CRIMINAL REVISION NO.993 OF 2007 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: OCTOBER 23, 2008 Tarun Kumar etc. .....Petitioners VERSUS State of Haryana ....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: Mr. R. S. Rai, Sr.Advocate with Ms. Meenakshi Dogra, Advocate, for the petitioners. Mr. Yashwinder Singh, AAG, Haryana, for the State. **** RANJIT SINGH, J. This order will dispose of two Criminal Revision Nos.993 of 2007 (Tarun Kumar etc. Vs. State of Haryana) and 979 of 2007 (Sneh Prabha and another Vs. State of Haryana). The petitioners are aggrieved against the order passed by the first Appellate Court ordering their re-trial, though some of them were held guilty for an offence under Section 498A/34 IPC. Petitioner Tarun Kumar was ordered to undergo simple imprisonment for six months and to pay a fine of Rs.5000/- whereas Smt.Raj Rani and Narain Dass, the remaining two petitioners in Civil Revision No.993, were only directed to pay fine of CRIMINAL REVISION NO.993 OF 2007 :{ 2 }: Rs.5,000/- each. Sneh Lata and Rajni @ Rozi, petitioners in Civil Revision No.979 of 2007, were acquitted of the charges. The facts noticed in brief are that Bimla Kumari daughter of Asha Nand had filed a complaint against her husband, Tarun Kumar and other petitioners. The complainant was married to Tarun Kumar on 12.2.1991. As per the allegation, two months after the marriage, the petitioners had started giving taunts to the complainant for bringing insufficient dowry. Allegations of raising a demand and for bringing sub- standard articles were also made. Petitioner, Tarun Kumar, was alleged to have given beating to his wife at the instance of his mother and sister. Though a child was born out of this wedlock, but still the couple could not come to terms and the complainant was ultimately forced to leave the matrimonial house. Though she was again sent back on the intervention of father in law and sister of the complainant but still the things did not improve and ultimately the FIR was lodged. The prosecution examined complainant, Bimla and Mool Chand in support of its case. The petitioners, when given a chance to lead evidence in defence, did not produce any witness. On the basis of evidence so produced, the Trial Court held petitioner, Tarun Kumar, Smt.Raj Rani and Narain Dass guilty of the charge and sentenced as already noticed. They accordingly filed an appeal against the order of their conviction and the sentence. The Appellate Court found infirmity in the manner in which statements of the accused were recorded under Section 313 Cr.P.C. It is noticed that even the date on which these statements recorded is not mentioned. The defence of the petitioners were also closed by an order but no reasons had been assigned in this regard. The application was filed by the Public Prosecutor for leading additional evidence under Section 311 Cr.P.C. but was declined. It is further noticed CRIMINAL REVISION NO.993 OF 2007 :{ 3 }: by the Appellate Court that various circumstances and facts coming in evidence against the accused-petitioners were not put to them while recording their statements under Section 313 Cr.P.C. Finding this infirmity to be incurrable and which has resulted in prejudice to the petitioners, the judgment under appeal was set-aside and the case was remanded back to JMIC, Gurgaon, for disposing it afresh in accordance with law. While ordering re-trial of the petitioners, directions have also been given to grant two opportunities to the prosecution to produce its remaining evidence. The Court has further been directed to record the statements of the accused under Section 313 Cr.P.C. and then to grant opportunity to lead the evidence in defence. It is to impugn this order that the petitioners have filed two revision petitions noted above. The petitioners who were convicted of the offence under S3ectiion 498A IPC have a grievance that order of their re-trial, whereby opportunities had been granted to the prosecution to lead additional evidence without there being any appeal filed by the State to impugn their conviction would certainly not be fair and would lead to serious prejudice to the case of the said petitioners. It is further pleaded that infirmity in the proceedings on account of circumstances and evidence having not been put to the petitioners would be incurrable and can not be ordered to be cured in the manner as directed by the Appellate Court. On the other hand, petitioners in Criminal Revision No.979 of 2007 would have a grievance that their re-trial could not have been ordered as there was no appeal filed by the State against the order of their acquittal. In this context, it is required to be seen if the order of re-trial of petitioners, who were convicted and of those who are acquitted without there being any appeal against the said order, could be directed or not. This Court has recently dealt issue relating to re-trial while CRIMINAL REVISION NO.993 OF 2007 :{ 4 }: deciding Criminal Revision No.1339 of 2007 (Dr.S.Mohan Vs. The State of Haryana), which is decided on 26.9.2008. It is held that where an essential material which is not put to an accused and leads to prejudice his trial, then such a piece of evidence or material can not be used against him for basing his conviction. It was further observed that if the error is minor irregularity then it may not go to vitiate the trial. However, where incriminating circumstances