Harjinder Kaur vs U.T.Chandigarh

V.S. Aggarwal, J.

This is a revision petition filed by Harjinder Kaur and others (hereinafter described as ''the petitioners'') directed against the judgment pronounced by the learned Additional Sessions Judge, Chandigarh dated 1.5.1995. By virtue of the impugned judgment, the learned Additional Sessions Judge accepted the appeal filed by the accused and has set aside the judgment and sentence passed by the learned Judicial Magistrate. The learned Judicial Magistrate was directed to rerecord the statements of the accused under Section 313 of the Code of Criminal Procedure. Opportunity was to be given to lead fresh evidence in defence, if any.

The relevant facts are that on 24.2.1994 at about 9.30 p.m. Deepo P. Masih a staff nurse of Post Graduate Institute of Medical Sciences & Research (for short ''PGI'') alongwith her colleague Ms. Krishna Kashyap and their two relations were sitting in the lawns of Nivedita Hostel, PGI. Suddenly a PGI van stopped at some distance. Three persons Gurbax Singh, Security Inspector, Ujagar Singh, Security Supervisor and Constable Kuldip Singh emerged from the van. They ordered Deepo P. Masih and three others to sit in the van. Deepo P. Maish, Krishna Kashyap and their two relations were forcibly made to sit in the van. They were taken to the Security Officer Shri D.S. Hora. Gurbax Singh and Ujagar Singh misbehaved and manhandled the male relatives of Deepo P. Masih. They were caught from their hairs. Harjinder Kaur was there and she asked the Security Officer to teach the staff nurses and their companions a lesson. Shri Hora severely gave beating to the male companions by pulling their hairs. They were slapped also. The staff nurses were directed to rub their noses which they did under duress. They were detained in the security office for about two hours and then allowed to go.

On basis of the complaint that was made, investigation was conducted and accused persons were tried. After the trial, the learned Judicial Magistrate passed the judgment of conviction against the accused petitioners and thereupon passed a separate order of sentence. The accused persons Harjinder Kaur and others preferred an appeal.

The learned Additional Sessions Judge vide the impugned judgment held that with respect to certain offences, the learned Judicial Magistrate has not recorded any finding nor passed an order of sentence. It was noted that with respect to the offence punishable under Section 323 IPC no finding of conviction has been recorded. The judgment was silent with respect to the charge under Section 506 IPC framed against Gurbax Singh petitioner. Without recording findings on the proof of guilt under Sections 323 and 506 of the Indian Penal Code against Gurbax Singh and Ujagar Singh, the learned Judicial Magistrate awarded them a sentence of Rs. 500/ each. In Addition to that the learned Additional Sessions Judge further recorded that while the statements of the accused were recorded, material questions pertaining to the evidence were not put to them. It caused grave and substantial prejudice. Accordingly acting under Section 386(b)(i) of the Code of Criminal Procedure, the case was remitted back to the learned judicial Magistrate.

Aggrieved by the same, the present revision petition has been filed.

Learned counsel for the petitioner at the outset urged that keeping in view the nature of the assertions it was an offence of trivial nature and, therefore, as no specific harm was caused, the petition should be allowed and proceedings quashed. He relied upon Full Bench decision of Delhi High Court in the case of Ms. Neelam Mahajan Singh v. Commissioner of Police & Ors., 1994(1) RCR 6 . Perusal of the cited decision reveals that it is of no help to the petitioners. In the said case at the initial stage, the first information report was quashed. It was felt that nature of the assertions would attract Section 95 of the Indian Penal Code.

It is not so in the present case. It is not that the case is at initial stage. The trial has virtually been completed. Even otherwise the nature of the allegations certainly shows that if proved it cannot be described that it was slight harm and no person would complain.

In that event it was asserted that the learned Additional Session Judge had no power to remit the case to the learned Judicial Magistrate. The answer would be provided by Section 386 of the Code of Criminal Procedure. The relevant portion reads:

"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 cases 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

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(b) in an appeal from a conviction

(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be retried 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."

The above said provisions clearly show that the Appellate Court has the power to reverse the findings of sentence and direct retrial by the Court of a competent jurisdiction. It is precisely what has been done by the learned Additional Sessions Judge. It was noticed that order of sentence passed was not in order and statements under Section 313 Cr.P.C. were not recorded properly. In these circumstances, it was appropriate that the wrong was set right and proper statement recorded and thereby the judgment recorded by the learned Judicial Magistrate was not in accordance with law.

The decision rendered by this Court in the case of Makhan Singh v. State of Punjab, 1992(2) RCR 109 will not help the petitioners. In the cited case though it was recorded that statement under Section 313 Cr.P.C. was not recorded properly. But the petitioner therein were acquitted because even the identity of the accused petitioners had not been established. It is not so in the present case. Herein as already referred to above, even the order of sentence did not hold the petitioners guilty of certain offences but punishment was awarded. It became necessary that provisions of Section 386 Cr.P.C. should be invoked. There is no ground to interfere.

In these circumstances, there is no illegality in the order passed by the First Appellate Court. The revisions petition must be held to be without merit. The same is dismissed. By way of abundant caution, it is clarified that nothing said herein should be taken as an expression of opinion on the merits of the matter.