KRISHAN KUMARversusTHE STATE OF RAJASTHAN & ANR.

                         [2018] 10 S.C.R. 869                                869


                           KRISHAN KUMAR                                     A
                                     v.
                THE STATE OF RAJASTHAN & ANR.
                   (Criminal Appeal No. 1088 of 2018)
                            AUGUST 28, 2018
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          [R. BANUMATHI AND VINEET SARAN, JJ.]
       Criminal Law – By impugned order, High Court set aside the
order of acquittal of appellant and remitted the matter to trial court
for denovo trial only on the ground that the prosecutrix was not
examined before the trial court – Grievance of appellant was that
the impugned order was passed by High Court while considering                C
bail application by another person and that too without issuing
notice to the appellant – Held: Since no opportunity of hearing
was afforded to the appellant, the impugned order is set aside and
matter is remitted to High Court for fresh consideration – Appeal
disposed of.                                                                 D
       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1088 of 2018.
       From the Judgment and Order dated 24.08.2015 of the High Court
of Judicature for Rajasthan at Jaipur Bench in S.B. Criminal Misc. Bail
Application No. 3953 of 2015.                                                E
       Vikrant Yadav, Tripurari Rai, Piyush Kant Roy, M. C. Dhingra,
Anish Maheshwari, Yunus Malik, Milind Kumar, Abhishek Gupta, Advs.
for the appearing parties.
       The Judgment of the Court was delivered by
       BANUMATHI, J. 1. Leave granted.                                       F
       2. This appeal arises out of an order dated 24.08.2015 of the High
Court of Rajasthan at Jaipur in S.B. Criminal Misc. Bail Application
No.3953 of 2015 in which the High Court has set aside the order of
acquittal of the appellant and remitted the matter back to the trial court
for de novo trial only on the ground that the prosecutrix was not examined
                                                                             G
before the trial court.
       3. We have heard Mr. Tripurari Rai, learned counsel appearing
for the appellant, Mr. Abhishek Gupta, learned counsel for the applicant-
prosecutrix and Mr. Anish Maheshwari, learned counsel for the
respondent-State.
                                                                             H
                                   869
870              SUPREME COURT REPORTS                         [2018] 10 S.C.R.


A            4. Learned counsel for the appellant has submitted that the High
      Court while considering the bail application in S.B. Criminal Misc. Bail
      Application No.3953 of 2015 filed by one Satish, even without issuing
      notice to the appellant herein who was acquitted by the trial court on the
      ground of absence of evidence, chose to set aside the order of acquittal.
      It was further submitted that order of acquittal was recorded by the trial
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      court after a full-fledged trial and while so setting aside the acquittal the
      High Court should have given an opportunity of hearing to the appellant.
             5. We find force in the submission of learned counsel for the
      appellant. At this juncture, Mr. Abhishek Gupta, learned counsel
      appearing for the applicant-prosecutrix, has submitted that against the
C     order of acquittal of the appellant, the prosecutrix has also filed an appeal
      i.e. S.B. Crl. Misc. Application NO.198 of 2016 in S.B. Criminal Appeal
      No.802 of 2016 which is stated to be pending before the High Court.
            6. In such view of the matter and since opportunity has not been
      afforded to the appellant, the impugned order is set aside and the matter
D     is remitted to the High Court for fresh consideration. The appeal is
      accordingly disposed of.
            7. We request the High Court to afford sufficient opportunity to
      the appellant herein in S.B. Crl. Appeal No.802 of 2016 and to the
      prosecutrix while considering the matter afresh and decide the same
E     expeditiously in accordance with law.
      Devika Gujral                                               Appeal disposed of.




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