1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No. 2712 of 2008 Date of Decision: 6.10.2009 *** Bakhshish Singh .. Petitioner Vs. State of Punjab .. Respondent With Crl. Revision No. 20 of 2009 Ranjit Singh .. Petitioner Vs. State of Punjab & Ors. .. Respondents CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. G.S. Nagra, Advocate for the petitioner Bakhshish Singh. Mr. A.S. Khinda, Advocate for petitioner Ranjit Singh. Mr. B.S. Sra, Addl. A.G. Punjab *** ARVIND KUMAR, J. The above-referred criminal revisions are being preferred against the common judgment rendered by the learned Sessions Judge, Kapurthala dated 16.9.2008 by virtue of which the judgment delivered by learned trial Court dated 20.1.2007, convicting Bakhshish Singh and Sarup Singh, has been set aside and the matter has been remanded back to the learned trial Court to proceed in accordance with law. The facts of the case are that Niranjan Singh moved an application before the police complaining the offence of cheating and forgery against his brother Sarup Singh and two others namely Bakhshish Singh and Ranjit Singh, alleging the sale of his property by his brother Sarup Singh, in connivance with other two persons by impersonation. It 2 emerges out from the records that seeing the callous approach of the police, the complainant Niranjan Singh got instituted a private criminal complaint in the Court against all the three persons wherein, after recording of preliminary evidence, all of them were summoned to face trial. In the meantime, the police of police station Talwandi Chaudharian also registered FIR No. 69 dated 16.12.2004, under Sections 420, 406, 120-B, 506 IPC and presented the challan against Bakhshish Singh and Sarup Singh. The learned trial Magistrate clubbed the complaint as well as report under Section 173 Cr.P.C., but kept on proceeding against accused Bakhshish Singh and Sarup Singh only, who were booked by the police and ultimately the trial culminated into their conviction under Section 467 read with Section 120-B IPC and they were sentenced accordingly. Thereafter, both of them filed separate appeals before the appellate Court below. When the matter came up for hearing before the appellate Court below, the fact came into light that inadvertently no proceedings have been initiated against Ranjit Singh, who though was summoned by the Court in the privately instituted complaint and the trial was conducted only in respect of two other accused. Observing that this serious lacuna has rendered the whole trial as nullity, the learned appellate Court set aside the judgment of the learned trial Court and remanded the case to it with the direction to proceed ahead in the matter in accordance with law. Dis-satisfied with the same, the instant revision petitions have been preferred by Bakhshish Singh and Ranjit Singh respectively, which are being disposed of by this common order. The grouse of the petitioner Ranjit Singh is that since the learned trial Court was of the view that there is no incriminating evidence against him, therefore, no adverse order was passed against him, but with the passing of the impugned judgment, his rights have been prejudiced that too without affording any opportunity to him and his trial has been ordered. On the other hand, the grievance of petitioner Bakhshish Singh is that once the proceedings in which the petitioner has been held guilty, have been set aside being suffering from illegality, it should have followed his acquittal and the order remanding the case back is not sustainable. I have duly considered the submissions made on behalf of the 3 parties. The operative part of the impugned judgment reads as under:- “16. The learned PP squarely accept that such a miscarriage of justice has certainly resulted in causing immense prejudice to the poor complainant who having been robbed of his property as per his allegations has been given another blow by leaving out the third accused. This manner by which the learned Lower Court has gone about with its duty will not only be rued shock to the complainant but would also shake his faith in the administration of justice. By this the entire proceedings have been rendered into a mistrial and having gone to the very roots of the legal process the error needs to be rectified so as to set the law in its proper recourse to justice. In view of this serious lacuna in the trial being rendered not property and as per the provisions of law setting aside the impugned judgment and necessitate acceptance of both these appeals and remanding the same to the learned trial court with direction to proceed ahead into the matter in accordance with law....” The tenor of the impugned order suggests that a de-novo trial has been ordered by the learned appellate Court below against all the accused. It cannot be forgotten that a de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It should be limited to the extreme exigency to avert "a failure of justice". Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the Appellate Court has plenary powers for re-evaluating or re-appraising the evidence and even to take additional evidence by the appellate Court itself or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice 4 otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting "a failure of justice". The superior Court which orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial Courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the troubles to reach the Court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation. Reference can be made to the case to State of M.P. Vs. Bhooraji & Ors. AIR 2001 (SC) 3372(1). Further, in this context, it is relevant to have a glance over the provisions of Section 465(1) of the Code of Criminal Procedure, which read as under:- “Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby." A reading of the aforesaid section makes it clear that the error, omission or irregularity in the proceedings held before or during the trial or in any inquiry were reckoned by the legislature as possible occurrences in criminal Courts. Yet the legislature disfavoured axing down the proceedings or to direct repetition of the whole proceedings afresh. Hence, the legislature imposed a prohibition that unless such error, omission or irregularity has occasioned " a failure of justice" the superior Court shall not 5 quash the proceedings merely on the ground of such error, omission or irregularity. The term “failure of justice” has to infer from the facts of each case and the Courts should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage. In the instant case, it has not been shown that at any point of time such an objection was raised before the learned trial Court or not? Therefore, the question of re-trial in respect of accused Bakhshish Singh and Sarup Singh needs fresh consideration by the appellate Court below in the light of legal position enunciated above. So far as the plea raised on behalf of petitionr Ranjit Singh is concerned, it has substance in it. Admittedly, he has not faced the trial before the learned Magistrate and it came in the light only when the matter was before the appellate Court below. At no point of time, any request for his summoning was made by the complainant. It is also not clear as to whether there was any incriminating material against him, came up in evidence during trial of others showing his involvement in the offence, which prompted the appellate Court below to order for trial of the present petitioner along with de-novo trial of the other accused. As per the requirements of principles of natural justice, he must have been provided with an opportunity of hearing, before passing any adverse order against him. In view of the discussion above, the order passed by the learned appellate Court below is not sustainable and is accordingly set aside. The matter is remitted back to the appellate Court below with a direction to re- consider the matter afresh after hearing the parties, including petitioner Ranjit Singh and then to pass appropriate order accordingly, in the light of legal as well as factual aspect of the matter, as discussed above, but without being influenced from any observations made by this Court. Photocopy of this order be placed in the connected revision petition. (ARVIND KUMAR) JUDGE October 6,2009 Jiten