The power of the Appellate Court to set aside the conviction and sentence passed by the trial Court and remand the case for framing of required charge and to conclude the case as per law, based on the principles established in the case of Nasib Singh v State of Punjab And Anr. and the provisions of S.464 and S.386 of Cr.P.C.

ORDER

1. This criminal revision u/S 397 r/w 401 of the Code Of Criminal Procedure, 1973 has been preferred by the petitioners/accused persons being aggrieved by the judgment dated 09.05.2023 passed by the Ist Additional Sessions Judge, West Nimar, Distt - Mandleshwar, in Cri. Appeal No.152/2021, whereby the learned Additional Sessions Judge has allowed the appeal and has set aside conviction and sentence and has remanded the case to frame appropriate charge and for the disposal of the case as per law. Appeal arising out of judgment dated 29.10.2021 in criminal case No.195/2014, wherein the learned trial Court had convicted the petitioners u/S 323 r/w 34 of IPC and sentenced to undergo imprisonment till the rising of the court and fine of Rs. 4,000/-(four counts) to each with default stipulation.

2. Facts of the case, in brief are that on 30.06.2014, at around 08:40 PM, the complainant Bhuwani Ram lodged a report stating that 3 months before the incident, accused Dinesh had given his boat to the complainant to row. On 30.06.2014, at around 08:15 PM, accused Dinesh had demanded back his boat on which accused Dinesh had abused him verbally and when the complainant asked to not abuse, then the accused Dinesh and his son co-accused Nagesh had given blow by means of lathi to the complainant. Wife of the complainant Rukmani and sons Vishnu and Mukesh came to intervene, then the petitioners/accused persons had given blows to them as well. In the act, complainant Bhuwani Ram, Rukmani, Vishnu and Mukesh had sustained injuries in distinct body parts. An FIR (Ex.P-1) has been lodged against the petitioners. After completion of investigation, charge sheet has been filed.

3. The learned trial Court after hearing the parties had framed charge u/S 294, 323 in alternate 323 r/w 34 and 506 Part- II of IPC. After completion of prosecution witnesses, the petitioners/accused persons were examined u/S 313 of CrPC. The learned trial Court heard both the parties and passed the judgment of conviction and order of sentence dated 29.10.2021. Thereby, the learned trial Court has convicted the petitioners u/S 323 r/w S.34 of IPC only but has sentenced u/S 323 r/w S.34 of IPC (four counts) as discussed above. The petitioners/accused persons being aggrieved by the impugned judgment had filed appeal u/S 374 of Cr.P.C. before the Appellate Court, whereby the learned Appellate Court considered provisions of S.464 of Cr.P.C. and it was found that the trial Court had framed charge u/S 323 r/w 34 of IPC in respect of only injured Vishnu but without framing of charge in respect of Rukmani, Vishnu and Mukesh had convicted and sentenced the petitioners. Thereby, failure of justice has been occasioned and the trial Court has committed legal error. In this situation the learned Appellate Court exercising power as provided u/S 386 of Cr.P.C. remanded back the case to the trial Court with direction that the necessary charge be framed and trial be recommenced from the point immediately after the framing of charge.

4. Learned counsel for the petitioners submits that judgment of the Appellate Court is contrary to law and facts as well as is neither legal nor correct. The Appellate Court did not consider that the learned trial Court sentenced the petitioners u/S 323 r/w 34 of IPC in four counts. It is further submitted that petitioner No.1 is a Government Employee and he is right now a process server in the Barwah Court, Distt. - Khargone and petitioner No.2 Nagesh is professionally an Advocate in the Court of Mandleshwar. The appeal preferred by the petitioners/appellants, therefore, no question will arise for remand back. Therefore, impugned judgment is liable to be set aside. Learned counsel has placed reliance on the case of Nasib Singh V State of Punjab And Anr. [(2022) 2 SCC 89].

5. On the other hand, learned counsel for the respondent/State has supported the impugned and has prayed for rejection of the petition.

6. I have heard learned counsels for the parties and perused