CRIMINAL REVISION NO.376 OF 2010 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: DECEMBER 19, 2011 Arvinder Kaur .....Petitioner VERSUS State of Punjab ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? PRESENT: Ms. Ishma Randhawa, Advocate, for the petitioner. Mr. Gaurav Garg Dhuriwala, DAG, Punjab, for the State. **** RANJIT SINGH, J. On an appeal filed by the petitioner to impugn her conviction for offences under Sections 408, 467, 468, 471 IPC etc. , the Appellate Court has remitted the case back to the trial Court to hold a retrial of the petitioner after framing a fresh charge sheet separately in respect of different embezzled amount by bifurcating the period CRIMINAL REVISION NO.376 OF 2010 :{ 2 }: involved and specifying embezzled amount during the said period. The petitioner accordingly has filed this revision to impugn the order passed by the Appellate Court pleading that if the trial Court had wrongly framed a combined charge pertaining to different periods, then the entire proceedings would be vitiated and would have to be set aside, resulting in acquittal of the petitioner. Grievance is that the direction to reframe the charge and to hold a retrial of the petitioner would be illegal, unfair and is a mode which would be impermissible not being conducive to a fair trial. A significant question of law requiring determination, thus, is whether the Appellate Court is justified in directing retrial of the petitioner after 14 years and whether this would be legally permissible mode?. Shortly stating, the prosecution case is that the petitioner alongwith other accused Kulwinder Singh entered into a criminal conspiracy to embezzle a sum of `3,55,324/- while collecting fee and other charges from the students of Shri Guru Arjan Dev Public School, Tarn Tarn by forging documents for the same purpose between a period from April, 1992 and March, 1995. While working in the School, the petitioner was performing duty to collect school fee, tuition fee and other charges from the students by making proper entries in the relevant record of the school. CRIMINAL REVISION NO.376 OF 2010 :{ 3 }: Thereafter she was under duty to deposit the same in the account of school in the Bank of India, Palasaur Branch, Tarn Taran. On checking, it revealed that the petitioner while acting as a Clerk-cum-Cashier, had collected an amount of `19,25,428/- from students of the school between April, 1992 and March, 1995, but had accounted for only `15,70,174/- and, thus, had misappropriated a sum of `3,55,324/-. It is alleged that the petitioner had fabricated the school record and stolen some of the relevant record of the school. The petitioner after trial was convicted and imposed four separate sentences as four challans were presented but the total embezzled amount was mentioned in each of the charge so separately framed for different periods. Against this, the petitioner had filed an appeal whereby the impugned order has now been passed setting- aside the conviction and sentence imposed upon the petitioner with direction to retry the petitioner by framing charges afresh in each case. The Appellate Court has held that the judgment of the trial Court is in clear violation and contravention of mandatory provisions of Section 212 (2) Cr.P.C. and the charges as framed have been held to be defective. It is noticed that the embezzlement of the total amount of `3,55,324/- was allegedly done between a period of April, 1992 and March, 1995. On completion of CRIMINAL REVISION NO.376 OF 2010 :{ 4 }: investigation, four challans were prepared and submitted separately before the court for trial. The charges against the petitioner-accused were framed accordingly in each case and thereafter the trial proceeded. The trial court had framed the charges in four separate cases for the years 1992, 1993, 1994 and 1995. The charges in all the cases are the same and identically worded. The prosecution did not lead evidence separately in each case and the same evidence as recorded was accepted in all the four cases. The petitioner-accused was convicted in each case on the basis of same evidence. The petitioner had accordingly challenged his conviction and the award of sentence by filing appeal before the Appellate Court in these four challans. The Appellate Court has noticed that the trial Court while disposing of all the cases has given the same judgment by considering the same evidence on record in all the cases. The charge in each case was framed for the total amount embezzled. The Appellate Court found that misappropriation was done between a period from April, 1992 and March, 1995, so the allegations of misappropriation were for different years and these offences were not within the same years. Separate challans were