REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.    434         OF 2009 (Arising out of SLP (Crl. ) No. 7861 of 2007)

Rameshwar Prasad …Appellant

Versus

State of Rajasthan …Respondent

J U D G M E N T  

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is  to the order passed by a learned Single

Judge of the Rajasthan High Court, Jaipur Bench dismissing the application

filed for recalling/modifying the order dated 14.3.2007 passed in Criminal

Revision Petition No.671 of 2004.  

3. Background facts need to be noted in brief.  

The appellant was appointed as the Branch Manager in Central Co-

operative Bank, Branch Bonli in District  Sawai Madhopur. On 25.4.1982

the First  Information Report was lodged  by the S.H.O. of the concerned

police station  for alleged commission of offence punishable under Sections

408  and   462  of  the  Indian  Penal  Code,  1860  (in  short  the  ‘IPC’).

Subsequently, cognizance was taken for the allegation relating to offence

punishable under Section 408 IPC for alleged criminal breach of trust  of

certain amounts.  The trial Court by order dated 11.2.2003  convicted and

sentenced the appellant  in the aforesaid criminal case. The appellant filed

appeal against the judgment and order of the trial Court. The first Appellate

Court  however  remanded  the  case  for  fresh  trial  stating  that  there  were

certain  lacunae   which  had  to  be rectified  and the  matter  was  to  be  re-

examined. Against the order dated 16.4.2004  the appellant filed a Criminal

Revision before the High Court. The High Court quashed and set aside the

order of remand stating that it was against  the settled position of law but

2

upheld the judgment of the trial Court.  In other words,  the direction for

remand was set aside but there was no examination on merits  of the various

stands taken by the appellant.  An application was filed for review before

the High Court stating that while setting aside the direction for remand the

High  Court  had  also  dismissed  the  appeal  not  examining  the  appeal  on

merits  and  upheld  the  conviction  as  recorded  by  the  trial  Court.   The

application as noted above was dismissed.  

4. In support of the appeal, learned counsel for the appellant submitted

that there is lot of confusion at different stages.  Firstly, the Appellate Court

set aside the order of the trial Court and remanded the matter under Section

368(B) of the Code of Criminal Procedure, 1973 (in short the ‘Code’) after

consideration  of  certain  matters  which  according  to  the  learned  Sessions

Judge were lost sight of by the trial Court. The High Court accepted that the

order of remand was bad yet did not examine the same on merits.  

5. Learned counsel for the respondent-State on the other hand supported

the judgment.  

3

6. It is  to be noted that  neither  in appeal  before the learned Sessions

Judge nor in the revision before the High Court there was no examination of

appeal on merits. The  first Appellate Court as rightly noted by the High

Court remanded the matter to the trial  Court for consideration of various

aspects which in essence were to fill the lacunae in the  prosecution version.

The High Court noted that this was impermissible in law. Having said that

the High Court ought to have examined the case of the appellant on merits

because  the  same  was  not  done  by  the  first  Appellate  Court.  In  the

circumstances, we set aside the impugned order of the High Court and remit

the matter to the High Court for a decision on merits. It is needless to say

that we have expressed no opinion on the merits of the case.  

7. The appeal is allowed.  

…………………………. J.

(Dr. ARIJIT PASAYAT)

……………………….…J. (V.S. SIRPURKAR)

4

………………………….J. (ASOK KUMAR GANGULY)

New Delhi, March 05, 2009   

5