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2008 DIGILAW 856 (PNJ)

Pushpa Lata Mittal v. State of Punjab

2008-04-08

VINOD K.SHARMA

body2008
JUDGMENT Vinod K. Sharma, J. (Oral) - This Criminal Revision Petition has been filed against the order dated 14.2.2007 passed by the learned Addl. Sessions Judge, Barnala vide which the appeal filed by the appellant against the judgment of conviction was accepted and the case was remanded back to the trial Court by observing as under :- "8. Shri Rahul Gupta at the very on the set of his submissions has led a scathing attack on the manner in which the charges have been framed and statement under Section 313 Criminal Procedure Code, of the accused, now appellant, was recorded and has stressed the fact that the there has been total non-adherence to the requirement of law and which arguments have been adequately accepted by both the counsel representing the respondents and that all the documents not having been put to the accused nor the circumstances while recording her statement under Section 313 Criminal Procedure Code Giving thoughtful consideration to these arguments, the position of law is well laid down in the case Balwinder Singh v. State of Haryana reported in 1995(2) R.C.R. 214, where reliance was placed on a Full Bench view of the Honble High Court in the case Dara Singh v. State reported in AIR 1952 Punjab 214, whereby it was very well laid down that in the eventuality, when all relevant questions are not put to the accused, remand by Appellate Court was justified as there was no question of filling lacuna in the prosecution case as it is clearly lapse on the part of the Court for which the prosecution cannot be blamed and reverting back to the instant case, as has been observed by this Court, the material documents comprising of complaint Ex. PA, inquiry report of ASI Ram Singh Ex. CW3/A, certificate of Dr. Surinder Pal Mittal, Ex. CW8/A, report Ex. CW5 treatment by Dr. PA, inquiry report of ASI Ram Singh Ex. CW3/A, certificate of Dr. Surinder Pal Mittal, Ex. CW8/A, report Ex. CW5 treatment by Dr. Sukhdev Singh Dhaliwal have never been put to the accused while recording her statement under Section 313 Criminal Procedure Code and all these documents are material documents and evidence against the accused for which she has been denied a valuable right to explain and give satisfactory answers to these facts and evidence and by not doing so, the Learned Lower Court has certainly run into an error causing immense prejudice to the case of the accused/appellant and in view of the position of law detailed above, compels this Court to hold such a process so adopted by the Lower Court to be prejudicial to the interest of the appellant and therefore, making it imperative for this court to accept this appeal to that limited extent and in view of these circumstances, the matter, as such, is remanded back to the trial court to proceed ahead in accordance with law. Both the parties have been directed to appear before the learned Trial Court on 2.3.2007. Before parting with this judgment, it is necessary to highlight though not argued by any of the sides, the charges in this case has not been properly framed as it finds mentioned therein "due to rash and negligent act", when it ought to have been "rash or negligent" and even there has been no consideration of the applicability of provisions of Sections 312, 313, 314, 316 Indian Penal Code, commensurate with the evidence led on the record. Lower court record be sent back immediately and appeal file be consigned to the record room." 2. The learned counsel for the petitioner challenges the said order primarily on the ground that by way of remand the prosecution has been allowed to fill in lacuna, which cannot be allowed as this would cause severe prejudice to the petitioner who has faced the criminal prosecution since 10.3.1999. 3. The learned counsel for the petitioner also contends that the order of remand cannot be sustained as the benefit of lapse of the prosecution is to be given to the accused. It was also argued by the learned counsel for the petitioner that in the present case the evidence brought on record did not justify the remand of the case. 4-5. Mr. It was also argued by the learned counsel for the petitioner that in the present case the evidence brought on record did not justify the remand of the case. 4-5. Mr. Ashok Singla, learned counsel appearing on behalf of the petitioner also contends that in the present case earlier application was made before the learned trial Court which was dismissed and no objections against the said decision were filed by the prosecution and, therefore, it was not open to the learned lower appellate Court to have granted relief to the prosecution. In support of this contention the learned counsel for the petitioner placed reliance on the judgment of the Honble Supreme Court in the case of Machander v. The State of Hyderabad, AIR 1955 Supreme Court 972 to contend that the fact of non-compliance of Section 342 Criminal Procedure Code entitled the accused to acquittal. The Honble Supreme Court in the said case on the facts of the said case was pleased to lay down as under :- "20. 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. It had 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 detections of crime and entrusted with the administration of justice, limits must be placed on the lengths to which they may go. 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, whom the error is purely technical, the forces that are arrayed against the accused should no more be permitted in special appeal to law the effects of their bungling than an accused should be permitted to repairs gap in his defence which he could and ought to have made good in the lower courts. The scale 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. 20. The error here is not a mere technicality. The appellant appears to have been ready to disclose all on the 29th and made a clean breast of everything and yet the police waited six days before getting a confession judicially recorded. That may be capable of explanation but the difficulty of asking an accused person to establish facts of this kind in his favour four and a half years later is obvious. Without, therefore attempting to lay down any general rule, we are not prepared to order a retrial in the case because of the facts that appear here." 6. The learned counsel for the petitioner also contends that the law laid down by the Honble Supreme Court in the case of Rambhau v. State of Maharashtra, 2001(2) Recent Criminal Reports 721 (SC) actually supports the case of the petitioner as additional evidence cannot be allowed to be led by the prosecution as the same cause prejudice to the accused. However, on reading of the judgment in Rambhau v. State of Maharashtras case (supra) it may be noticed that the Honble High Court can take additional evidence to rectify irregularity committed by the prosecution, but cannot rectify a defect and lacuna in the prosecution case. In the said judgment the word irregularity was defined to mean contrary to rules. Thus, the word would cover any case where nothing has been done in the manner laid down by the statute irrespective of what that manner might be. In the said judgment the word irregularity was defined to mean contrary to rules. Thus, the word would cover any case where nothing has been done in the manner laid down by the statute irrespective of what that manner might be. Thus, it would be seen that the Honble Supreme Court was of the view that the irregularity can always be corrected. 