Interim Order 6

Order Details: COPY OF ORDER
Pdf Text: -1-
CA 69/2023
VARESHVAR MEHTA Vs. AMIT GADHIA
06.10.2023
Pr.: Appellant in person with Sh. Rajeev Kumar Bhola,
Ld. Counsel.
Respondent in person with Sh. S.S. Gulati, Ld. Counsel.
1. Perusal of record reflects that appellant has come to this
Court feeling aggrieved with the impugned judgment and order
on sentence dated 27.02.2023 and 23.03.2023 respectively and
the matter is at the stage of arguments on the present appeal.
2. Today, Ld. Counsel for the appellant has moved an
application under Section 386 Cr.P.C. seeking re-trial of the
complaint case no. 52348/2016 titled as Amit Gandhia vs.
Vareshwar Kumar Mehta.
3. Heard on the present application.
4. It is argued by Ld. Counsel for the appellant that
appellant got convicted and sentenced in the complaint case only
on account of unfair, unethical and unprofessional conduct and
approach of his previous counsel namely Sh. Dinesh Yadav,
D/1189/2007. As appellant remained deprived of fair trial in the
complaint case hence, seeking re-trial of the said case before the
Ld. Trial Court under Section 386 Cr.P.C.
5. Section 386 in The Code Of Criminal Procedure, 1973 is
reproduced as under for ready reference :
“
386. Power of the Appellate Court. After perusing such
record and hearing the appellant or his pleader, if he
appears, and the Public Prosecutor if he appears, and in
case of an appeal under section 377 or section 378, the
-- 1 of 3 --
-2-
accused, if he appears, the Appellate Court may, if it
considers that there is no sufficient ground for interfering,
dismiss the appeal, or may-
(a) in an appeal from an order or acquittal, reverse such
order and direct that further inquiry be made, or that the
accused be re- tried or committed for trial, as the case may
be, or find him guilty and pass sentence on him according
to law;
(b) in an appeal from a conviction-
(i) reverse the finding and sentence and acquit or discharge
the accused, or order him to be re-tried by a Court of
competent jurisdiction subordinate to such Appellate Court
or committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or
the extent, or the nature and extent, of the sentence, but not
so as to enhance the Same;
(c) in an appeal for enhancement of sentence-
(i) reverse the finding and sentence and acquit or discharge
the accused or order him to be re- tried by a Court
competent to try the offence, or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or
the extent, or the nature and extent, of the sentence, so as to
enhance or reduce the same;
(d) in an appeal from any other order, alter or reverse such
order;
(e) make any amendment or any consequential or incidental
order that may be just or proper;
Provided that the sentence shall not be enhanced unless the
accused has had an opportunity of showing cause against
such enhancement: Provided further that the Appellate
Court shall not inflict greater punishment for the offence
which in its opinion the accused has committed, than might
-- 2 of 3 --
-3-
have been inflicted for that offence by the Court passing the
order or sentence under appeal.”
6. Perusal of the Section 386 Cr.P.C. reflects that only
Appellate Court has power to exercise powers under Section 386
Cr.P.C. Appellant has no remedy to seek re-trial by invoking this
provision. Considering the same, I am of the opinion that
present application is not maintainable, hence, dismissed
subject to cost of Rs.2000/- to be paid by the appellant to
the respondent on the next date of hearing.
7. At this stage, Ld. Counsel for appellant seeks pass over
on the ground that main counsel would appear at 12.00 noon for
arguments on the present application.
8. Since the present application has no merit and has already
been dismissed, there is no reason for pass over till 12.00 noon.
As before submitting argument on the application, it was not
stated or informed by the counsel appearing on behalf of
appellant, that he is not the main counsel. Only when the
application has been dismissed by Court, he has stated that the
matter may be passed over, as Ld. Counsel for appellant will
argue the matter. Finding no reason for passing over the matter,
request is declined.
Put up for argument on the present appeal on
03.11.2023. Last and final opportunity is granted to the
appellant to argue on the present appeal.
(Shail Jain)
Principal District & Sessions Judge,
East District, KKD Courts, Delhi.
06.10.2023 (pm)
-- 3 of 3 --