STATE OF GUJARAT versus BHALCHANDRA LAXMISHANKAR DAVE on 2 February 2021

1. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 12.01.2015 passed by the High Court of Gujarat inCriminal Appeal No.92 of 2003 by which the High Court has acquittedthe respondent herein – original accused for the offences under Section7 read with Sections 13(1) & 13(2) of the Prevention of Corruption Act(hereinafter referred to as ‘the Act’) by quashing and setting aside thejudgment and order of conviction passed by the Learned Special Judge,Bharuch, the State of Gujarat has preferred the present appeal.

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3. The respondent herein – original accused (hereinafter referredto as ‘the accused’) who was working as Assistant Director in ITI,Gandhi Nagar was charged for the offences punishable under Section 7read with Sections 13(1) and 13(2) of the Act.

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3.1 The Learned Special Judge, Bharuch after full-fledged trialBand appreciation of the entire evidence on record and by detailed judgmentand order convicted the accused under Section 7 read with Sections13(1) and 13(2) of the Act. The Learned Special Judge held the accusedguilty and convicted the accused for the aforesaid offences and imposedthe sentence of 5 years imprisonment and with fine of Rs.10,000/-.

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3.2 Feeling aggrieved and dissatisfied with the judgment and orderof conviction and sentence passed by the Learned Special Judge in SpecialA.C.B. Case No.14/2000 - the accused preferred appeal before theHigh Court being Criminal Appeal No.92 of 2003. By the impugnedjudgment and order, the High Court without any detailed re-appreciationDof the entire evidence on record, has acquitted the accused for theoffences for which he was convicted.

4. Feeling aggrieved and dissatisfied with the impugned judgmentand order of acquittal passed by the High Court, the State of Gujarat haspreferred the present appeal.

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5. We have heard Ms. Deepanwita Priyanka, Learned Advocateappearing on behalf of State of Gujarat and Shri J.S. Attri, LearnedSenior Advocate and Shri Haresh Raichura, Learned Advocate appearingon behalf of respondent – accused.

F5.1. Number of submissions have been made by learned counselsof the respective parties. However, for the reasons stated herein below,we propose to remand the matter to the High Court, any observationmade by this Court may affect either the prosecution or the defence, werefrain from dealing with the submissions made by the Learned counselsappearing on behalf of the respective parties on merits.G

6. We have gone through the detailed judgment and order ofconviction passed by the Learned Trial Court and also the evidence onrecord laid down by the prosecution as well as the defence. We haveperused the impugned judgment and order of acquittal passed by theHigh Court to ascertain whether the High Court has conformed to theH

principles while exercising in the criminal appeal against the judgmentand order of conviction. We find that the High Court has not strictlyproceeded in the manner in which High Court ought to have while dealingwith the appeal against the order of conviction. On perusal of the impugnedjudgment 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 indetail while acquitting the respondent – accused. The High Court hasonly made general observations on the depositions of the witnessesexamined. However, there is no re-appreciation of the entire evidenceon record in detail, which ought to have been done by the High Courtwhile dealing with the judgment and order of conviction passed by theLearned Trial Court.

6.1 The High Court ought to have appreciated that it was dealingwith the first appeal against the order of conviction passed by the Learnedtrial Court. Being First Appellate Court, the High Court was required tore-appreciate the entire evidence on record and also the reasoning givenby the Learned trial Court while convicting the accused.Non-re-appreciation of the evidence on record may affect the case ofeither the prosecution or even the accused. Being the First AppellateCourt the High Court ought to have re-appreciated the entire evidenceon record without any limitation, which might be there while dealing withan appeal against the order of acquittal passed by the Learned TrialCourt.

6.2 An Appellate Court while dealing with an appeal againstacquittal passed by the Learned trial Court, is required to bear in mindthat in case of acquittal there is double presumption in favour of theaccused. Firstly, the presumption of innocence is available to him underthe fundamental principle of criminal jurisprudence that every personshall be presumed to be innocent unless he is proved guilty by a competentcourt of law. Secondly, the accused having secured his acquittal, thepresumption of his innocence is further reinforced, reaffirmed andstrengthened by the trial Court. Therefore, while dealing with the casesof acquittal by the trial Court, the Appellate Court would have certainlimitations. Even in the case of acquittal passed by the Learned TrialCourt, 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 theappeal is entertained against the order of acquittal, the High Court is AB

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Aentitled to re-appreciate the entire evidence independently and come toits own conclusion. Ordinarily, the High Court would give due importanceto the opinion of the Sessions Judge if the same were arrived at afterproper appreciation of the evidence. The High Court would be justifiedagainst an acquittal passed by the Learned Trial Court even onre-appreciation of the entire evidence independently and come to itsBown 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 powersof appreciation of evidence and the High Court has to re-appreciate theentire evidence on record being a First Appellate Court. Keeping in mindCthat once the Learned Trial Court has convicted there shall not bepresumption of innocence as would be there in the case of acquittal.

7. On perusal of the impugned judgment and order of acquittalpassed by the High Court, we find that High Court decision is based ontotally erroneous view of law by ignoring the settled legal position. TheDapproach of the High Court in dealing/non-dealing with the evidencewas patently illegal leading to grave miscarriage of justice. Therefore,we are of the firm opinion that the impugned judgment and order passedby the High Court acquitting the respondent – accused without advertingto the reasons given by the Learned trial Court while convicting theEaccused and without re- appreciating the entire evidence on record indetail cannot be sustained and the same deserves to be quashed and setaside. We are of the opinion that therefore matter deserves to be remandedto the High Court to consider and deal with the appeal afresh inaccordance with law and on its own merits keeping in mind theobservations made hereinabove. The High Court ought to haveFappreciated that it was dealing with the offences under the Preventionof Corruption Act which offences are against the society. And thereforethe High Court ought to have been more careful and ought to have gonein detail. We do not approve the manner in which the High Court hasdealt with the appeal.

G8. In view of the above and for the reasons stated hereinaboveand without expressing anything on merits of the case, the present appealis allowed. The impugned judgment and order dated 12.01.2015 in CriminalAppeal No.92 of 2003 passed by the High Court acquitting the accusedfor the offences under the Act for which he was tried is hereby quashedHand 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 accordancewith law and on its own merits bearing in mind the observations madehereinabove. At the cost of repetition we observe that we have notexpressed anything on merits in favour of either prosecution or even theaccused and the High Court to decide and dispose of the appeal on itsown merits as observed hereinabove.

Devika Gujral

Appeal allowed and matter remitted to High Court.

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