist the court and the grievance of the petitioner is

that in absence of instructions from the petitioner, the amicus curiae also did not assist the learned lower appellate court properly, which has resulted in

passing of the impugned order. This Court finds that earlier after considering the case of the petitioner, the petitioner was acquitted by the lower

appellate court, although the matter was remanded to the court concerned for fresh consideration. Accordingly, on account of the submissions made

on the behalf of the petitioner, the impugned judgment dated 29.08.2005 passed by the court of the learned Additional Dist. & Sessions Judge III at

Dhanbad, in Criminal Appeal No. 130 of 1995 is hereby set-aside and the matter is remanded back to the learned lower appellate court for fresh

consideration after giving an opportunity of hearing to the parties.

The parties are directed to appear before the learned lower appellate court on 16.03.2020 and upon their appearance, the learned court below shall

proceed and pass a fresh order in compliance with the order dated 04.01.2005 passed by this Court in Cr. Revision No. 711 of 2002 within a period of

two months thereafter.

This criminal revision petition is hereby disposed of.

Pending interlocutory application, if any, is dismissed as not pressed.

Office is directed to immediately send back the Lower Court’s Records to the learned court below.

Let a copy of this order be handed over to the learned counsel appearing for respective parties.

Let a copy of this order be communicated to the learned court below through ‘FAX’.