presented for each year and it was necessary for the trial Court to have framed charges in each case separately by averring the amount of misappropriation alleged in each year. This was the CRIMINAL REVISION NO.376 OF 2010 :{ 5 }: requirement in terms of Section 212(2) Cr.P.C. This is held to be also necessary to enable the petitioner-accused to understand and explain the facts and circumstances so as to properly defend himself. Accordingly, the judgment passed by the trial court has been set-aside and the case remitted back to the trial court for retrial after framing proper charges. The facts in this case would show that the petitioner had allegedly collected a sum of `47,314/- as a tuition fee in the month of September, 1993 but had entered a sum of `36,540/- in the cash book, thus, leading to misappropriation of `10,774/- In the month of October, 1993, the petitioner had collected a sum of `46,384/- but instead entered `37,082/- in the cash book, thus, misappropriating `9,302/-. Likewise, in the month of December, 1993, the petitioner allegedly misappropriated a sum of `7,548/- and in January, 1994 a sum of `11,147/-. In February, 1994, the petitioner allegedly collected `1,04,899/- and misappropriated a sum of `22,095/-. The amount allegedly embezzled during the month of April, 1994 to August, 1994 was `27,434/-. It is in this manner that the total amount embezzled was worked out and alleged against the petitioner. Instead of framing charge for the amount embezzled in each year, the trial court has mentioned total embezzled amount in each charge. Though each instance of CRIMINAL REVISION NO.376 OF 2010 :{ 6 }: embezzlement was separate but those done in a year could be charged together as per Section 212 (2) Cr.P.C. The Appellate Court has found that the trial Court could have clubbed the charges and given a single judgment in all cases by giving combined observations if the offences of the same nature had been committed within the same year. The trial court is alleged to have framed a charge in a mixed manner by framing the same charges by treating all the offences as an offence for the same period. Accordingly, the impugned order has been passed issuing direction to reframe the charges and to retry the petitioner and to pass a separate judgment in each case. The grievance of the petitioner is that the entire trial of the petitioner would stand vitiated on account of a defective charges as framed and she cannot be made to suffer the consequence of defective charge by requiring her to face a retrial having already faced the agony of this criminal prosecution for a period for over 14 years. The alleged embezzlement was between the period from 1992 and 1995 and the trial court passed the judgment convicting the petitioner and sentenced her in four different challans on 4.10.2007. The FIR was lodged on 6.12.1995. It is, thus, clear that the petitioner has faced the trial for a period of nearly 12 years. The Appellate Court has passed the impugned judgment on 27.7.2009. Thus, the CRIMINAL REVISION NO.376 OF 2010 :{ 7 }: petitioner has been directed to face retrial after a period of 14 years during which she has all along undergone the rigors of this criminal prosecution. Would it, thus, be fair to direct retrial of the petitioner on the ground that the trial court was amiss in framing a proper charge and the trial took place on the defective charges? Section 212 Cr.P.C. provides that the charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any), in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. The object of this provision is to ensure that reasonably sufficient notice and information is given to the accused with regard to matter he is charged. Section 212 (2) Cr.P.C. thereafter provides that when the accused person is charged with criminal breach of trust or dishonest misappropriation of money or other movable property, it is sufficient to specify the gross sum or as to describe the movable property in respect of which the offence is alleged to have been committed, and the dates between which the said offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge for one offence within a meaning of Section 219 Cr.P.C. There is then a proviso which states that time CRIMINAL REVISION NO.376 OF 2010 :{ 8 }: included in the first and last of such dates shall not exceed one year. As per the Appellate Court, the charge framed in this case was in violation of Section 212(2) Cr.P.C. as the complete embezzled amount for three years was mentioned in the each charge so framed. If each charge had mentioned the amount embezzled within a period of one year, then that would have met the requirement of proviso to Section 212 (2) Cr.P.C. Whether these charges as framed were defective