IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 1 of 2007 alongwith 2/07 and 3/07 Reserved on: 23.5.2008 Date of decision: 14.7.2008 State of H.P Petitioner. Versus Amar Dutt and another Respondent. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 Yes. For the petitioner: Mr. Vivek Singh Thakur, Addl.Advocate General For respondent No.1. Mr. B.S.Chauhan, Advocate. For respondent No.2. Mr. Satyen Vaidya, Advocate. Deepak Gupta, J. These three revision petitions are being disposed of by one judgement since an identical question of law is involved in all three cases. Briefly stated, the facts of the case are that the H.P.Horticulture Produce Marketing and Processing Corporation (HPMC) has its registered office at Nigam Vihar, Shimla. It has its branches all over the country. Accused Amar Dutt Sharma was the Branch Manager of the branch of Secundrabad. Accused No.2 Y. Saibaba was working in the said branch as junior accountant. 1 Whether the reporters of the local papers may be allowed to see the Judgment? According to the prosecution, the branch at Secundrabad was under the control of the regional office of HPMC at Madras. The prosecution version is that both the accused had misappropriated and embezzled funds of the HPMC amounting to Rs.2500/- in the year 1991-92, Rs.1,11,051/- during the year 1992-93 and Rs.91,714/- during the year 1993-94. F.I.R No.3 of 1995 was registered under Sections 409, 420, 467, 468, 471, 120-B IPC and Section 13 of the Prevention of Corruption Act, 1988 against the accused persons with the PS ACZ Shimla on 16.5.1995. There separate challans for the respective years were put up and three criminal cases were registered against the accused. In all the three cases, the accused were summoned. They appeared in the Court. Charges were framed against the accused on 30.10.2003. The prosecution examined as many as 13 witnesses in support of its case and the prosecution evidence was closed on 23.5.2006. On the same date, one of the accused Shri Y.Saibaba filed applications in all three cases praying that the matter be dropped since the Court has no jurisdiction to hear the matter. These applications were disposed of by identical impugned orders dated 23.9.2006, whereby the learned Special Judge has held that the offence had taken place in Secundrabad and therefore, the Court at Shimla had no jurisdiction to try the case. He has ordered return of the challans to the police for presenting it to the court having jurisdiction to entertain the matter. The accused have been discharged. These orders are under challenge in this Court. On behalf of the State two fold arguments have been raised. Firstly, that the trial Court has not considered the provisions of Section 181 (4) Cr.P.C. According to the State, the property which has been misappropriated by the accused was to be accounted for by the accused persons at the Head Office at Shimla and therefore, the Courts at Shimla have jurisdiction to try the matter. Secondly, it is contended that the trial having reached the final stage, it would not be in the interest of any person that the trial should commence again and that therefore, the Court should not have passed the order discharging the accused. Shri B.S.Chauhan appearing on behalf of the other co-accused Amar Dutt has supported the case of the State. According to him his client has faced trial in the trial Court for more than five years and therefore his client will suffer irreparable harm and injury if the entire proceedings are quashed and fresh challan is filed in Secundrabad as directed by the learned Special Judge. First, I shall take up the question as to whether the Court at Shimla has jurisdiction to try the office or not. Section 181(4) Cr.P.C reads as follows:- “Any offence of Criminal misappropriation or of Criminal breach or trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person.” It is urged on behalf of the State that since the Head Office of the Company is at Shimla and the accounting of the Company has to be done at it’s head office at Shimla, the offence could be tried in the Court at Shimla since the accused were required to account for the money at Shimla. A bare perusal of Section 181(4) Cr.P.C shows that in any case of criminal breach of trust or criminal misappropriation, the Court where the offence is committed, the Court having jurisdiction of the area where the part of the property was received or retained and the Court where the accused was required to return or account for the misappropriated property would have jurisdiction to entertain the complaint. The question which arises for consideration is whether the accused were required to render or account for the property at Shimla or not. The prosecution has failed to produce before me any material to show that there was any requirement that the accused was required to render accounts at Shimla. The HPMC is a large Corporation having offices all over the country. Since, its registered head office is at Shimla the final accounting has to be done at Shimla. However, this does not