STATE OF GUJARATversusBHALCHANDRA LAXMISHANKAR DAVE

                          [2021] 1 S.C.R. 453                            453


                       STATE OF GUJARAT                                  A
                                  v.
          BHALCHANDRA LAXMISHANKAR DAVE
                  (Criminal Appeal No. 99 of 2021)
                       FEBRUARY 02, 2021                                 B
       [ASHOK BHUSHAN, R. SUBHASH REDDY AND
                        M. R. SHAH, JJ.]
      Appeal: Appeal against acquittal – Scope of interference –
Conviction of respondent-accused by trial court u/s.7 r/w ss.13(1)
and (2) of Prevention of Corruption Act – Acquittal by High Court        C
– On State’s appeal, held: High Court made general observations
on the depositions of the witnesses examined – However, there was
no re-appreciation of the entire evidence on record in detail, which
ought to have been done by High Court while dealing with order of
conviction passed by trial court – High Court ought to have              D
appreciated that it was dealing with first appeal against order of
conviction passed by trial court – Being the First Appellate Court,
High Court ought to have re-appreciated the entire evidence on
record without any limitation, which might be there while dealing
with an appeal against the order of acquittal passed by trial court
– High Court was dealing with the offences under the Prevention          E
of Corruption Act which offences are against the society and,
therefore, High Court ought to have been more careful and have
gone in detail – Matter remitted to High Court for consideration
afresh in accordance with law.
       Appeal: Power of High Court to deal with appeal against           F
conviction and appeal against acquittal – Distinction between –
Held: An Appellate Court while dealing with an appeal against
acquittal passed by trial court is required to bear in mind that in
case of acquittal there is double presumption in favour of the accused
– Firstly, the presumption of innocence is available to him under
                                                                         G
the fundamental principle of criminal jurisprudence that every
person shall be presumed to be innocent unless he is proved guilty
by a competent court of law – Secondly, the accused having secured
his acquittal, the presumption of his innocence is further reinforced,
reaffirmed and strengthened by trial court – Therefore, while dealing
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                                 453
454            SUPREME COURT REPORTS                      [2021] 1 S.C.R.


A     with the cases of acquittal by trial court, the Appellate Court would
      have certain limitations – However, so far as appeal against order
      of conviction is concerned, there are no such restrictions and the
      Court of appeal has wide powers of appreciation of evidence and
      the High Court to re-appreciate the entire evidence on record being
      a First Appellate Court – Keeping in mind that once trial court has
B
      convicted there shall not be presumption of innocence as would be
      there in the case of acquittal.
           Allowing the appeal and remitting the matter to High Court,
      the Court
C            HELD: 1. The High Court has not strictly proceeded in
      the manner in which High Court ought to have while dealing with
      the appeal against the order of conviction. The High Court ought
      to have appreciated that it was dealing with the first appeal against
      the order of conviction passed by the trial Court. Being First
      Appellate Court, the High Court was required to re-appreciate
D     the entire evidence on record and also the reasoning given by
      the trial Court while convicting the accused. Non-re-appreciation
      of the evidence on record may affect the case of either the
      prosecution or even the accused. [Paras 6, 6.1][457-A-B, C-D]
            2. An Appellate Court while dealing with an appeal against
E     acquittal passed by the trial Court, is required to bear in mind
      that in case of acquittal there is double presumption in favour of
      the accused. However, so far as the appeal against the order of
      conviction is concerned, there are no such restrictions and the
      Court of appeal has wide powers of appreciation of evidence and
F     the High Court has to re-appreciate the entire evidence on record
      being a First Appellate Court. Keeping in mind that once the
      Trial Court has convicted there shall not be presumption of
      innocence as would be there in the case of acquittal. [Para
      6.2][457-E-F; 458-B-C]

G           Umedbhai Jadavbhai v. The State of Gujarat (1978) 1
            SCC : [1978] 2 SCR 471 – referred to.
            3. Perusal of the impugned judgment and order of acquittal
      passed by the High Court, showed that High Court decision was
      based on totally erroneous view of law by ignoring the settled
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 STATE OF GUJARAT v. BHALCHANDRA LAXMISHANKAR                              455
                       DAVE

legal position. The approach of the High Court in dealing/non-             A
dealing with the evidence was patently illegal leading to grave
miscarriage of justice. Therefore, the impugned judgment and
order passed by the High Court acquitting the respondent-
accused without adverting to the reasons given by the trial Court
while convicting the accused and without re-appreciating the
                                                                           B
entire evidence on record in detail cannot be sustained and the
same deserves to be quashed and set aside. Therefore, matter
deserves to be remanded to the High Court to consider and deal
with the appeal afresh in accordance with law and on its own
merits. The High Court ought to have appreciated that it was
dealing with the offences under the Prevention of Corruption Act           C
which offences are against the society and therefore the High
Court ought to have been more careful and ought to have gone
in detail. [Para 7][458-D-F]
                          Case Law Reference
[1978] 2 SCR 471                 referred to.             Para 6           D

