Pateram vs State Of Uttarakhand

Sharad Kumar Sharma, J

A prosecution was instituted by way of Criminal Case No. 794 of 1998 'State vs. Pateram', whereby, the accused respondent, who is the revisionist herein, was being tried for commission of an offence under Sections 409, 420 and 468 of IPC, which was registered against him for the alleged commission of fraud in the passbooks, and in the accounts of the account holders for an amount of Rs. 10,106.65/- and it was thereafter contended that the petitioner has had usurped the said amount and thus he has indulged in commission of an offence of usurpation of public money fraudulently, which otherwise was to be deposited in the post-office in the accounts of the respective account holders.

Based on the aforesaid complaint, which was registered against him, a Criminal Case No. 794 of 1998 'State vs. Pateram' was initiated and after submission of the charge-sheet, which was only with regards to the commission of the offence under Section 409 of IPC, the cognizance was taken by the learned Trial Court. In support of the case the prosecution, i.e. the State has adduced the evidence of PW1-Radhakrishna Suyal, PW2-Ummed Singh Rawat, PW3-Devi Prasad Bhatt, PW4-Puran Lal Patwari. The statement of the revisionist was recorded under Section 313 of Cr.P.C., though the revisionist has attempted to deny the allegations levelled against him with regards to the commission of offence under Section 409 of IPC, he had further contended thereof that he has been fraudulently leveled with the allegations for commission of offence of the usurpation of the public money.

Based on the consideration of the evidence and the statement recorded by the prosecution witnesses including the evidences, which was produced before the court below as an exhibit-ka7, that was the registers, which are maintained by the post-office, which was proved, as well as, the 24 passbooks, which showed that the amount, which was thus supposed to be deposited in the said account, it was found that for the period w.e.f. 08.04.1991 to 7.04.1995, the total amount, which was after evidence was ultimately held to have usurped by the revisionist, was computed to be Rs. 10,106.65/-.

The allegation was, that the revisionist accused, though in fact he has received the money himself, but has not made any entries in the records maintained in the passbooks, and rather he himself has kept it with himself and, thus, has misutilized the money. The prosecution, who was supposed to prove the charges leveled against the revisionist, has also produced by the evidence the register maintained by the post-office as exhibit-5ka, 15ka, 16ka and 23ka, which showed that no entries as such was depicted in the said register with regards to the aforesaid deposit made during the period of 8.04.1991 to 07.04.1995.

The contention as expressed by the prosecution witness PW1, i.e. Radhakrishna Suyal, is also supported by the then Deputy Regional Inspector of the Post-office in question, i.e. namely Mr. Surendra Singh Negi, who appeared in the witness box as PW2, and he has supported his report submitted as ka8 to the effect that the allegation leveled against the revisionist, which was ultimately found on an investigation, to be settled and proved against the revisionist to the effect that he was indulged in usurpation of the money of the account holders and consequently after considering the statement recorded by the prosecution witnesses, as well as the statement of the accused revisionist also as recorded under Section 313 of Cr.P.C., it was proved by way of evidence that on perusal of the accounts register and if that account statement was considered with the statement of PW1- Radhakrishna Suyal, it was found and proved that there was a manipulation in the entries, as no record of entries was made in relation to the passbooks in which the entries was required to be made and apparently from the evidence on record, it was found that the revisionist was indulged in usurpation of an amount of Rs. 9,776.65/-.

Consequently, on culmination of the proceedings before the Trial Court, the Trial Court by the impugned judgment dated 11.08.2008 had held that the revisionist was responsible and held proved for the commission of the offence under Section 409 of IPC and, consequently, he has been convicted to undergo a rigorous imprisonment for a period of one year and a penalty of Rs. 2,000/-was imposed against him.

Being aggrieved against the said judgment of conviction, the present revisionist has preferred an appeal being Criminal Appeal No. 14 of 2008 'Pateram vs. State of Uttarakhand'. The Appellate Court while judicially scrutinizing the judgment of conviction against the revisionist for commission of an offence under Section 409 of IPC had recorded a finding in paragraph-7 of the Appellate Court's judgment that the order of conviction suffers from the vices to the effect that the evidence as well as the statement of the witnesses was not rightfully appreciated by the learned Trial Court while passing the order of conviction as against the revisionist on 11.08.2008. On that interpretation given to the Trial Court's judgment of wrongful appreciation of the evidence and the statement of the witnesses, the Appellate Court while considering the impact of the provisions contained under Section 311 of Cr.P.C., wherein, it deals with the powers vested that with the Appellate Court has remitted the matter back to the Trial Court for examining the witnesses and reconsidering the documents on record the Appellate Court felt that the matter requires a remand for its reconsideration by the Trial Court afresh on the documents produced on record and consideration of the statement of witnesses, which has been recorded during trial.

