Criminal Revision No. 1793 of 2007 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION:12.11.2008. Balbir ....Petitioner Versus State of Haryana ....Respondent CORAM: HON'BLE MR. JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present:- Mr. R.K. Dahiya, Advocate for the petitioner. Mr. Yashwinder Singh, AAG Haryana. ---- RANJIT SINGH, J. The petitioner has impugned the order his retrial passed by Additional Sessions Judge, Sonepat while deciding his appeal. The appellate Court after setting aside the conviction, has remanded the case back to the trial Magistrate to re-record the statement of accused under Section 313 Cr.P.C. by putting all the circumstances appearing in evidence produced by the prosecution including the report of CFL to the accused. Directions further are to hear both the sides afresh and decide the matter accordingly. The facts in brief are that a sample of 'Sarson ka tel' (mustered oil) was taken from the accused on 20th July, 1995. The same was devided into three parts and sealed as per the rule. One part was sent to Public Analyst and was found to be adulterated. Criminal Revision No. 1793 of 2007 -2- The petitioner, who was an accused, moved an application for sending the second part of sample to Central Food Laboratory. The report dated 22.12.1997 was received from CFSLwhich was also to the effect that the sample did not confirm to the standard of mustered oil under the Prevention of Food Adulteration Act, 1955. The petitioner was tried the SDJM Ganaur, who vide his judgment dated 06.03.2006 held the petitioner guilty for an offence under Section 16(1)(a)(i) of Prevention of Food Adulteration Act, 1955. Upon conviction, the petitioner was sentenced to undergo RI for one year and to pay a fine of Rs.3000/-, in default of payment of fine, he was directed to further undergo imprisonment for three months. The petitioner impugned his conviction by filing the appeal before the Sessions Judge, Sonepat. One of the ground raised in the appeal was that the statement of the petitioner as accused was recorded under Section 313 Cr.P.C. The report of the Public Analyst (Ex. PH) was put to him but not the report of Central Food Laboratory (Ex.PK). It was accordingly pleaded that the case of the petitioner suffered a prejudice. It was argued with some justification that piece of evidence, which was not put to the accused while recording the statement under Section 313 Cr.P.C. would not be open to be used for the purpose of basing his conviction. In this regard reliance was placed on Mool Chand Vs. The State of Haryana, 1984(1) C.L.R. 265 . Considering the rival contentions raised before the court it came to the conclusion that the interest of justice impugned judgment of the conviction and order of sentence of the petitioner should be set aside. However, after setting aside, the case Criminal Revision No. 1793 of 2007 -3- remanded back to the trial Court with the direction re-record the statement of accused under Section 313 Cr.P.C. It is this part of the order remanding the case back to the trial Court for putting the incriminating circumstances to the petitioner as an accused that is under challenge. Learned counsel for the petitioner would submit that the petitioner has faced prolong prosecution ever since the date sample was taken on 20.07.1995. After investigation, the petitioner was put to trial and was convicted for this offence on 06.03.2006. He filed an appeal and the appellate order has been passed on 20.07.2007 remanding the case which will further prolong the agony of the petitioner. I have heard learned counsel for the parties. There is no dispute between the parties that any material evidence if not put to an accused while being examined under Section 313 Cr.P.C. would cause him prejudice and vitiate trial. This position is otherwise fairly settled. It has time and again been emphasized that examination of an accused under Section 313 Cr.P.C. is very important aspect of trial and any material which is to be used against the accused for recording a finding against him is required to be put to him so that he is given an opportunity to explain the same. There is also no scope of much debate that any circumstance or material when not put to the accused at the trial would prejudice the accused and such a material or circumstance cannot be taken into consideration for recording any finding against him. Such evidence is required to be excluded from consideration to Criminal Revision No. 1793 of 2007 -4- avoid any prejudice to an accused person. The question that would require determination would be whether this circumstance/evidence which has not been put to the petitioner should be excluded from consideration and the necessary consequences allowed to ensue or it is open to be rectified in appeal by directing retrial of the accused persons. In other words, it is to be seen if retrial would be a course which is permissible or not and upon that would depend if the impugned order can be sustained or not. Reference in this regard can be made to Makhan Jivan and others versus State of Gujrat, AIR 1971 Supreme Court 1797 to bring home the effect of non-compliance with the provisions of Section 342 Cr.P.C. (now Section 313 Cr.P.C.). 