B.D. SINGH, J. This application under Sections 435 and 439 of the Code of Criminal Procedure (hereinafter referred to as, the Code), by Kamesh war Singh, the sole petitioner, is directed against the judgment and order of the Additional Sessions Judge, affirming the conviction and sentence passed on him by the trial court. The petitioner was convicted of offences under Section 167, 409 and 468 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year under each of the counts. The sentences under the different counts were however, ordered to run concurrently. 2. In order to appreciate the points involved in this application, it will be necessary to state some of the relevant facts. The petitioner was an extra departmental agent, which is equivalent to the post of a postmaster of a village post office, at Saidabad, Police Station Bikram, in the District of Patna. During the tenure of his office, on the 10th December, 1964, Money Order No. 3997 for Rs. 50/-, payable to Sarifan (P.W. 4) and another money order No. 4413 for Rs. 80/-, payable to Rashoolan (P.W. 3 ), who is a daughter of P.W. 4 were received in the said post office. The prosecution case was that the petitioner forged the left thumb impressions of P.W. 4 and 3 and showed in the two money order vouchers (Exts. 22 and 22/1) that the amounts of the two money orders were duly paid to P. W's 4 and 3, but, in fact, those amounts were not paid to them and were misappropriated by the petitioner. The matter came to the knowledge of the authorities in the following manner. 3. On the 15th December, 1964, Shyam, Deni Singh, Lines Overseer of the postal department, went to the said post office, for inspection. During the inspection he enquired from PW's 4 and 3, who told him that they had not received the aforesaid amounts. P. W. 1 thereafter took their statements (Exts.6 and 6/1) Their statements were written by one Md. Rafique, on which PW's 4 and 3 endorsed. In the course of investigation, P.W. 1 had also recorded the statement of one Ramji Prasad (P.W.7) and recorded his statement also, which was marked as Exhibit 6/2. The case of P.W.7 was that the petitioner had misappropriated a sum of Rs. 300/- and odd which was paid by P.W.7 towards a V. P. Parcel. In the course of investigation, P.W. 1 had also recorded the statement of one Ramji Prasad (P.W.7) and recorded his statement also, which was marked as Exhibit 6/2. The case of P.W.7 was that the petitioner had misappropriated a sum of Rs. 300/- and odd which was paid by P.W.7 towards a V. P. Parcel. It may be convenient to mention here that the petitioner was not convicted for the allegations made against him by P.W.7. P.W.1 thereafter sent his report (Ext. 8) to Kashinath Sinha (P.W.6), Inspector of Post Offices. On the 8th January, 1965, P.W.6 then went to the post office, seized the connected papers and procured from the Calcutta Head Office all the original money order paid vouchers. P.W.6 also recorded the statement of Tarkeshwar Prasad (P.W. 10), who was a witness on the two paid vouchers, where in the payees endorsements there were implying that the payments were received in the presence of P.W.6. Subsequently he sent a written report (Ext. 10) to the Bikram Police Station on the 8th May, 1966, on the basis of which the first information report was drawn up. The investigating officer thereafter started investigation. In course of investigation, he took specimen writings of the petitioner and left thumb impressions of P.W's 4 and 3. On examination by expert it was found the that left thumb impressions on the two money order vouchers did not tally with the specimen thumb impressions of P. W's 4 and 3. After completing investigation, the investigating officer submitted charge-sheet against the petitioner. After usual commitment inquiry under Chapter XVIII of the Code, he was committed to the court of session to face the trial. 4. During the course of the trial, on behalf of the prosecution as many as 19 witnesses were examined to establish' the prosecution case. The defence case was that the petitioner had not misappropriated any amount nor he had forged the left thumb impressions of the payees. According to the defence, one Mohammad Hadish, husband of P.W. 3, brought some women in a bullock-cart in Parda and misrepresented to the petitioner that the payees of the two money orders were in the cart. Hadish took the money order coupons to the cart and procured the left thumb impressions of the two persons purported to be of P. W's, 4 and 3. After that Hadish took the payments on their behalf. Hadish took the money order coupons to the cart and procured the left thumb impressions of the two persons purported to be of P. W's, 4 and 3. After that Hadish took the payments on their behalf. The petitioner made the payments in good faith in the presence of P.W. 10. 5. Learned Counsel appearing on behalf of the petitioner has asailed the judgments and orders of the courts below convicting the' petitioner under the various sections and imposing the sentence of imprisonment of one year under each of those three sections. He submitted that the trial court has committed a serious error in not following the mandatory provisions of law provided under section 289 of the Code, the relevant portion of which reads as : "(1) When the examination of the witnesses for the prosecution and the examination (if any) of the accused are concluded, the accused shall be asked whether he means to adduce evidence," Learned Counsel also drew my attention to his application dated the 24th May 1967 filed before the trial court, the relevant portion of which reads- "That the petitioner wants to examine a defence witness in support of his case. That a Dasti summon may be issued for his appearance in the court. It is, therefore, prayed that one day time may be allowed for bringing the defence witness. " This application of the petitioner was disposed of by the learned Assistant Sessions Judge by an order of the same date, the relevant portion of which is to this effect :"Prosecution case having been closed, the accused is examined u/s 342 Cr. P. C. Accused files a petition praying for one day time to bring a defence witness and to issue dasti summons to him. Accused should have prayed earlier to issue dasti summons to his witnesses. His prayer is rejected. No defence witness is present. Heard argument on behalf of the prosecution in full, but in part on behalf of the accused." Learned Counsel, in this connection, also referred to the examination of the petitioner under Section 342 of the Code by the trial court. He pointed out that nowhere the Learned Assistant Sessions Judge asked any question to the petitioner as to whether he wanted to give any witness in defence. He pointed out that nowhere the Learned Assistant Sessions Judge asked any question to the petitioner as to whether he wanted to give any witness in defence. Due to the irregularities enumerated