Issac @ Kishor vs Ronald Cheriyan and Ors.

Court

Supreme Court of India

Date

23 January 2018

Case No.

Criminal Appeal No. 165 of 2018

Result

Dismissed

Bench

Ranjan Gogoi, R. Banumathi

Citation

[2018] 1 S.C.R. 217 : 2018 INSC 48

Headnote

Code of Criminal Procedure, 1973 – s.386(a) – Powers of Appellate Court – Robbery – Murder of widow – Appellant-accused no.1, who was living with deceased for helping her in agricultural work, was arrested – Appellant gave disclosure statement on the basis of which accused no.2 was also arrested – Charge sheet filed u/ss. 302, 394 r/w. 34, IPC – Trial court convicted accused no.2 u/ss. 302 and 394, IPC however, acquitted the appellant-accused no.1 – Revision petition by son of the deceased challenging acquittal of appellant – High Court remitted the matter back to the trial court for re-trial – Propriety of – Held: Under s.386(a), the Court may reverse the order of acquittal and direct further enquiry or that the accused may be re-tried or may find him guilty and pass sentence on him according to law – Re-trial cannot be ordered when there is a mere irregularity or where it does not cause any prejudice – Power to order re-trial should be exercised only in exceptional cases – In the present case, the High Court found that even though the trial court framed an issue on the point of sharing of common intention of accused nos. 1 and 2 in committing the offence, the omission to frame charges u/s.34 IPC materially affected the trial – Discretion exercised by High Court u/s.386(a) directing re-trial cannot be said to be erroneous warranting interference – Trial court to proceed with the matter as per the directions of High Court and dispose of the matter as expeditiously as possible.

K. Chinnaswamy Ready v. State of Andhra Pradesh and Another AIR 1962 SC 1788 : [1963] SCR 412 – relied on.

Mahendra Pratap Singh v. Sarju Singh and Another AIR 1968 SC 707 : [1968] SCR 287; Matukdhari Singh and others v. Janardan Prasad AIR 1966 SC 356 : [1966] SCR 255; Abinash Chandra Bose v. Bimal

Krishna Sen and Another AIR 1963 SC 316 : [1963] SCR 564; Rajeshwar Prasad Misra v. State of West Bengal and Another AIR 1965 SC 1887 : [1966] SCR

178 – referred to.

The Order of the Court was delivered by R. BANUMATHI, J. 1. Leave granted. 2. This appeal arises out of the judgment dated 25.07.2012 passed by Kerala High Court at Ernakulam allowing Criminal Revision Petition No.3413 of 2008 preferred by respondent no.1 herein thereby setting aside the acquittal of the appellant-accused no.1 for the offences punishable under Section 302 IPC and Section 394 IPC read with Section 34 IPC and further remitting the matter back to the trial Court for retrial. 3. Briefly stated case of the prosecution is that, the deceasedBrijitha was sixty three years old wido

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