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HC acquitting respondent without reappreciation of evidence on record cannot be sustained: SC

State of Gujarat v. Bhalchandra Laxmishankar Dave.

Criminal Appeal No. 99 of 2021 (Arising out of Special Leave Petition (Crl.) No.9105 of 2015)

Counsel for the Appellant: Learned senior counsel Ms. Deepanwita Priyanka

Counsel for the Respondents: Learned Senior Counsel Shri J.S. Attri, Learned senior counsel Shri Haresh Raichura

The Hon’ble Supreme Court consisting of judges Justice Ashok Bhushan, Justice R. subhash Reddy and justice M.R Shah, held that the High court has an onus of re appreciating the entire evidence on record and accordingly, acquittal of a respondent without re appreciating by a High Court cannot be deemed valid and henceforth, cannot be sustained.

Bhalchandra Laxmishankar Dave (Hereinafter referred as ‘Respondent’) was working as an Assistant Director in ITI, Gandhinagar, Gujarat was charged for the offences related to corruption whilst working as an assistant director. He was booked under section 7 read with sections 13(1) & 13(2) of the prevention of corruption act, 1988 (Hereinafter referred as ‘Act’).

The order by the Trial Court of Bharuch in the year 2000 convicted the respondent under section 7 read with section 13(1) & 13(2) of the act. The Learned Special Judge imposed the sentence of 5 years imprisonment with fine of Rs.10,000/­.to the respondent. Criminal Appeal no.92 of 2003 was filed by the respondent against the order of the trial court. In the appeal the order of the trial court was set aside by the High Court of Gujarat vide its order dated 12.01.2015 according to which the respondent for the offences which he was convicted by the trial court was acquitted. It is against this order the present appeal is preferred.

The submissions of learned counsel of respective parties were made before this court and have been heard by this court. After hearing these submissions, the court held that any observation made by this court may affect either the prosecution or the defence, so we refrain from dealing with the submissions of the respective counsels (Para 5). Therefore, ordered the matter to be remanded before the high court of Gujarat only.

The court then held that the High Court of Gujarat has not strictly proceeded in the manner in which High Court ought to have while dealing with the appeal against the order of conviction, which was passed vide an order of the Trial Court of Bharuch.

In the above regard, the court further held that the order of high court was erroneous because the high court did not re­appreciate the entire evidence on record in detail while acquitting the respondent – accused, which was in contravention to what generally high courts do when a criminal appeal is considered by them. Instead, the high court of Gujarat high court only made general observations on the depositions of the witnesses examined, which cannot be considered re- appreciation as far as the entire evidence is concerned.

The court further held that re-appreciation of the entire evidence becomes all the way more indispensable and important, as the High Court of Bharuch in the present case was the first appellate court, so it had the onus to re­appreciate the entire evidence on record without any limitation, as, non re-appreciation of the evidence on record may affect the case of either the prosecution or even the accused.

The court then held that when the trial court passes an order which acquits the accused, the appellant court would have certain limitations, as there would be a case of double presumption of innocence, one because of general rule of law and one because of the order of trial court/ Subordinate court. In the present case, the first appellant court i.e. high court of Gujarat, had no limitations because the trial court according to its order passed in 2000, convicted the respondent, therefore, the high court of Gujarat should have re-appreciated the entire evidence.

In the above regard, the court referred to the judgement Umedbhai Jadavbhai vs. The

State of Gujarat, and this court observed the following-

Once the appeal is entertained against the order of acquittal, the High Court is entitled to re­appreciate 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 re­appreciation of the entire evidence independently and come to its own conclusion that acquittal is perverse and manifestly erroneous”(Para 6).

The court further held that High Court decision is based on totally erroneous view of law by ignoring the settled legal position that re-appreciation of entire evidence shall be done by the first appellate court when there are no limitations.

Concluding, the court held-

The High Court ought to have 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. So, the detailed conclusion in the present case is-

“The impugned judgment and order dated12.01.2015 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 and set aside. The appeal before the High Court is restored to its original file. The High Court to decide and dispose of the appeal in accordance with law and on its own merits bearing in mind the observations made hereinabove.” (Para 8.1).

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 (Para 8.2).

Yajush Tripathi



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