mean that the accused were required to render accounts at Shimla. Even if the prosecution story is taken at its best, the accused were only required to render accounts at Madras and from Madras the regional office had to further send the accounts to Shimla. There is nothing on record to show that the accused were required to account for the money received by them at Shimla. The Allahabad High Court in Hira Lal Chaudhary and others vs. State, 1956 Allahabad 619 held as follows:- “Here no part of the offence was committed at Bareilly so far as criminal breach of trust is concerned. According to my view the non-accounting is no part of the criminal breach of trust. It is really the result or consequence resulting from the criminal misappropriation. Its effect might either be loss to the firm or may result in non accounting, but that would not make it an ingredient of the offence itself.” The Bombay High Court in Anthony D’Mello and others vs. Joseph Mathew Pereira , AIR 1937 Bombay 371 dealt with a matter wherein the accused was a traveling salesman of the Company. He sold some goods of the Company at Karachi. He did not produce at Bombay the money received by him for the goods sold. The Court held that when there was uncertainty as to where the offence has taken place the Court at Bombay where he was to account for the goods would have jurisdiction to proceed with the matter. In State vs. Gulabchand Swarupchand and others, AIR 1962 Bombay 78, the complainant who was the sole trustee of a trust having its registered office at Bombay had sent money from Bombay to the accused for repairs and renovations of the temples in Rajasthan. The accused only spent a fraction of the amount and committed criminal breach of trust in respect of the remainder. A complaint was filed at Bombay on the ground that the accused was required to account for the amounts given to him at Bombay. The Bombay High Court rejected this plea on the ground that there was no contractual relationship between the complainant and the accused and no legal liability to render accounts by the accused to the complainant. The learned trial Court has relied upon the judgement of the Allahabad High Court reported in M/s Hanuman Prasad Ojha and Ors. Vs. State of West Bengal and others, 2006 Cr. Law Journal 2597. The facts of the said case are that there was an arrangement between the complainant Company and the accused, whereby the accused used to act as key man of the Company and used to apply for allotment of railway rakes for the complainant. He used to pay indent money for registration of rakes etc. All the work of arrangement and indenting was done in the State of Uttar Pradesh. According to the complainant, the main accused in connivance with the other accused persons misappropriated huge amounts by preparing false and forged documents of the Company. The complaint was filed at Kolkata on the ground that the accused was required to account for the money at Kolkata. The Court held thus:- “According to us, law should not be read in piecemeal manner but as a whole. Many other sections as discussed above have their force to make a sense of jurisdiction. Jurisdiction is static when falling in the jurisdiction is variable. The particular sub- section, as above, has two parts as follows:- (a) offence may be inquired into or tried by a Court within whose local jurisdiction the offence was committed; Or (b) offence may be inquired into or tried by a Court within whose local jurisdiction any part of the property which is the subject of the offence was received or retained or required to be returned or accounted for; Or (c) both. According to us, both the parts are disjunctive from each other. It can be conjunctive when both the situations are available. None of the stages under part (b) arose as yet to say about ‘accounted for’. Therefore, that cannot be the ingredient for the present dispute i.e. the offence under criminal terminology. There is a thinner line in between breach of trust and criminal breach of trust. But those are so intermingled legislature has provided wide corpus. The criminal breach of trust is complete where it was occurred. It is not dependable upon the consequential effect under Section 179 Cr.P.C. It was held by the Full Bench of Bomaby High Court in AIR 1930 Bom 490 (F.B.) (In re: Jivandas Savchand) that pecuniary loss of one is not the essence of the offence of criminal breach of trust. The loss may or may not occur. Section 179 Cr.P.C. speaks about consequence of the offence and not some collateral by product of the offence. Factually it was held therein as follows:- “that the offence of criminal breach of trust was completed in Rangoon and that the obligation of accused No.1 to render accounts in Bombay and to send the accounts to Bombay did not give the Bombay Court jurisdiction to try the offence.” Therefore, our observation is crystallized to the interference that mere submission of accounted for in Kolkata can not give any jurisdiction therein.” The aforesaid authorities clearly indicate that normally