      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 99 of 2021.
      From the Judgment and Order dated 12.01.2015 of the High Court
of Gujarat at Ahmedabad in Criminal Appeal No. 92 of 2003.                 E
      J. S. Attri, Sr. Adv., Aniruddha P. Mayee, Haresh Raichura, Saroj
Raichura, Kalp Raichura, Ram Bhaduria, Advs. for the appearing parties.
      The Judgment of the Court was delivered by
      M. R. SHAH, J.
                                                                           F
      1. Leave granted.
       2. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 12.01.2015 passed by the High Court of Gujarat in
Criminal Appeal No.92 of 2003 by which the High Court has acquitted
the respondent herein – original accused for the offences under Section    G
7 read with Sections 13(1) & 13(2) of the Prevention of Corruption Act
(hereinafter referred to as ‘the Act’) by quashing and setting aside the
judgment and order of conviction passed by the Learned Special Judge,
Bharuch, the State of Gujarat has preferred the present appeal.

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456            SUPREME COURT REPORTS                          [2021] 1 S.C.R.


A            3. The respondent herein – original accused (hereinafter referred
      to as ‘the accused’) who was working as Assistant Director in ITI,
      Gandhi Nagar was charged for the offences punishable under Section 7
      read with Sections 13(1) and 13(2) of the Act.
             3.1 The Learned Special Judge, Bharuch after full-fledged trial
B     and appreciation of the entire evidence on record and by detailed judgment
      and order convicted the accused under Section 7 read with Sections
      13(1) and 13(2) of the Act. The Learned Special Judge held the accused
      guilty and convicted the accused for the aforesaid offences and imposed
      the sentence of 5 years imprisonment and with fine of Rs.10,000/-.
C           3.2 Feeling aggrieved and dissatisfied with the judgment and order
      of conviction and sentence passed by the Learned Special Judge in Special
      A.C.B. Case No.14/2000 - the accused preferred appeal before the
      High Court being Criminal Appeal No.92 of 2003. By the impugned
      judgment and order, the High Court without any detailed re-appreciation
D     of the entire evidence on record, has acquitted the accused for the
      offences for which he was convicted.
            4. Feeling aggrieved and dissatisfied with the impugned judgment
      and order of acquittal passed by the High Court, the State of Gujarat has
      preferred the present appeal.
E
            5. We have heard Ms. Deepanwita Priyanka, Learned Advocate
      appearing on behalf of State of Gujarat and Shri J.S. Attri, Learned
      Senior Advocate and Shri Haresh Raichura, Learned Advocate appearing
      on behalf of respondent – accused.

F            5.1. Number of submissions have been made by learned counsels
      of the respective parties. However, for the reasons stated herein below,
      we propose to remand the matter to the High Court, any observation
      made by this Court may affect either the prosecution or the defence, we
      refrain from dealing with the submissions made by the Learned counsels
      appearing on behalf of the respective parties on merits.
G
            6. We have gone through the detailed judgment and order of
      conviction passed by the Learned Trial Court and also the evidence on
      record laid down by the prosecution as well as the defence. We have
      perused the impugned judgment and order of acquittal passed by the
      High Court to ascertain whether the High Court has conformed to the
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 STATE OF GUJARAT v. BHALCHANDRA LAXMISHANKAR                                 457
               DAVE [M. R. SHAH, J.]

