RAMESHWAR PRASADversusSTATE OF RAJASTHAN

                        [2009) 3 S.C.R. 1162
                                                                        ...
A                     RAMESHWAR PRASAD                              •
                                 v.
                     STATE OF RAJASTHAN
                (Criminal App19al No. 434 of 2009)
                          MARCH 5, 2009
B
     [DR. ARIJIT PASAYAT, V.S. SIRPURKAR AND ASOK
                  KUMAR GANGULY, JJ.]

        Code of Criminal Procedure, 1973:
c
        s.374 - Appeal against conviction - Appellate court,
  without examining the case on merits, remanding the matter
  to trial court observing that there were lacunae in prosecution
  case - In revision High Court set aside order of remand but
D upheld the conviction - HELD: Matter remitted to High Court
  for decision on merits - Practice and Procedure.

       The appellant, a Branch Manager in Central
  Cooperative Bank, was convicted and sentenced uls 408
  IPC. The appellate court found certain lacunae in the
E prosecution version and remanded the matter for re-
  examination. The High Court in revision petition held that
  order of remand was against the position of law, but
  l!lpheld the conviction. Aggrieved, the accused filed the         f
  appeal.
F
       Allowing the appeal and remitting the matter to the
  High Court, the Court

       HELD: Neither in the appeal before the Sessions
  Judge nor in the revision before the High Court there was
G examination of the case on merits. The appellate court,
  as rightly noted by the High Court, remanded the matter
  to the trial court for consideration of various aspects
  which in essence were to fill the lacunae in the

H                               1162
        RAMESHWAR PRASAD v. STATE OF RAJASTHAN                    1163


-.   prosecution version. The High Court noted that this was              A
     impermissible in law, but restored the conviction and the
     sentence without examining merits of the case. In the
     circumstances, the order of the High Court is set aside
     and the matter is remitted to it for a decision on merits.
     [Para 6] [1164-H; 1165-A, B]                                         B

         CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
     No. 434 of 2009.

         From the Judgment and Order dated 29.5.2007 of the High
     Court of Judicature for Rajasthan at Jaipur in S.B. Criminal Misc.   c
     Appeal No. 854 of 2007.

         S.C. Gupta and Rameshwar Prasad Goyal for the
     Appellant.

,.       Manish Kumar, Ansar Ahmad Chaudhary, Satya Prakash
                                                                          D
     and Promila Matta for the Respondent.

         The Judgment of the Court was delivered by

          DR. ARIJIT PASAYAT, J. 1. Leave granted.                        E
          2. Challenge in this appeal is to the order passed by a
     learned Single Judge of the Rajasthan High Court, Jaipur
'!   Bench dismissing the application filed for recalling/modifying
     the order dated 14.3.2007 passed in Criminal Revision Petition
     No.671 of 2004.                                                      F

         3. Background facts need to be noted in brief.

         The appellant was appointed as the Branch Manager in
     Central Co-operative Bank, Branch Bonli in District Sawai
                                                                          G
     Madhopur. On 25.4.1982 the First Information Report was
     lodged by the S.H.O. of the concerned police station for alleged
     commission of offence punishable under Sections 408 and 462
            '
     of the Indian Penal Code, 1860 (in short the 'IPC').
     Subsequently, cognizance was taken for the allegation relating
                                                                          H
    1164       SUPREME COURT REPORTS                [2009] 3 S.C.R.


A to offence punishable under Section 408 IPC for alleged
  criminal breach of trust of certain amounts. The trial Court by
  order dated 11.2.2003 convicted and sentenced the appellant
  in the aforesaid criminal case. The appellant filed appeal
  against the judgment and order of the trial Court. The first
B Appellate Court however remanded the case for fresh trial
  sta,ting that there were certain lacunae which had to be rectified
  and the matter was to be re-examined. Against the order dated
   16.4.2004 the appellant filed a Criminal Revision before the
  High Court. The High Court quashed and set aside the order
c of remand stating that it was against the settled position of law
  but upheld the judgment of the trial Court. In other words, the
  direction for remand was set aside but there was no
  examination on merits of the various stands taken by the
  appellant. An application was filed for review before the High
  Court stating that while setting aside the direction for remand
D
  the High Court had also dismissed the appeal not examining
  the appeal on merits and upheld the conviction as recorded by
  the trial Court. The application as noted above was dismissed.

        4. In support of the appeal, learned counsel for the
E aiopellant submitted that there is lot of confusion at different
  stages. Firstly, the Appellate Court set aside the order of the
  trial Court and remanded the matter under Section 368(8) of
  the Code of Criminal Procedure, 1973 (in short the 'Code') after      f
  consideration of certain matters which according to the learned
F Sessions Judge were lost sight of by the trial Court. The High
  Court accepted that the order of remand was bad yet did not
  examine the same on merits.

        5. Learned counsel for the respondent-State on the other
    hand supported the judgment.
G
       6. It is to be noted that neither in appeal before the learned
  Sessions Judge nor in the revision before the High Court there
  was no examination of appeal on merits. The first Appellate
  Court as rightly noted by the High Court remanded the matter
H to the trial Court for consideration of various aspects which in
         RAMESHWAR PRASAD v. STATE OF RAJASTHAN                   1165


       essence were to fill the lacunae in the prosecution version. The   A
       High Court noted that this was impermissible in law. Having
       said that the High Court ought to have examined the case of
       the appellant on merits because the same was not done by the
       first Appellate Court. In the circumstances, we set aside the
       impugned order of the High Court and remit the matter to the       B
       High Court for a decision on merits. It is needless to say that
       we have expressed no opinion on the merits of the case.

               7. The appeal is allowed.

       R.P .                                         Appeal allowed.      C




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