7. Mr. K.S. Pannu, Assistant Advocate General, Punjab controverted the arguments raised by the learned counsel for the petitioner by placing reliance on the judgment of this Court in the case of Ram Shari v. State of Haryana, 2003(1) R.C.R. (Criminal) 838 wherein this Court has been pleased to lay down that if a document is not put to an accused under Section 313 Criminal Procedure Code it cannot be said to be incriminating defect but a mere irregularity and, therefore, the Court would be justified in remanding the case to clear such irregularity in the prosecution case. 8. The learned counsel for the State also placed reliance on the judgment of this Court in the case of Balvinder Singh v. State of Haryana, 1995(2) Recent Criminal Reports 214 to contend that order of appellate Court remanding the case is valid order. There is no question of giving opportunity to prosecution to fill in lacunae. It was duty of Magistrate and not prosecution to put all relevant question, if there is lapse on the part of Magistrate, prosecution cannot be blamed, therefore, the order of remand is upheld. This Court in the case of Balvinder Singh v. State of Haryana (supra) has been pleased to lay down as under :- "4. I am not able to persuade myself to agree with the above decisions. It is the duty of the Magistrate to put all relevant questions to the accused under Section 313 of the Code of Criminal Procedure. It is not the function of the prosecution to suggest the relevant questions. If there is lapse on the part of the Court in putting the relevant questions to be accused, to explain the circumstances appearing in the evidence against him, the prosecution cannot be blamed. It is not the function of the prosecution to suggest the relevant questions. If there is lapse on the part of the Court in putting the relevant questions to be accused, to explain the circumstances appearing in the evidence against him, the prosecution cannot be blamed. The real importance of section 313 Criminal Procedure Code is that there is a duty cast upon the Court to question the accused properly and fairly so that it is brought home to the accused in clear words the exact case that the accused will have to meet, and thereby an opportunity is given to the accused to explain the circumstances. When the Court fails to discharge its duty as envisaged under Section 313 Criminal Procedure Code it is certainly open to the appellate Court to remand the matter back to the trial Court so as to enable it to discharge its obligatory and mandatory duty. Failure of the Court in discharging its duty cannot be construed as a lacunae in the case of the prosecution. No one can be made to suffer for the mistake of the Court. No prejudice is caused to the accused by remand of the case. In this view, I am fortified by a Full Bench judgment of this Court in Dara Singh v. The State, AIR 1952 Punjab 214. The Full Bench observed as under :- "My answer to the question proposed is that it is within the powers of the High Court to examine and further examine the convicts and that the law does not place any restrictions upon this power. But if the High Court is of the opinion whether before or after examining the convicts that non-compliance with the provisions of Section 342, Criminal Procedure Code, has occasioned or is likely to have occasioned prejudice to the convicts the High Court will order a fresh trial. If, on the other hand, it comes to the conclusion that no such prejudice was caused and no failure of justice was occasioned the appeal will be heard and decided upon merits. With regard to the order of remand this may contain a direction that the trial will proceed from the point where the irregularity occurred or a totally fresh trial may be ordered depending upon the facts of that particular case. For instance, if the trial Judge has been transferred a de novo trial will be ordered. With regard to the order of remand this may contain a direction that the trial will proceed from the point where the irregularity occurred or a totally fresh trial may be ordered depending upon the facts of that particular case. For instance, if the trial Judge has been transferred a de novo trial will be ordered. On the other hand, in some cases the same Sessions Judge may be asked to re-examine the accused and to dispose of the case without holding a completely new trial." (Emphasis added) 5. The above decision of the Punjab High Court is binding on this Court. Therefore, it cannot be said that there is no power in the appellate Court to remand the cases when it finds that there is non-compliance of the provisions of Section 313 Criminal Procedure Code I am, therefore, of the opinion that the decisions in Mahinder Singh v. State of Punjab (supra) and Makhan Singh v. State of Punjab (supra), rendered by Single Judges of this Court, are per incuriam & therefore, not binding on me. In the ordinary course, I would have referred the matter to a Division Bench. But in view of the Full Bench decision referred to above, I am not inclined to refer the case to Division Bench. The Supreme Court in Makhan v. State of Punjab, 1971 C.L.J. 1310 held that every error or omission in complying with section 342 Criminal Procedure Code, 1898, does not necessarily vitiate the trial because errors of that type fall within the category of curable irregularities and that the question in each case depends upon the decree of the error or upon whether prejudice has been occasioned or is likely to have occasioned. To the same effect is the decision of the Supreme Court in Tara Singh v. The State, 1951 SCJ 518." 9. The order passed by the learned Additional Sessions Judge Barnala is thus in consonance with the law laid down by this Court in the case of Balvinder Singh v. State of Haryana (supra) and thus, does not call for any interference by this Court in exercise of reversional jurisdiction. No merit. Dismissed. Revision dismissed.