STATE OF GUJARAT vs VISHVAS BRIJESHVAR TYAGI & ORS.

The criminal revision application is at the instance of the original first informant (victim). Whereas the special criminal application under Article 227 of the Constitution of India is at the instance of the State of Gujarat. In both the matters, the challenge is to the legality and validity of the judgment and order passed by the Additional Sessions Judge, Mehsana, dated 9th June 2015, by which the learned Sessions Judge dismissed the Criminal Appeal No.38 of 2013 filed by the victim against the judgment and order of acquittal dated 13th May 2013 passed by the Judicial Magistrate First Class, Bahucharaji in the Criminal Case No.425 of 2008 and also the judgment and order passed by the Additional Sessions Judge, Mehsana dated 9th June 2015 by which the Sessions Judge dismissed the Criminal Appeal No.47 of 2013 filed by the State.

It appears from the materials on record that the revisionist, namely, Manjulika Virendrakumar Tyagi initiated proceedings against her husband and her in-laws for the offence punishable under Sections 498A, 323, 504, 506(2) read with 114 of the Indian Penal Code and Sections 3 and 7 of the Dowry Prohibition Act. The Trial Court, after due appreciation of the evidence on record, acquitted all the three accused of all the charges. The acquittal appeal filed by the victim before the Appellate Court also came to be dismissed. It appears that the State of Gujarat also preferred an acquittal appeal against the judgment and order of acquittal passed by the Trial Court and the same came to be dismissed.

In such circumstances referred to above, both, the original first informant as well as the State of Gujarat are here before this Court with their respective petitions.

Mr. Devnani, the learned Additional Public Prosecutor appearing for the State took me through the evidence on record. Mr. Devnani, the learned A.P.P. with his usual fairness pointed out that the Trial Court as well as the Appellate Court, after due appreciation of the evidence on record, has thought fit not to believe the case put up by the prosecution. The learned A.P.P. very fairly pointed out that both the Courts, after due appreciation of the evidence on record, has reached to the conclusion that the prosecution has not been able to prove its case beyond reasonable doubt so far as the offence punishable under Sections 498A and 323 of the Indian Penal Code is concerned. Mr. Devnani, the learned A.P.P. also took me through the evidence of the Medical Officer and pointed out that the allegations of assault are also not substantiated. This is a case in which the victim as well as the State are aggrieved by the concurrent findings recorded by the two Courts.

Mr. Archit Jani, the learned counsel appearing for the victim vehemently submitted that the case on hand is one of perverse appreciation of evidence. Mr. Jani, the learned counsel submitted that the material evidence has not been taken into consideration by both the Trial Court as well as by the Appellate Court. In such circumstances, according to Mr. Jani, the case on hand is one of failure of justice. According to Mr. Jani, if that be so, then it would be within the powers of this Court to order a retrial. In support of his submissions, Mr. Jani has placed reliance on the following decisions:

(1) D. Stephens vs. Nasibolla [1951 SCR 284 : AIR 1951 SC 196]

(2) K. Chinnawamy Reddy vs. State of Andhra Pradesh and another [(1963) 3 SCR 412 : AIR 1962 SC 1788]

(3) Daungarshi Madanlal Zunzunwala vs. M/s. Deviprasad Omprakash Bajoria and another [1985 SCC online Bom 322 : 1985 Cri. L.J. 1943]

(4) Ramakant Rai vs. Madan Rai and another [(2003) 12 SCC 395]

(5) Hydru vs. State of Kerala [(2004) 13 SCC 374]

(6) Navnitbhai Harmanbhai Patel vs. State of Gujarat and others [2016(4) GLR 3050]

Mr. A.J. Yagnik, the learned counsel appearing for the accused persons submitted that after proper appreciation of the evidence on record, the Trial Court acquitted all the accused persons and the Appellate Court, after due re-appreciation of the evidence, has thought fit to concur with the view taken by the Trial Court. He would submit that the case on hand is not one where this Court should order a retrial on the ground that the acquittal has led to miscarriage of justice or failure of justice.

Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether any case for retrial is made out.

Ordinarily, in the following categories of cases, this Court, in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India or in exercise of its revisional jurisdiction under Sections 401 read with 397 of the Cr.P.C ., would be justified in ordering a retrial:

[I] Where the Trial Court has no jurisdiction to try the case, but has still acquitted the accused;

[II] Where the Trial Court has wrongly shut out evidence which the prosecution wished to produce;

[III] Where the Appellate Court has wrongly held the evidence which was admitted by the Trial Court to be inadmissible;

[IV] Where the material evidence has been overlooked (either) by the Trial Court or by the Appellate Court; and

[V] Where the acquittal is based on the compounding of the offence which is invalid under the law.

9 Having considered the scope of the power to order retrial, in my view, the same is not warranted in the case in hand. One may not fully agree with the findings recorded by the Trial Court and affirmed by the Appellate Court, but as explained by the Supreme Court that by itself, is not sufficient to order a retrial. Something substantial or more is required to order a retrial in exercise of the writ jurisdiction, supervisory or the revisional jurisdiction. An order for retrial of a criminal case is made in exceptional cases and not unless the Court is satisfied that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance, there had been no real trial or that the prosecutor or an accused was for reasons over which he had no control, prevented from leading or tendering evidence to the charge and in the interests of justice, the Court deems it appropriate, having regard to the

circumstances of the case, that the accused should be put on his trial again.

10 In the overall view of the matter, I am convinced that no case is made out for retrial.

11 In the result, both the petitions fail and are hereby rejected. Rule stands discharged.