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2002 DIGILAW 1390 (PNJ)

Ram Dhan v. State Of Haryana

2002-12-13

S.S.SARON

body2002
Judgment S.S.Saron, J. 1. The present Revision Petition has been filed against the order dated 10.3.1990, passed by the Additional Sessions Judge, Sonepat, whereby the appeal filed by the petitioner Ram Dhan against his conviction and sentence for the offence under Section 411 of the Indian Penal Code (I.P.C. for short) has been accepted. However, the case was remanded back to the learned trial Magistrate for re-trial according to law after framing the charge correctly in the case. 2. Notice of the case was issued on 30.3.1990 for 18.4.1990 meanwhile the proceedings in the trial Court were directed to be stayed. 3. The petitioner was apprehended by a police party on 1.10.1984 in the area of Police Post Mimarpur. He was found to be in possession of ornaments, the ownership of which he could not account for. The police took the ornaments in possession under S. 102 of the Code of Criminal Procedure (Cr.P.C. for short). 4. After some time Charan Singh complainant had come to the police post and made a complaint regarding theft of his ornaments. He was suspicious that the petitioner Ram Dhan had stolen his ornaments because he had come to the house of Charan Singh on the night of 30.9.1984 and was found missing in the morning. Charan Singh identified his ornaments as belonging to him. In this manner Ram Dhan petitioner had kept in his possession stolen ornaments knowing or having reason to believe the same as stolen property. Accordingly, challan was presented in the Court of the Judicial Magistrate 1st Class, Panipat, on 4.12.1984. To the charge framed for the offence under S. 411 I.P.C., the petitioner pleaded not guilty. 5. The learned trial Magistrate, after conducting the trial, vide his order dated 9.6.1989 held that the prosecution had been able to bring home the guilt against the petitioner beyond all reasonable doubt. Consequently, the petitioner was convicted for having committed an offence under Section 411 I.P.C. Accordingly, he was sentenced to undergo rigorous imprisonment for one and half years. 6. Against the conviction and sentence the petitioner filed Criminal Appeal, which was disposed of by learned Additional Sessions Judge, Sonepat 10.3.1990. The learned Additional Sessions Judge, vide his order dated 10.3.1990 found that vide recovery memo Ex. P8 under Section 102 Cr.P.C., the ornaments were recovered in the area of Mimarpur. 6. Against the conviction and sentence the petitioner filed Criminal Appeal, which was disposed of by learned Additional Sessions Judge, Sonepat 10.3.1990. The learned Additional Sessions Judge, vide his order dated 10.3.1990 found that vide recovery memo Ex. P8 under Section 102 Cr.P.C., the ornaments were recovered in the area of Mimarpur. However, the charge framed by the learned trial Court showed that the recovery was alleged to have been made in the area of Ghanaur, and that Mimarpur was not mentioned. In this view of the matter, it was found by the learned Additional Sessions Judge that there was a different place mentioned in the charge-sheet. Besides, all the ornaments which were recovered from the possession of the accused and which were identified by the complainant, were not specifically mentioned in the charge sheet. Accordingly, it was held that the charge-sheet was defective and the same had resulted in prejudice to the accused. It was also found that the statement of the accused under Section 313 Cr.P.C. had not been correctly recorded by the learned trial Magistrate. All the incriminating evidence had not been put to him. It was not put to the accused that the ornaments in question were recovered from his possession and that he could not account for the possession over the ornaments and suspecting the ornaments as stolen property, the same were taken in possession under Section 102 Cr.P.C. In view of the these defects, it was held that the defective framing of the charge has resulted in failure of justice to the accused because wrong place of recovery is mentioned and all ornaments which were recovered from the possession of the accused and were identified by the complainant were not mentioned in the charge- sheet. The accused himself was claiming ownership over the disputed ornaments. Thus there did not remain identity of the subject-matter between the parties and the accused was misled in his defence as to which ornaments belonged to him. Accordingly, it was ordered by the learned Additional Sessions Judge that fresh charge should be framed against the petitioner and that retrial is warranted in the interest of justice so as to afford the petitioner an appropriate opportunity to meet his case and also to explain the incriminating evidence against him. Accordingly, it was ordered by the learned Additional Sessions Judge that fresh charge should be framed against the petitioner and that retrial is warranted in the interest of justice so as to afford the petitioner an appropriate opportunity to meet his case and also to explain the incriminating evidence against him. It is against the said order dated 10.3.1990, that the present revision petition has been filed, assailing the order of the learned Additional Sessions Judge, whereby he has ordered for retrial of the case. 7. I have heard the learned Counsel for the parties. 8. Shri R.P. Dahiya, Advocate, appearing for the petitioner has contended that the prosecution cannot be permitted to fill up the lacuna left by it in the case. He has submitted that the judgment and order of the learned Additional Sessions Judge, is erroneous to the extent that despite noticing glaring irregularities, he has remanded the case for fresh trial. In support of his case, the learned Counsel has also placed reliance in the case of Municipal Committee, Amritsar v. Om Parkash, 1969 P.L.R. 793, which has been followed in the case of Chaturbhuj v. State of Haryana, 1985(1) R.C.R. 330. 9. On the other hand Shri Vijay Dahiya, A.A.G., Haryana, appearing for the Sate, contends that the order of the leaned Additional Sessions Judge, remanding the case is legal and valid. In terms of the order not only will the prosecution be able to establish its case, but the petitioner would also have a right to show his defence. The order of conviction which has been recorded by the learned trial Magistrate, would be re-considered and therefore, no prejudice would be caused to the petitioner. 10. I have considered the respective submissions of the learned Counsel for the parties. It is not in dispute that the occurrence in the case relates to 1.10.1984 and the petitioner has been facing trial for all this while. The learned Additional Sessions Judge, found grave irregularities in the conduct of the case which were found and held to have resulted in and caused prejudice to the petitioner and therefore the case was remanded for framing correct charge and thereafter to proceed in accordance with law. 11. As already noticed above, the place of recovery has not been correctly depicted in the charge-sheet. 