appearing in evidence is such which is material and the same is not put to the accused, then it would certainly lead to prejudice. Commenting about the course which would then be available with the Court to deal with such a situation, which is an issue in the present case, it is held that it will not be fair to the accused to order his re-trial specially when he has already faced a protracted trial. Besides, it is observed that this mode if adopted, would go to fill in the lacuna in the prosecution case, which would be more pronounced in the present case where even without there being any prayer by the State, the prosecution has been allowed to lead additional evidence. By referring to number of judgments, it is observed that the courts have always taken into consideration the delay in conclusion of criminal trials while deciding about the direction to order re-trial of any accused person. In the case of Makhan Jivan and others Vs. State of Gujrat, AIR 1971 Supreme Court 1797, the effect of non-compliance with the provisions of Section 342 Cr.P.C. (now Section 313 Cr.P.C.) is considered. It is observed in this case that it is not sufficient compliance with the Section to generally ask the accused that having heard the prosecution evidence what he has to say about it. He must be questioned separately about each material circumstance which is intended to be used against him. The whole object of this Section is to afford the accused a fair and proper opportunity of explaining the circumstances which appear CRIMINAL REVISION NO.993 OF 2007 :{ 5 }: against him. It is to be noted that every error or omission with the requirement may not necessarily vitiate the trial. Error of the type which fall within the category of curable irregularities may not vitiate the trial and further the question whether the trial has been vitiated depends in each case upon the degree of error and upon the prejudice that has caused or is likely to have been caused to the accused. In this case, the evidence appears to be vital and not putting the same to the petitioners would certainly cause them prejudice. The appellate Court has found it so and has set aside the conviction and the sentence awarded to the petitioners. In Makhan Singh versus State of Punjab 1992 (2) RCR 109, it is held that allowing the prosecution after remand of case to record the statement of the accused would allow the prosecution to fill in lacuna, which legally can not be done. Observations are:- “Here, although it was put to the accused that he had been secured on the spot and that from the jhola carried by him poppy husk weighing 5 kilograms was recovered. But it was nowhere put to him that on seeing the police he had made good his escape after throwing the jhola containing the contraband property and that he was subsequently arrested on Ist December, 1984. This lapse on the part of the trial Magistrate would be violative of the guarantee of personal explanation given to an accused person under Section 313 Cr.P.C. Hence, conviction of the petitioner is unsustainable and, therefore, has to be set aside on this ground alone. Remanding the case back to the learned trial Magistrate for re- recording the statement of the accused under Section 313 Cr.P.C. would tantamount to allowing the prosecution to fill in CRIMINAL REVISION NO.993 OF 2007 :{ 6 }: the lacuna which could not be legally done.” Similar view is taken by this Court in the case of Shyam Lal versus State of Haryana, 1986 (1) R.C.R. (Criminal) 555. The order remanding the case back for retrial was held unjustified on the ground that it would lead to allowing the prosecution to fill in the lacuna in its case. What had further weighted with the Court was that four years had elapsed since the date of occurrence and the order remanding the case back for trial would further prolong the trial and accordingly retrial was not permitted. In Sardul Singh versus The State of U.T. Chandigarh 1986 (2) RCR 409, the impugned order remanding the case for trial was set aside when more than six years had elapsed after initiation of the prosecution. The Court found it not conducive and in the interest of justice to order retrial. This was also a case where material facts were not put to the accused under Section 313 Cr.P.C. Hon'ble Supreme Court in Machander versus the State of Hyderabad 1956 The Punjab Law Reporter 163 did not remand back the case on the ground that some material questions were not put to the accused while being examined under Section 342 Cr.P.C. now 313 Cr.P.C, when it found accused was on trial for 4-1/2 years. The Court observed as under:- “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 of the 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 ½ years. We are not prepared to keep persons who are on trial for their CRIMINAL REVISION NO.993 OF 2007 :{ 7 }: 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. They must be given a fair and impartial trial and while every reasonable latitude must be given to those concerned with the detection 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 guilty, where the error is purely technical, the forces that are arrayed against the accused should no more be permitted in special appeal 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 in the lower courts. The scales 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.” Thus as per the Supreme Court what is required to be