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2002 DIGILAW 1349 (PNJ)

Ram Dhari v. State Of Haryana

2002-12-04

VINEY MITTAL

body2002
Judgment Viney Mittal, J. 1. Ram Dhari-petitioner has approached this Court through the present petition under Section 482 Criminal Procedure Code challenging the judgment dated February 1, 1995, passed by the learned Additional Sessions Judge, Kurukshetra, whereby after setting aside the judgment dated August 7, 1992 passed by the learned Chief Judicial Magistrate, Kurukshetra convicting the petitioner, the case has been remanded back to the trial Court for putting the evidence of the prosecution to the petitioner under Section 313 of the Code of Criminal Procedure. 2. Certain facts be noticed. Sat Pal, Sona Ram, Nikku Ram and Ram Dhari (the present petitioner) were jointly tried under Sections 419, 420, 465, 467 and 468 of the Indian Penal Code in pursuance to F.I.R. No. 234 dated August 25, 1992, registered at Police Station Thanesar. After the investigation a challan was presented by the police. Vide order dated October 9, 1987, Nikku Ram was discharged by the learned trial Magistrate. Proceedings were continued against the remaining three persons as aforesaid. Subsequently, after the conclusion of the trial, Sat Pal and Sona Ram were acquitted by the learned Chief Judicial Magistrate, vide judgment dated August 7, 1992, however, the petitioner Ram Dhari was convicted under Sections 419, 420 and 468 of the Indian Penal Code. The petitioner felt aggrieved. He took the matter in appeal before the learned Additional Sessions Judge. During the course of appeal, it was argued on behalf of the petitioner that entire prosecution evidence has not been put to the petitioner under Section 313 of the Code of Criminal Procedure. The learned Additional Sessions Judge agreed with the submissions raised on behalf of the petitioner Ram Dhari. It was found as a fact by the learned Additional Sessions Judge that the material evidence led by the prosecution had not been put to the petitioner while recording his statement under Section 313 of the Code of Criminal Procedure. However, rather than granting the benefit of the aforesaid lapse committed by the prosecution to the petitioner, the learned Additional Sessions Judge vide order dated February 1, 1995 chose to set aside the judgment dated August 7, 1992 passed by the Chief Judicial Magistrate, Kurukshetra and remanded the case back to the trial Magistrate with a direction that the entire evidence be now put to the accused petitioner under Section 313 of the Code of Criminal Procedure. 3. 3. The petitioner now feels aggrieved against the aforesaid order and approached this Court through the present petition. 4. I have heard Shri A.S. Virk, learned counsel for the petitioner and Sh. Rakesh Deswal, learned Assistant Advocate General, Haryana appearing for the respondents and have also gone through the record of the case with their assistance. 5. Shri A.S. Virk, learned counsel for the petitioner has submitted that the course adopted by the learned Additional Sessions Judge, remanding the case was wholly incorrect in as much as, the petitioner has already faced long and protracted trial and as such he was also entitled to the benefit of lapses committed by the prosecution. According to Shri Virk, when the learned Additional Sessions Judge himself noticed that prosecution has failed to put entire evidence to the petitioner, while recording his statement under Section 313 of the Code of Criminal Procedure, the benefit of the aforesaid lapse should have been given to the petitioner. As per Shri Virk, the course adopted by Additional Sessions Judge by remanding the case back was totally unwarranted. 6. On the other hand Shri Rakesh Deswal, learned Assistant Advocate General, Haryana submits that since the learned Additional Sessions Judge had found that there was some lacuna left, therefore, only with a view to fill up the aforesaid lacuna and to avoid any prejudice to the petitioner, the course of remand has rightly been adopted by the learned Additional Sessions Judge. 7. I have given my thoughtful consideration to the entire matter. In my considered opinion, the present petition deserves to succeed. 8. It has been held by the Apex Court in A.I.R. 1955 S.C. 792 in the case of Machander v. State of Hyderabad as follows :- "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 4-1/2 years. We are not 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. 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 4-1/2 years. We are not 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 harassed. They must be given a fair and impartial trial and while every reasonably 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. 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." 9. The law laid down by the Apex Court in Machanders case (supra) was also followed by a Division Bench of this Court in the case of Municipal Committee, Amritsar v. Om Parkash, 1969 P.L.R. 793. The Division Bench in Om Parkashs case (supra) further held that although after finding that the evidence have not been put to the accused would have necessitated the re-trial but keeping in view the fact that the proceedings had gone in for a period of more than 3-1/2 years, during which accused had suffered, a re-trial was not to be ordered. 10. Keeping in view the authoritative pronouncements in Machanders case (supra) and in Om Parkashs case (supra), I have no hesitation in allowing the present petition and quashing the order dated February 1, 1995 passed by the Additional Sessions Judge, Kurukshetra, whereby he has ordered the re-trial of the petitioner. Accordingly, the present petition is allowed. 10. Keeping in view the authoritative pronouncements in Machanders case (supra) and in Om Parkashs case (supra), I have no hesitation in allowing the present petition and quashing the order dated February 1, 1995 passed by the Additional Sessions Judge, Kurukshetra, whereby he has ordered the re-trial of the petitioner. Accordingly, the present petition is allowed. The order dated February 1, 1995 passed by the learned Additional Sessions Judge is quashed and the petitioner is acquitted of the charge against him.