The State Of Gujarat vs Bhalchandra Laxmishankar Dave on 2 February, 2021


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Supreme Court of India

The State Of Gujarat vs Bhalchandra Laxmishankar Dave on 2 February, 2021

Author: Hon’Ble Dr. Chandrachud

Bench: Hon’Ble Dr. Chandrachud, M.R. Shah

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                                                                              REPORTABLE

                                      IN THE SUPREME COURT OF INDIA

                                    CRIMINAL APPELLATE JURISDICTION

                                      CRIMINAL APPEAL NO.99 OF 2021
                                   [Arising out of SLP (Crl.) No. 9105 of 2015]


          State of Gujarat                                                   .. Appellant

                                                      Versus

          Bhalchandra Laxmishankar Dave                                      .. Respondent



                                                JUDGMENT

M. R. Shah, J.

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
Signature Not Verified

Digitally signed by
Chetan Kumar
Date: 2021.02.02

offences under Section 7 read with Sections 13(1) & 13(2) of the
17:18:18 IST
Reason:

Prevention of Corruption Act (hereinafter referred to as ‘the Act’) by
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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.

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 full­fledged trial

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/­.

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
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impugned judgment and order, the High Court without any detailed

re­appreciation 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.

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.

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.

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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 principles while exercising in the criminal appeal

against the judgment 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 re­appreciation of the entire evidence on record in 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 re­appreciation 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.

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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 re­appreciate the entire evidence on record and also

the reasoning given by the Learned trial Court while convicting the

accused. Non­re­appreciation 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 re­appreciated

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 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 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
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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 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 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”. 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 re­appreciate the entire evidence on record

being a First Appellate Court. Keeping in mind that once the
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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 approach of the High Court in dealing/non­dealing

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 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
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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.

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 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.

At the cost of repetition we observe that we have not expressed

anything on merits in favour of either prosecution or even the
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accused and the High Court to decide and dispose of the appeal on

its own merits as observed hereinabove.

.……………………………J.

(ASHOK BHUSHAN)

……………………………J.

(R. SUBHASH REDDY)

……………………………J.

(M. R. SHAH)

New Delhi,
February 2, 2021.



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