seen is that accused person is not indefinitely harassed and he must be given an impartial trial and only except where the error is purely technical, the forces against the accused should not be permitted to repair the effect of their bungling. It has also been noticed with much justification that the accused can also then seek permission to repair the gaps left in his defence which he could and ought to have made good in the lower Court. It is in this context observed that the scales of justice must be kept on an even balance whether against or in favour of the accused or State. CRIMINAL REVISION NO.993 OF 2007 :{ 8 }: Coming to the Criminal Revision No.979 of 2007, it is seen that there was no appeal pending before the Appellate Court against the acquittal of Saneh Lata and Rajni @ Roji. Accordingly, no direction for re- trial of both these petitioners, who stood acquitted by the Trial court could possibly be issued. The impugned order would lead to re-trial of these petitioners as well. This course would be totally impermissible in law. The precedent, if any, needed in this regard, can be had in the form of State of West Bengal Vs. Laisal Haque and another etc., AIR 1989 Supreme Court 129. It is held in this case that where out of several accused some are acquitted and convicted accused preferred an appeal against their conviction and no appeal is preferred by the State, the Court could neither alter acquittal nor there be splitting up of the trial. Re-trial directed by the High Court in this case was accordingly held not sustainable as it would amount to re-trial de-novo against all the accused. In this case out of 42 accused, the Sessions Judge had acquitted 25 and the accused convicted by the Sessions Judge had preferred an appeal against their conviction but no appeal was preferred by the State against the persons acquitted. The Hon'ble Supreme Court, while setting-aside the order of re-trial passed by the High Court, observed as under:- “10..........It failed to appreciate that in an appeal by the respondents under S.374 (2) of the Code, the order of acquittal passed by the learned Additional Sessions Judge as against the 26 other accused could not be interfered with. The High Court also failed to appreciate that there cannot be a piecemeal trial. The retrial directed by the High Court must necessarily revise the prosecution and must result in a trial de novo against the 42 accused. The 26 other accused acquitted by the learned Additional Sessions Judge were not impleaded CRIMINAL REVISION NO.993 OF 2007 :{ 9 }: as parties to the appeals before the High Court. In the absence of an appeal preferred by the State Government against their acquittal, the High Court could not under S.386 (b) on an appeal by the respondents against their conviction alter the acquittal nor can there be a splitting up of the trial.” The situation before me seems to be identical to the one dealt by the Hon'ble Supreme Court in Laisal Haque's case (supra). Here also, no appeal was filed against the two petitioners in this revision petition, who were acquitted by the Trial Court. The Appellate Court has set-aside the acquittal and had directed re-trial from the stage where prayer for examining two prosecution witnesses was pending. The prosecution has been given two opportunities to produce its remaining evidence and thereafter the accused-petitioners are to enter their defence and their statements under Section 313 Cr.P.C. Is to be recorded. The petitioners are to be given further opportunity to lead evidence in defence. Thus, re- trial of those accused persons has also been ordered who were acquitted by the Trial Court. There was no appeal filed by the State against their acquittal. This course, thus, is clearly impermissible in terms of the law as afore-mentioned. In State of Karnataka Vs. Narsa Reddy, AIR 1987 Supreme Court 2104, the splitting up of trial was held to be not permissible. The impugned order passed against the petitioners, as such, can not sustain on this short ground. Reference here may also be made to the case of Jadayandi and another, AIR 1963 Madras 83. This Court in Chander Bhan Vs. Devi Dass and another, 1975 Cri.L.J. 1003, has held that power of High Court to order re-trial whether in appeal from conviction or from acquittal is a discretionary one. It was further held that no hard and fast rule can be laid down regarding the power of High Court to order re-trial or to take CRIMINAL REVISION NO.993 OF 2007 :{ 10 }: additional evidence as it depends on the facts and circumstances of each case whether any one of the two courses should be adopted. It is also observed in this case that if the trial by a Magistrate is incurably defective so that even the taking of additional evidence would not put the appellate Court in a position to dispose of the case satisfactorily, then re-trial should be ordered. Re-trial can not be ordered where it can result in miscarriage of justice. In this regard, reference can be made to Jitendera Nath Bose Vs. The State, 1991 Crl.L.J. 922. Re-trial was ordered in those cases where the evidence was wrongly rejected. In Chhotka Vs. The State, AIR 1958 Calcutta 482, it is held that no doubt a new trial is one of the forms of interference in an appeal as also in a reference under section 374 of the Code of Criminal Procedure, but re-trial is indicated only when the accused is deprived in substance of a fair trial. Where