11. As already noticed above, the place of recovery has not been correctly depicted in the charge-sheet. Besides the material incriminating evidence which has come on record was not put to the petitioner in his statement recorded under Section 313 Cr.P.C. Even the ornaments which were recovered from the possession of the petitioner and were identified by the complainant were not specifically mentioned in the charge-sheet. 12. Consequently, not only the charge-sheet was held to be defective but it was also held that the statement of the accused under Section 313 Cr.P.C. was not correctly recorded. 13. The point, therefore, which requires consideration is whether the petitioner should have been acquitted and the case ought not have been remanded to the learned trial Magistrate for framing correct charge and then to proceed in accordance with law. In this regard the judgment of the Honble Supreme Court in Machander v. The State of Hyderabad, AIR 1955 S.C. 792, may be noticed wherein it was held that the Judges and Magistrate must realise the importance of the examination under Section 342 (now Section 313 Cr.P.C.). It is their duty to question the accused properly and fairly, bringing home to his (accused) mind in clear and simple language the exact case as he has to meet and each material point that is sought to be made against him and of affording him a chance to explain them if he can and so desires. The said error was held to be not a mere technicality and since the accused has been on trial for a long period, the Court would not be prepared to order a retrial. The following observations of the Honble Supreme Court are apposite :- "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. 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 reasonable latitude must be given to those concerned with the defections of crime and entrusted with the administration of justice, limits must be placed on the lengths to which they may go. Except in clear case of guilt, where the error is purely technical, the forces that are arrayed against the accused should no more be permitted in special appeals 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 for the State or not; and one broad rule must apply in all cases." The above judgment of the Honble Supreme Court was relied upon by a Division Bench of this Court in Municipal Committee, Amritsars case (supra). In the said case the Food Inspector had taken a sample of ghee which on analysis was found to be sub-standard. However, the report of the Central Food Laboratory, Calcutta, was not put to the accused in his statement. This was held by the Division Bench to have resulted in causing prejudice to the accused in the said case and that the failure of the trial Court to examine the accused with regard to the report vitiated the trial. Then the other question that arose was whether a retrial should be ordered. The Division Bench observed that ordinarily on the aforesaid finding a retrial would have been necessitated but in view of the judgment of the Honble Supreme Court in Machanders case (supra) an order of retrial would not have met the ends of justice because the accused had already faced trial for a period of about three and half years. The Division Bench observed that ordinarily on the aforesaid finding a retrial would have been necessitated but in view of the judgment of the Honble Supreme Court in Machanders case (supra) an order of retrial would not have met the ends of justice because the accused had already faced trial for a period of about three and half years. It was observed that the proceedings having gone for more than three and half years during which period the accused had suffered from suspense, therefore, it would not be conducive to justice if a retrial is ordered resulting in the proceedings starting afresh. The aforesaid observations were reiterated in the case of Chaturbhuj v. State of Haryana (supra), wherein also in a case under the Prevention of Food Adulteration Act, sample of `Bura was found adulterated and the report of the Public Analyst was not put to the accused during his examination under Section 313 Cr.P.C. It was held that this was not a technical formality and the accused was acquitted by holding that the proceedings against him had continued for more than three years. 14 In the case in hand, as already noticed above, the occurrence in the case took place on 1.10.1984 and the FIR was registered on the same day. Thereafter, the challan was presented in Court on 4.12.1984 and the petitioner was convicted and sentenced by the learned Judicial Magistrate Ist Class, Sonepat on 9.6.1989. The petitioner then filed an appeal before the learned Additional Sessions Judge, who remanded the case to the learned trial Court on 10.3.1990. Against the said order dated 10.3.1990, the present Criminal Revision Petition was filed on 29.3.1990 and notice was issued to the Advocate General, Haryana, for 18.4.1990 and further proceedings in the trial Court were directed to be stayed. Thereafter, the case has been put up for final hearing now. In this view of the matter, it is evident that the petitioner hasundergone the travails of prosecution for a period of five and half years before the learned Judicial Magistrate and thereafter he has also pursued his appeal before the learned Additional Sessions Judge, Sonepat and then his Revision Petition in this Court. In this view of the matter, it is evident that the petitioner hasundergone the travails of prosecution for a period of five and half years before the learned Judicial Magistrate and thereafter he has also pursued his appeal before the learned Additional Sessions Judge, Sonepat and then his Revision Petition in this Court. Besides, the learned Additional Sessions Judge, while considering the appeal has held that the defective frame of the charge and the material evidence against the petitioner was not put to him in the statement recorded in terms of Section 313 Cr.P.C. had caused prejudice to him. This according to the Honble Supreme Court was not a mere technicality. A finding of prejudice having already been recorded by the learned Additional Sessions Judge, it would be proper to give the benefit of doubt to the petitioner in the conduct of the trial as the same admittedly caused prejudice to him. 15. Keeping in view the facts and circumstances of the case and also the time taken for which the petitioner has undergone the travails of the prosecution. I am of the view that the ends of justice would be met, if the order of the learned Additional Sessions Judge, Sonepat, is set aside to the extent that he has remanded the case for retrial after framing correct charge. 16. Consequently, the Revision Petition is accepted and the order dated 10.3.1990 passed by the learned Additional Sessions Judge, Sonepat is set aside to the extent that the case is remanded for retrial after framing afresh charge. The net result in accepting the Revision is the petitioner/accused stands acquitted for the offence attributed to him.