or whether the trial would be vitiated on account of this defect apparently has not been minutely analysed by the Appellate Court. Section 215 Cr.P.C. may also be relevant in this regard. This section provides that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. Petitioner may not have specially so pleaded, but it is so submitted that the petitioner was misled by this error. It may have to be seen if this error in framing the charges has, in fact, led to any prejudice to the petitioner and thereby has resulted in failure of justice. Section 218 Cr.P.C. requires that a separate charge be framed for every distinct offence. The Magistrate CRIMINAL REVISION NO.376 OF 2010 :{ 9 }: may try together all or any number of charges framed against such person, where the accused person so desires and the Magistrate is of the opinion that such a person is not likely to be prejudiced thereby. As per Section 219 Cr.P.C., three offences of the same kind committed within a year may be charged together. This Section reads as under:- “219. Three offences of same kind within year may be charged together.- (1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three. (2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian penal Code (45 of 1860) or of any special or local law; Provided that, of the purposes of this section, an offence punishable under section 379 of the Indian penal code (45 of 1860) shall be deemed to be an offence of the same kind as an offence punishable under section 380 of the said Code, and that an offence punishable under any section of the said Code, or of any special or local law, CRIMINAL REVISION NO.376 OF 2010 :{ 10 }: shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence. Thus, when a person is accused of more offences than one of the same kind committed within a space of 12 months from the first to the last of such offences whether in respect of the same person or not, may be charged with and tried at one trial or any number of them not exceeding three. Thus, instances of three different embezzlements within a period of one year could be charged and tried together in terms of Section 219 Cr.P.C. Even as per Section 212(2) Cr.P.C., all the embezzled amount within one year could have been charged together. The effect of all these provisions was required to be considered while setting aside the judgment passed by the trial Court and while directing retrial of the petitioner with direction to frame the charges afresh. The Appellate Court also did not examine this case in the light of Section 464 Cr.P.C. Section 464 Cr.P.C.regulates the effect of omission to frame, or absence of, or error in the charge. It provides that no finding, sentence or order by a court of competent jurisdiction shall be deemed to be invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of CRIMINAL REVISION NO.376 OF 2010 :{ 11 }: charges, unless, in the opinion of court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. The plea by the counsel for the petitioner is that the defect in framing the charges would not be curable under Sections 464 and 465 Cr.P.C. Reference is made to the case of Deep Chand Vs. State of Haryana, 1993 (3) RCR (Criminal) 293 in support. The Hon'ble Supreme Court in Kadiri Kunhammad Vs. The State of Madras, AIR 1960 SC 661 has held that charge of criminal breach of trust framed in contravention to proviso to Sec.222(2) Cr.P.C.(now 212(2) Cr.P.C.) is merely an irregularity which can be cured both under Sec.225 Cr.P.C.(now 215 Cr.P.C.) and Section 537 Cr.P.C.(now Section 464 Cr.P.C.) when the accused is not prejudiced. The important aspect, therefore, to be examined in this case is to find if the accused is prejudiced or not by the manner in which charges were framed. In Kadiri Kunhammad's case (supra), the prosecution had failed to split up into two sub counts in a charge and it is observed that it can not be regarded as introducing a fatal infirmity in the validity of trial. The court had, however, noticed that this argument was not of misjoinder. Accordingly, it is observed that such an irregularity can be cured under Section 225 Cr.P.C. (old) and Section 537 Cr.P.C.