the offence of criminal breach of trust should be tried by the Court having jurisdiction over the area where it is committed. However, where it is not clear as to where the offence was committed then the Court having jurisdiction of the area where the accounting would be done would also have jurisdiction. In the present case, as I have already held above, the accused was not required to account for the money at Shimla. Therefore, there can be no manner of doubt that in the present case no part of the offence was committed at Shimla. The next question which arises is whether the trial Court should have discharged the accused at a stage when the trial was virtually over. All the prosecution evidence had been examined and only the statements of the accused under Section 313 Cr.P.C and evidence in defence, if any, had to be examined. Sh. Satyen Vaidya, appearing on behalf of the accused Shri Y.Saibaba has submitted that under Section 171 of the Code of Criminal Procedure ordinarily an offence has to be tried by the Court within whose local jurisdiction it was committed. He submits that Section 461, 462 and 465 of the Code of Criminal Procedure have no applicability to the present case and will apply only to proceedings in appeal. On the other hand, Shri B.S.Chauhan, appearing on behalf of the other co-accused Amar Dutt and the learned Additional Advocate General have contended that once the entire trial has virtually concluded and the matter was being tried by the Special Judge, who is duly empowered to try matters under the Prevention of Corruption Act, the Special Judge should not have discharged the accused at this belated stage. It is prayed that this Court should set- aside the order of the learned trial Court and permit the trial Court to go on. According to the learned Advocate General no prejudice has been caused to the accused and therefore at this stage the matter should not be sent back. Mr. Vivek Singh Thakur, learned Additional Advocate General and Mr. B.S.Chauhan, learned counsel for the co-accused Amar Dutt also urged that in view of the provisions of Section 462 of the Code of Criminal Procedure the trial in the circumstances of the case should be permitted to continue at Shimla. They also rely the provisions of Section 465 of the Cr.P.C. Sections 462 and 465 of the Cr.P.C. read as follows:- “462. Proceeding in wrong place. - No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice. 465. Finding or sentence when reversible by reason of error, omission or irregularity. – (1) 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. (2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.” The apex Court in Mangaldas Raghavji Ruparel vs. State of Maharashtra and another, AIR 1966, Supreme Court 128 held as follows:- “Apart from that the mere fact that proceedings were taken in a wrong place would not vitiate the trial unless it appears that this has occasioned a failure of justice (See S.531, Cr.P.C.).” In State of H.P. vs. Gita Ram (2000) 7 Supreme Court Cases 452, the apex Court was dealing with a matter under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. In that case, the accused was alleged to have committed offences punishable under Section 376 IPC and Section 3 of the Scheduled Casts and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The magistrate committed the case to the Sessions Court, which was designated as the Special Court under the Act. Charge was framed under Section 376 IPC and after trial the accused was convicted. The High Court set-aside the conviction on the ground that the trial Court had no jurisdiction since it was only a Special Court for the purpose of trying the cases under the Scheduled castes and the Scheduled Tribes (Prevention of Atrocities) Act. The apex Court held as follows:- “Sessions Court would continue to be a Sessions Court even if it was designated as a Special Court.” Further, the apex Court held as follows:- “We are distressed to note that learned Single Judge was not told by the government advocate of the fallout of such a view, if taken by the Single Judge, that it means all the witnesses once examined in full should be called back again, and the whole chief- examination, cross-examination, re- examination and questioning of the accused under Section 313 of the Code, hearing arguments, then examination of defence witnesses further, again final arguments to be heard and preparation of judgement once again. The very object underlined in Section 465 of the Code is that if on any technical ground any party to the criminal proceedings is aggrieved he must raise the objection thereof at the earliest stage. If he did not raise it at the earliest stage he cannot be heard on that aspect after the whole trial is over.” In State of Madhya Pradesh vs. Bhooraji and others, AIR 2001 Supreme Court 3372, the apex Court held as follows:- “The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on account of the declaration of the legal position made by Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act. 