the court finds it difficult to take upon itself the responsibility of deciding on the guilt or innocence of the accused, a re-trial should be granted but when there is abundant evidence, which requires to be considered and upon which the question of the accused's guilt or innocence can safely be decided, a retrial is not to be ordered. In Ramanlal Rathi Vs. The State, AIR 1951 Calcutta 305, it is held that a re-trial may be ordered when the original trial has not been satisfactory for particular reason, for example if evidence had been wrongly rejected which should have been admitted, or admitted when it should have been rejected, or the Court had refused to hear certain witnesses, who should have been heard. However, it is further held that re- trial can not be ordered on the ground that the prosecution did not produce the proper evidence and did not know how to prove their case or because the case is a serious one. An order of re-trial in a criminal case is made in exceptional cases and not unless the Appellate Court is satisfied that the Court trying the proceeding had no jurisdiction to try it or that the trial was CRIMINAL REVISION NO.993 OF 2007 :{ 11 }: vitiated by serious illegalities or irregularities or on account of misconception of the nature of proceedings and on that account in substance there had been no real trial or that the prosecutor or an accused was, for reasons over which he has no control, prevented from leading or tendering evidence material to the charge, and in the interest of justice, the Appellate Court deems it appropriate, having regard to the circumstances of the case that the accused should be put on his trial again. Reference in this regard may be made to Ukha Kolhe Vs. State of Maharashtra, AIR 1963 Supreme Court 1531. It is further observed by the Hon'ble Supreme Court that an order of retrial wipes out from the record the earlier proceedings and exposes the person accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons. The Hon'ble Supreme Court noticed that it would not be a sufficient ground for ordering retrial if it is found that the evidence led at the trial is deficient in important respects. In this background, the Hon'ble Supreme Court held that the additional evidence is necessary in the interest of justice and for a just and proper decision of the case, it should, instead of directing a retrial, exercise its power under Section 428(1) of the old Code of Criminal Procedure (Section 391 of the new Code). Thus, it can be said that the re-trial is not to be ordered merely to enable the prosecution to produce additional evidence for filling up lacuna and even if it is found that some essential evidence is missing, then resort to Section 391 Cr.P.C can be made by appellate Court in this regard. These then are the perimeters to see in case re-trial, as ordered in this case, can be sustained or not. CRIMINAL REVISION NO.993 OF 2007 :{ 12 }: Once it has been found that the accused persons were not put certain questions then prejudice on account of their faulty examination under Section 313 Cr.P.C. and its effect on the trial is required to be seen. The plea of the prosecution is that re-trial of the petitioners was directed by the Appellate Court is the right course of action, which is vehemently opposed by the counsel for the petitioners. It may also be noticed that the re-trial of the petitioners as ordered is not likely to serve any purpose. The petitioners were convicted and sentenced to suffer simple imprisonment for six months coupled with fine. The re-trial at the maximum would lead to their conviction again. Even if that was to happen, it will be doubtful if the Court would be in any position to sentence the petitioners more than what they have been already sentenced by the Trial Court. The consideration, if any, would be to deal with the petitioners leniently on account of delay and protracted trial that they have already faced. Learned counsel for the petitioners would point out that incident in this case is of 30.6.1995. The petitioners were convicted by the Trial Court after facing protracted investigation and prosecution on 28.3.2006. Their appeal was decided on 17.5.2007, when the case was remanded back for re-trial. The present revision petitions are pending since May 2007. It is, thus, seen that the petitioners have faced prosecution and protracted trial for the last nearly 13 years. In this background, it would not be fair to direct their re-trial, especially so when the offence alleged is under Section 498A IPC where one of them has been sentenced to undergo six months simple imprisonment whereas two of the petitioners were only sentenced to fine. In view of the various judgments as noticed above it is possible to take a view that the courts have always taken into consideration the delay in conclusion of criminal trials while issuing directions for re-trial of any accused person. Invariably the order of re-trial has been interfered by the CRIMINAL REVISION NO.993 OF 2007 :{ 13 }: courts on the ground that the accused persons have faced prosecution for considerably long period. Accordingly, requiring the petitioners to now face re-trial to fill in the lacunas, which have remained in the prosecution case on account of non-examination of vital witnesses and due to the petitioners having not been addressed proper questions would further prolong their agony. The direction issued by