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rj high court

Appellate court to order retrial in case of grave error by lower court: Rajasthan High Court

The Appellate court must use the powers granted to it under Section 217 and 368 (b)(i) of the Cr.P.C to reverse conviction or pass an order for the retrial by a court of competent jurisdiction. This remarkable judgement was passed by the principal seat of Rajasthan High Court’s bench consisting of Justice Sandeep Mehta and Justice Kumari Prabha Sharma, that heard a jail petition filed by an accused  in the matter of Salim S/o Abdul Wahid V State,  [D.B. Criminal Appeal No. 65/2019].

The accused had been sentenced by the Trial court under sections 363, 363 A, 365, 370(4) of the IPC as well as Section 23 of the Juvenile Justice Act for the offence of kidnapping children and forcefully making them beg or work in households.

The case came to light when one of the victims, a 9 year old girl went missing and could not be found for 5 years. The victim was handed to the police after she confessed to the owner of the house where she was forcefully employed that she had been kidnapped and made to forcefully beg by the accused.When the accused was sentenced by the Trial Court in 2010, “Trafficking” was not defined under the IPC but it was done later in 2015 through an amendment under section 370 that 370(4) more specifically, in this case. The sentence for trafficking was therefore increased to that of life imprisonment.

The High Court therefore categorically opined, “We feel that no sooner had the child been traced and once she made pertinent allegations of trafficking her against the appellant continuing right upto the year 2015, the police should have applied the graver offence in the report under Section 173 Cr.P.C. i.e. Section 370(4) I.P.C. because by continuing to force the child into begging and as a child labourer, the accused definitely committed the offence of child trafficking as defined in Section 370(4) of the IPC. It appears that the Investigating agency erred on this count and so did the Public Prosecutor as well as the trial court. Neither specific charge under Section 370(4) IPC was framed against the accused-appellant nor the charge was amended to this effect even after the statement of the victim had been recorded on oath.

We are of the firm view that the trial court committed a blunder while framing charge and in failing to amend the charge suitably and without doing so, the appellant has been convicted for the offence under Section 370(4) IPC and has been awarded life imprisonment on that count”.

In light of the sentence passed by the Trial Court and the prayer of the accused to not apply Section 370 of the IPC retrospectively to him, the court held, “the appellate court while hearing an appeal against conviction can reverse the finding of the trial court and order for retrial by a court of competent jurisdiction. We are of the firm view that the facts of the case at hand warrant exercise of the powers conferred to this Court under Section 386 (b) (i) read with Section 217 Cr.P.C. In view of the grave facts noted above, in order to do complete justice to the victim as well as the accused, we feel it imperative to direct a retrial of the accused by exercising these powers conferred upon the appellate court by Section 386 Cr.P.C.

Accordingly, we hereby set aside the impugned judgment dated 13.12.2018 passed by the learned Additional Sessions Judge”

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