IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No. 153 of 2004 & 154 of 2004. Reserved on.: 26.6.2008. Date of decision : 30.7.2008. Cr. Revision No. 153 of 2004 Rama Devi and others Petitioners. Versus State of H.P and another Respondents Cr. Revision No. 154 of 2004. Subhash Chand Petitioner. Versus State of H.P Respondent Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 Yes. For the petitioners: Pt. Om Prakash Sharma, Avocate. For the Respondent No.1: Mr. Vivek Thakur, Addl. A.G. For the Respondent No.2: Mr. R.K.Gautam, Sr. Advocate with Ms. Archana Dutt, Advocate. Deepak Gupta, J. These two criminal revision petitions are being disposed of by one judgement since common questions of fact and law arise in both the cases. Briefly stated the facts of the case are that a police challan was filed against the petitioner (Subhash Chand) under Section 173 of the Criminal Procedure Code 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. for having committed offences punishable under Sections 498-A and 306 IPC. This challan was filed before the learned Chief Judicial Magistrate, Una on 28.7.2000 and was thereafter committed to the Court of Sessions since it disclosed offences which had to be tired by the Court of Sessions. This case was registered as Sessions Case No. 14 of 2001 and in this case the accused is only Subhash Chand. Another case being Sessions Case No. 15 of 2001 was committed to the Court of Sessions Judge by the learned Chief Judicial Magistrate, Una. In this complaint case, the complaint was not only against Subhash Chand but other members of his family who were proceeded under Section 498-A, 304-B read with Section 34 IPC and husband Subhash chand was also charged under Section 498-A, 304- B and 306 read with Section 34 IPC, in addition to the charges framed in the police case. It is thus apparent that there was a police challan under Section 498-A and 306 IPC against accused Subhash Chand and in the complaint case Subhash Chand was also made to stand trial for having committed an offence under Section 304-B read with Section 34 IPC and the other accused were tried for charges under Section 498-A, 304-B read with Section 34 IPC. The learned Additional Sessions Judge vide order dated 14.5.2001 ordered that since the police challan and the complaint were in respect of the same occurrence, both of them should be clubbed together. On 5.9.2001 also it was again noted that the police challan and the private complaint have been clubbed together and charges were framed. Both orders were passed in the presence of the accused as well as of the prosecution and the trial commenced in the year 2001. Witnesses were examined and the case proceeded till 10.6.2004. On that date, the prosecution in the police case and the complainant in the complaint case moved applications under Section 223 Cr.P.C for framing separate charges in both the cases. These applications were allowed vide the impugned orders and the learned Additional Sessions Judge relied upon the judgement of the apex Court Balbir vs. State of Haryana and another, AIR 2000 Supreme Court 11 and Harjinder Singh vs. State of Punjab, AIR 1985 S.C. 404 and held that the private complaint as well as the police challan could not have been tried together and therefore directed that amended charges be framed against the accused and listed both the cases again for prosecution evidence. Aggrieved by these orders, the accused have approached this Court in both the cases. Pt. Om Prakash Sharma, learned counsel for the accused has urged that both the cases were virtually complete and ready for recording the statement of the accused under Section 313 Cr.P.C., when the complainant and the State filed applications for separate trial of both the cases. Impugned order has been challenged on the ground that the learned Sessions Judge had no power to review the earlier order dated 14.5.2001 and 5.9.2001. It is also urged that re-examination of the witnesses would cause injustice to the petitioner and would amount to the accused being tried twice for the same offence and as such the order is hit by article 20 of the Constitution of India. The apex Court in both the aforesaid cases, relied by the learned trial Judge, has clearly held that the case on a police report and the case filed on the basis of a private complaint should not be clubbed together when the prosecution version in the two cases is different. The apex Court has held that where diverse stories are put up against the accused in the two cases, joint trial is not permissible. There can be no quarrel with this preposition of law. It would, however, be pertinent to notice that in Harjinder Singh’s case (supra) the trial Court had directed that the two trials be consolidated. The accused had immediately challenged the order of the trial Court and when they did not succeed before the High Court they approached the apex Court. In Balbir’s case supra the police had filed a challan alleged that one Guria had committed the murder of one Om Prakash. In the private complaint filed by one Jagdish it was alleged that Om Prakash had been murdered by Balbir and his brother Rajinder. The two versions were so different that they could not stand together. Guria was acquitted whereas Balbir was convicted. It was in this context the apex Court held that both the trials should have been held separately. In the present case, some of the allegations in both the trials are similar. Common evidence has already been led in both the cases. The apex Court has laid down the law to help the accused. In the present case, the accused have submitted before this Court that they do not want another trial. The facts of the present cases are, therefore, distinguishable from the facts in the two cases decided by the Supreme Court. In the present cases, the trial is virtually over and ordering retrial in both the cases would lead to the accused facing a fresh trial. All the witnesses will have to be re- examined, re-crossexamined. This will cause unnecessary burden on the parties as well as on the State exchequer. The clubbing of two trials at the most can be said to be an irregularity. It cannot be said to be an illegality. The accused do not claim that any prejudice has been caused to them and in fact their prayer is that the trial should continue as hereinbefore. 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:- “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 the present case, as noted above, none of the parties ever objected to the joint trial till the trial was virtually over. This objection having not been taken at the earlier stage, cannot be permitted to be raked up at this stage which would lead to the witnesses being called back and a laborious exercise being started all over again, which is not the intention of law. In view of the above discussion instead of starting a fresh trial all over again, I am of the considered view that the joint trial should be allowed to continue since the accused themselves are not claiming any prejudice on account of the joint trial. In view of the above discussion, the criminal revisions are allowed. The orders dated 6.8.2004 in both the cases are set-aside and the cases are remanded to the learned trial Court for further trial. The parties through their counsel are directed to appear before the learned trial Court on 8th September, 2008. The learned trial Court shall make an earnest endeavour to decide the cases as early as possible and in any event not later than 31st March, 2009. 30th July, 2008 ( Deepak Gupta ), J. ™