Based on the guidelines, which has been laid down in the impugned Appellate Court's judgment in its paragraphs 7 and 8, and the reasons which has been assigned by the Appellate Court its shown to the effect that if the records of the postal department is taken into consideration along with the departmental inquiry report, which has been submitted, it was established by the Post Master General, Dehradun, in its departmental enquiry report/order vide his Order No. 17ka/3 to 17ka/6, that during the course of departmental enquiry the accused revisionist was found that he was indulged in the commission of the offence, but the records of the disciplinary enquiry despite the fact that it was on record, yet it was not taken into consideration by the Trial Court in its appropriate manner and if the evidence, which was recorded in the proceedings before the Post Master General, it suffered from a rightful appreciation of evidence in the contents of the departmental report, which has wrongly resulted into the judgment of conviction. Hence, the Appellate Court has remitted the matter back to the Trial Court for its reconsideration by the impugned order dated 20.07.2012.

The argument, which has been extended by the learned counsel for the appellant is to the effect that, whether at all in an appeal preferred by convict against the judgment of conviction, as in the instant case it was preferred by the convict revisionist herein the powers under Section 311 of Cr.P.C. as it has been utilized by the appellate court for the purposes of remitting the matter for its fresh trial and that too in an appeal, which has been preferred by the convict person is permissible or could be used by appellate court. At the most the Appellate Court could have either considered the propriety of the order of conviction and could have taken a decision on the appeal on merits instead of remitting the matter by invoking the provisions contained under Section 311 of Cr.P.C. because the power of appellate court, which is the last court of appreciation of evidence and fact is extensive enough to have considered the impact of the departmental enquiry if at all it was necessary, itself instead of remitting the matter for fresh trial. Section 311 of Cr.P.C. is quoted hereunder:

"311. Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or. recall and re- examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case."

On a question being posed to the Government Advocate also, as to upto what extent the powers under Section 311 of Cr.P.C. could be exercised and extended by the Appellate Court and that too in an appeal of the convict person? As to whether it could be remanded for its retrial merely on account of the fact that the evidence of the witnesses and that the documentary evidence, which was there before the Trial Court had been skipped to be considered or it has been wrongly considered, whether it has been rightly appreciated or not, this Court after hearing the learned counsel for the parties is of the view that in an appeal preferred by the convict person against the judgment of conviction, there could not have been a remand before the Trial Court for its fresh reappreciation, more particularly, when there is no appeal by the prosecution itself on the ground that the conviction order suffers the vices of wrongful appreciation of the evidences or the statement recorded by way of witnesses before the court below, which has resulted into lesser imposition of sentence.

If the scrutiny of the provisions contained under Section 311 of Cr.P.C. is taken into consideration, it is the prerogative of the Court that any stage of an enquiry or trial or other proceedings, which are held before the court concerned as per the provisions contemplated under the code, summons may be issued to any person to appear as a witness to be examined for the purposes of elucidating the controversy in question and in order to enable the court to arrive at a logical conclusion as per the provisions contained under Section 311 of Cr.P.C, the invocation of its power could be made at any stage of the proceedings and the precaution which has taken by the legislature is that the stage of the proceeding would be irrelevant to curtail the exercise of powers under Section 311 of Cr.P.C.

The basic intention and purpose for calling upon the witness or re-examination of the persons of the witnesses, who have already examined, is to enable the court to arrive at a logical conclusion with regards to the commission of the offence and for the establishment of the innocence of the accused person.

If that be the intention, in that eventuality, the impugned order, which is under challenge herein, is contrary to the intention and purpose for which the legislature has formulated the provisions contained under Section 311 of Cr.P.C. and consequently, for the reasons assigned hereunder it does not meet up the spirit and the purpose of the same. Hence, deserves to the interfered.

Hence, in that view of the matter, the judgment impugned of remand is set aside and the matter is remitted back to the Appellate Court to decide the appeal itself instead of remanding for retrial by the Trial Court exclusively on its own merit after considering the evidence as brought before the Trial Court, as well as the statement of the witnesses itself. Decision on the appeal as a consequence of the remand rendered by this court's judgment would be taken within a period of six months from the date of presentation of certified copy of this order.

The Registry of this Court is directed to intimate the Appellate Court accordingly.

Consequently, the appeal is allowed to that extent and the order of remand is set aside. The criminal appeal is restored to be decided on its own merit by the Appellate Court.