above, learned Counsel urged that the conviction and the sentence imposed upon the petitioner should not be allowed to stand, as no opportunity at all was given to the petitioner to establish his case of defence. In order to substantiate his contention, he relied upon a Bench decision of the Calcutta High Court in the case of Queen-Empress- Vs-Imam Ali Khan 23 Cal 252, wherein Banerjee and Hill, JJ, while dealing with the provisions contained in Section 289 and 297 of the Code, observed that the formality of calling upon an accused person to enter on his defence under the provisions of Section 289 of the Code is not a mere formality, but is an essential part of a criminal trial. Omission to do so occasions a failure of justice, and is not cured by Section 537 of the Code. A similar view was taken in the case of State-Vs-Kochan Chellapyan A.I.R. 1954 Tr. Co. 435, where Koshi C.J. and Kumara Pillai, J. held that the question whether the accused means to adduce evidence should be put to him is a mandatory rule relating to the trial of sessions cases is clear from the language of Section 289 (l) of the Code. It is not a mere formality, but it is an essential part of a criminal trial. Whether the accused gives the answer or not is a different matter. The Judge should have done his duty and his omission to do so invalidates the trial. 6. On the other hand learned Counsel appearing on behalf of the State contended that, no doubt, the Assistant Sessions Judge has failed to examine the accused petitioner on that issue, but for that reason the conviction and the sentence imposed upon him should not be set aside. The case should be remanded to the sessions court for giving an opportunity to the petitioner to examine his defence witness and thereafter it should proceed in accordance with law. He pointed out that in the two cases on which reliance has been placed on behalf of the petitioner also, the matter was remitted to the Court of session. The case should be remanded to the sessions court for giving an opportunity to the petitioner to examine his defence witness and thereafter it should proceed in accordance with law. He pointed out that in the two cases on which reliance has been placed on behalf of the petitioner also, the matter was remitted to the Court of session. Learned Counsel appearing on behalf of the petitioner submitted that in the case which was before the Travancore-Cochin High Court, the offence was of murder and the case before the Calcutta High Court also related to a serious offence, as it appears to be Jury Trial. In the instant case, he submitted the petitioner has suffered harassment of a commitment proceeding as well as a sessions trial for about 8 years now, for no fault of his, as the petitioner had filed an application before the sessions court for allowing him an opportunity to examine a defence witness, which the learned Assistant sessions Judge has himself referred to in his order. If a court has not followed the mandatary provision of law in spite of the fact that a petition was filed by the petitioner, the latter should not be made to suffer. Besides, the learned Counsel pointed out that the amount payable to P. W.3 was already paid by the petitioner on the 24th December, 1964, From the evidence of P.W. 4 also it is clear that she also had received the payment subsequently. The amount itself is a petty amount, the total being Rs.130/- Learned Counsel submitted, therefore, that in the circumstances a re-trial should not be ordered by this Court. 7. In my opinion, the facts and in the circumstances of the case discussed above, the judgment and the order of the learned Assistant Sessions judge, convicting and imposing sentence upon the petitioner under the various sections cannot be sustained. Now the question arises, whether it should be remitted to the court of session. In my view, in this case the petitioner was not to blame at all. It was realy the fault of the learned Assistant Sessions Judge and for his fault he should not be allowed to suffer. It has already been indicated above that about 8 years have now passed. If I send it back again to the sessions court for a re-trial, one does not know, when it will end. It was realy the fault of the learned Assistant Sessions Judge and for his fault he should not be allowed to suffer. It has already been indicated above that about 8 years have now passed. If I send it back again to the sessions court for a re-trial, one does not know, when it will end. In this connection I m.1Y refer to a decision of the Supreme Court in the case of Mahander Vs. The State of Hyderabad where-in paragraph 20 a similar prayer on behalf of the prosecution was dealt with. It will be relevant to quote the said paragraph ill extenso ; "We were asked to reopen the question and, if necessary, to remand the case. But we decline to do that. Judges and Magistrates must realise the importance of the examination under Section 342, Criminal Procedure Code, and this Court has repeatedly warned them of the consequences that might ensue in certain cases. The appellant was arrested in December, 1950, and has been on his trial one way and another ever since, that is to say for over 4 ½ years. We are hot prepared to keep persons who are on trial for their lives under indefinite suspense because trial judges omit to do their duty. Justice is not one sided. It has many facets and we have to draw a nice balance between conflicting rights and duties. While it is incumbent on us to see that the guilty do not escape it is even more necessary to see that persons accused of crime are not indefinitely harassad. They must be given a fair and impartial trial and while every reasonable latitude must be given to those concerned with the detections of crime and entrusted with the administration of justice, limits must be, placed on the lengths to which they may go. “Except in clear cases of guilt; where the error is "purely technical, the forces that are arrayed against the accused should no more be permitted in special appeal to repair the effects of their bungling than an accused should be permitted to repair gaps in his defence which he could and ought to have made good in the lower courts. “Except in clear cases of guilt; where the error is "purely technical, the forces that are arrayed against the accused should no more be permitted in special appeal to repair the effects of their bungling than an accused should be permitted to repair gaps in his defence which he could and ought to have made good in the lower courts. The scales of justice must be kept on an even balance whether for the accused or against him, whether in favour of the State or not; and one broad rule - must apply in all cases.” My view is fortified because of the above observation of their Lordships of the Supreme Court. 8. In the result, the application is allowed and the conviction and the sentences imposed upon the petitioner are set aside.