(old) provided no prejudice has been thereby caused to the appellant. The CRIMINAL REVISION NO.376 OF 2010 :{ 12 }: Appellate Court has not examined the case in terms of these provisions as well. No doubt, as per Section 464(2)(b) (old Section 537 Cr.P.C.), in the case of an error, omission or irregularity in a charge, a new trial can be directed but effect of doing so after 14 years was required to be considered while issuing any such direction. Besides, it was to be seen if any prejudice has been caused to the accused- petitioner. There is some substance in the submission made by the counsel for the petitioner that the petitioner cannot be made to suffer due to the defects in the charges as framed by the trial Court and if the petitioner has been made to face a trial on defective charge or charges, then it would be unfair at this stage to direct his retrial after more than 14 years. This plea certainly would require examination to see if it would be fair to order retrial at this stage. The power of the Appellate Court to order retrial may not be in any dispute. Section 386 Cr.P.C. does make a provision in this regard, whereby the Appellate Court in an appeal from conviction can reverse finding and sentence, can acquit or discharge the accused or order his retrial by court of competent jurisdiction, subordinate to such Appellate Court. Retrial, however, should not be ordered where the accused has already been subjected to prosecution for a long time. Reference in this regard can be made to the case of Bishan Singh and others Vs. The State CRIMINAL REVISION NO.376 OF 2010 :{ 13 }: of Rajasthan, 1973 Cr.L.J.1079. In this case, it is observed that simply because the trial Court has omitted to do its duty in not framing correct charges in accordance with law, the accused who had already faced agony of a prolonged criminal proceeding including detention in jail can not be subjected to further harassment by the Appellate Court by ordering retrial but must be acquitted. As held in Machander Vs. Hyderabad State, 1955 Cri.L.J. 1644 justice is not one sided. It has many facets. While it is incumbent on the Court to see that the guilty persons do not escape punishment, but it is even more necessary to see that persons accused of crimes are not indefinitely harassed. The scales of justice have to be kept on an even balance whether for the accused or against him, whether in favour of the State or not. Retrial of trivial offences after a long lapse of time was again held not justified. Where an order of acquittal was found vitiated by serious error of law, but the proceedings against the accused had continued for 10 years keeping him in suspense, then retrial was not ordered as a fresh trial was not found to be conducive to justice. Similarly, where proceedings were continued for 3-1/2 years during which the accused remained under suspense about the outcome, it was held that it would not be conducive to justice if retrial was ordered. In these circumstances, the order directing a retrial in this case may appear unfair. CRIMINAL REVISION NO.376 OF 2010 :{ 14 }: Thus, there may not be much need to test the validity of the charges. The order directing retrial apparently would not sound conducive to justice after the lapse of such a long period. One thing, ofcourse, seems certain that this manner of framing charges by alleging embezzlement of entire total amount in each charge can not be justified in any way. This may reveal a misjoinder of charges. This was not so in the case of Kadiri Kunhammad (supra). This is rather a case where the petitioner ought to have been misled leading to causing him a prejudice. The charges as framed would allege embezzlement of total amount over `3.00 lacs in each charge in each year which is not the case of prosecution even. This error in framing the charges ought to have been corrected in a legal or appropriate manner if otherwise permissible. The finding, as such, can not be sustained. Evidence was recorded in one case. It was taken and accepted in the other cases. Judgment is also one and repeated in the other cases. This may also not seem justified under any provision of law. Retrial at this stage under these facts, however, would not be just and fair as per the law as noticed above. The petitioner was clearly misled in defending herself. In view of the above, the order directing retrial of the petitioner and impugned through the present revision petition is set-aside. Since there is an apparent error in the CRIMINAL REVISION NO.376 OF 2010 :{ 15 }: manner of holding the trial, in recording the evidence and also in framing the charges, which is found to have caused prejudice to the petitioner, the petitioner would deserve to be acquitted as order of retrial would only lead to further indefinite harassment. The finding of the trial court has been set-aside by Appellate Court while directing retrial of the petitioner. As a result, this revision is allowed, the conviction and sentence are set-aside and the petitioner is acquitted. Because of a careless manner of holding trial and framing charges in this case, the petitioner accused of serious case of embezzlement has been let off the hook. Trial Courts ought to exercise care and caution in conducting trial. The petition is accordingly allowed in above terms. December 19, 2011 ( RANJIT SINGH ) ramesh JUDGE