principles while exercising in the criminal appeal against the judgment       A
and order of conviction. We find that the High Court has not strictly
proceeded in the manner in which High Court ought to have while dealing
with the appeal against the order of conviction. On perusal of the impugned
judgment and order of acquittal passed by the High Court, we find that,
as such, there is no re-appreciation of the entire evidence on record in
                                                                              B
detail while acquitting the respondent – accused. The High Court has
only made general observations on the depositions of the witnesses
examined. However, there is no re-appreciation of the entire evidence
on record in detail, which ought to have been done by the High Court
while dealing with the judgment and order of conviction passed by the
Learned Trial Court.                                                          C
       6.1 The High Court ought to have appreciated that it was dealing
with the first appeal against the order of conviction passed by the Learned
trial Court. Being First Appellate Court, the High Court was required to
re-appreciate the entire evidence on record and also the reasoning given
by the Learned trial Court while convicting the accused.                      D
Non-re-appreciation of the evidence on record may affect the case of
either the prosecution or even the accused. Being the First Appellate
Court the High Court ought to have re-appreciated the entire evidence
on record without any limitation, which might be there while dealing with
an appeal against the order of acquittal passed by the Learned Trial          E
Court.
       6.2 An Appellate Court while dealing with an appeal against
acquittal passed by the Learned trial Court, is required to bear in mind
that in case of acquittal there is double presumption in favour of the
accused. Firstly, the presumption of innocence is available to him under      F
the fundamental principle of criminal jurisprudence that every person
shall be presumed to be innocent unless he is proved guilty by a competent
court of law. Secondly, the accused having secured his acquittal, the
presumption of his innocence is further reinforced, reaffirmed and
strengthened by the trial Court. Therefore, while dealing with the cases
of acquittal by the trial Court, the Appellate Court would have certain       G
limitations. Even in the case of acquittal passed by the Learned Trial
Court, in the case of Umedbhai Jadavbhai vs. The State of Gujarat,
(1978) 1 SCC 228, it is observed and held by this Court that “Once the
appeal is entertained against the order of acquittal, the High Court is
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458            SUPREME COURT REPORTS                           [2021] 1 S.C.R.


A     entitled to re-appreciate the entire evidence independently and come to
      its own conclusion. Ordinarily, the High Court would give due importance
      to the opinion of the Sessions Judge if the same were arrived at after
      proper appreciation of the evidence. The High Court would be justified
      against an acquittal passed by the Learned Trial Court even on
      re-appreciation of the entire evidence independently and come to its
B
      own conclusion that acquittal is perverse and manifestly erroneous”.
      However, so far as the appeal against the order of conviction is concerned,
      there are no such restrictions and the Court of appeal has wide powers
      of appreciation of evidence and the High Court has to re-appreciate the
      entire evidence on record being a First Appellate Court. Keeping in mind
C     that once the Learned Trial Court has convicted there shall not be
      presumption of innocence as would be there in the case of acquittal.
             7. On perusal of the impugned judgment and order of acquittal
      passed by the High Court, we find that High Court decision is based on
      totally erroneous view of law by ignoring the settled legal position. The
D     approach of the High Court in dealing/non-dealing with the evidence
      was patently illegal leading to grave miscarriage of justice. Therefore,
      we are of the firm opinion that the impugned judgment and order passed
      by the High Court acquitting the respondent – accused without adverting
      to the reasons given by the Learned trial Court while convicting the
E     accused and without re- appreciating the entire evidence on record in
      detail cannot be sustained and the same deserves to be quashed and set
      aside. We are of the opinion that therefore matter deserves to be remanded
      to the High Court to consider and deal with the appeal afresh in
      accordance with law and on its own merits keeping in mind the
      observations made hereinabove. The High Court ought to have
F     appreciated that it was dealing with the offences under the Prevention
      of Corruption Act which offences are against the society. And therefore
      the High Court ought to have been more careful and ought to have gone
      in detail. We do not approve the manner in which the High Court has
      dealt with the appeal.
G             8. In view of the above and for the reasons stated hereinabove
      and without expressing anything on merits of the case, the present appeal
      is allowed. The impugned judgment and order dated 12.01.2015 in Criminal
      Appeal No.92 of 2003 passed by the High Court acquitting the accused
      for the offences under the Act for which he was tried is hereby quashed
H     and set aside. The appeal before the High Court is restored to its original
  STATE OF GUJARAT v. BHALCHANDRA LAXMISHANKAR                                     459
                DAVE [M. R. SHAH, J.]

file. The High Court to decide and dispose of the appeal in accordance             A
with law and on its own merits bearing in mind the observations made
hereinabove. At the cost of repetition we observe that we have not
expressed anything on merits in favour of either prosecution or even the
accused and the High Court to decide and dispose of the appeal on its
own merits as observed hereinabove.
                                                                                   B
Devika Gujral                  Appeal allowed and matter remitted to High Court.




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