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 against him. It is to be noted that every error or omission with the requirement may not necessarily vitiate the trial. Error of 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 is caused or is likely to be caused to the accused. In this case, the report is considered vital and not putting the same to the petitioners would certainly cause him prejudice. The appellate Court has found Criminal Revision No. 1793 of 2007 -5- it so and has set aside the conviction and the sentence awarded to the petitioner. Reference may also be made to Makhan Singh Vs. State of Punjab, 1992 (2) RCR 109 to notice that remanding the case back for recording the statement of the accused would tantamount to allowing the prosecution to fill in the lacuna which cannot legally be done. In this regard, it is observed as under:- “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 the lacuna which could not be legally done.” Similar view was taken by this Court in the case of Criminal Revision No. 1793 of 2007 -6- Shyam Lal Versus State of Haryana 1986 (1) RCR (Criminal) 555. In this case, 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 weighed 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. Reference may now be made to Machander versus the State of Hyderabad 1956 The Punjab Law Reporter page 163. The question which arose before the Hon'ble Supreme Court in this case was whether a case could be remanded back 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. 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 Criminal Revision No. 1793 of 2007 -7- 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 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 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 case 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 board rule must apply in all Criminal Revision No. 1793 of 2007 -8- cases.” As per the observation of the Supreme Court noticed above 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 is also 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. In view of the law laid down noticed above, it is reasonably clear that an essential material which is not put to an accused would lead to prejudice the defence and such a piece of evidence or a material cannot be used against accused for basing his conviction. Once it is found that the accused person has been put to some prejudice on account of his faulty examination under Section 313 Cr.P.C., it is required to be seen as to what would be the effect of the same on his trial. 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 certainly leads to prejudice. What course then would be available with the Court dealing with the situation is the question that basically arise in this case. The plea of prosecution is that retrial of the petitioner as directed by the appellate Court is the right course of action which is strongly and vehemently opposed by the counsel for the petitioner to Criminal Revision No. 1793 of 2007 -9- say that it will not only go to fill in the lacuna in the prosecution case but would be a course which will not be fair to the accused/petitioner on account of the delay and the protracted trial that he has faced. It is possible to view that the Courts have always taken into consideration the delay in criminal trial while deciding about the directions to order retrial of any accused person. Invariably, the order of retrial has been interfered with by the Court on the ground that the accused persons have faced prosecution for a considerable period. Sufficient precedents in this regard have been noticed above. It will be possible to view that delay in prosecuting an accused is a vital aspect required to be taken into consideration while ordering his retrial. In the present case the raid was conducted in the year 1995. The petitioners faced lengthy investigation and ultimately was convicted in the year 2006. The impugned order was passed against the petitioner in the year 2007. Thus the petitioner has faced this prosecution for a period of nearly 14 years. Requiring him to now face retrial to fill in the lacunas which has remained in the prosecution case on account of question having not been addressed to him would further prolong his agony. In this background, it will not be fair now to direct retrial of the petitioner on account of this delay as well as due to the fact that he will certainly be put to prejudice and advantage will accrue to the prosecution which will have opportunity to fill in the lacuna left in the case. The Hon'ble Supreme Court in the case of Machander (supra) has clearly held that an accused person is to be given a fair and impartial trial. It is also observed that Criminal Revision No. 1793 of 2007 -10- the forces that are arrayed against the accused should not be permitted to repair the effects of their bunglings. The scales of justice are to be kept on an even balance. Applying this principle and the ratio of law, it can be said that the order directing the retrial of the petitioner in the facts and circumstances of this case would not be fair and as such cannot be sustained. The order passed by the appellate Court remanding the case for retrial is set aside. The case will go back to the appellate Court for deciding the appeal afresh on the basis of evidence available on record. The present revision petition is disposed of in the above terms. November 12, 2008. (RANJIT SINGH) vj JUDGE