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 6 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.

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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

J U D G M E N T

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

offences under Section 7 read with Sections 13(1) & 13(2) of the

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 reappreciating   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.