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 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 over look 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.” In V.K.Puri vs. Central Bureau of Investigation, (2007) 6 Supreme Court Cases 91 the accused was an Officer working in the Custom Department. A case was registered against him under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988. The accused contended that since he had never been posted at Delhi during the relevant period, the Court at Delhi had no jurisdiction to decide the matter. The apex Court after dealing with the entire statute law as well as the case law held as follows:- “Each court, where a part of the offence has been committed, would, therefore, be entitled to try an accused. The 1988 Act does not bar application of Section 178 of the Code of Criminal Procedure. If application of the provision of Section 178 of the Code of Criminal Procedure is not barred, the fact that the appellant has a part of his known sources of income at Delhi, in our opinion, would confer jurisdiction upon the Delhi Courts. It is one thing to say that only the Special Courts will have jurisdiction to try the offence but for the purpose of arriving at a decision as to the Special Judge of which place shall have the requisite jurisdiction, the situs of the property may or may not have any relevance. Once the situs of the property is held to have relevance for the purpose of ascertaining his known source of income and consequent acquisition of disproportionate assets, in our opinion, the Special Judge concerned will also have the requisite jurisdiction to try the case. For the said purpose, purport and object for which the 1988 Act has been enacted must be taken into consideration. The doctrine of purposive construction therefor must be taken recourse to.” In CBI, AHD, Patna vs. Braj Bhushan Prasad and others, AIR 2001 Supreme Court 4014, the apex Court was considering a similar question. It held thus:- “Section 4 of the PC Act relates to the jurisdiction of the court for trial of offences under that Act. The first sub-section of section 4 declares that notwithstanding anything contained in the Code or in any other law, the offences punishable under the PC Act can be tried "only" by the special judge, appointed under section 3(1) of the PC Act. Now sub-section (2) of section 4 is the important provision and it is extracted below: "Every offence specified in sub-section (1) of section 3 shall be tried by the special Judge for the area within which it was committed, or, as the case may be, by the special judge appointed for the case, or, where there are more special judges than one for such area, by such one of them as may be specified in this behalf by the centra! government." Thus, the only court which has jurisdiction to try the offences under the PC Act is the court of special judge appointed for the areas within which such offences were committed. When such an offence is being tried sub-section (3) enables the same special judge to try any other offence which could as well be charged against that accused in the same trial. So the pivot of the matter is to determine the area within which the offence was committed. For that purpose it is useful to look at section 3(1) of the PC Act. It empowers the government to appoint special judge to try two categories of offences. The first is, "any offence punishable under this Act" and the second is, "any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified" in the first category. So when a court has jurisdiction to try the offence punishable under the PC Act on the basis of the place where such offence was committed, the allied offences such as conspiracy, attempt or abetment to commit that offence are only to be linked with the main offence. When the main offence is committed and is required to be tried it is rather inconceivable that jurisdiction of the court will be determined on the basis of where the conspiracy or attempt or abetment of such main offence was committed. It is only when the main offence was not committed, but only the conspiracy to commit that offence or the attempt or the abetment of it alone was committed, then the question would arise whether the court of the special judge within whose area such conspiracy etc. was committed could try the case. For our purpose it is unnecessary to consider that aspect because the charges proceed on the assumption that the main offence was committed. The above acts were completed in the present cases when the money has gone out of the public treasuries and reached the hands of any one of the persons involved. Hence, so far as the offences under section 13(1)(c) and section 13(1)(d) are concerned the place where the offences were committed could easily be identified as the place where the treasury concerned was situated. It is an undisputed fact that in all these cases the treasuries were situated within the territories of Jharkhand state. Thus, when it is certain where exactly the offence under section 13 of the PC Act was committed it is an