Shri Sunil Jain v. NA/State

question is involved in all these revision petitions and the parties are also the same. This is a revision by accused directing against the order of de-novo trial. Brief facts of the case are that offence under the provisions of Section 3/7 of the Essential Commodities Act, 1955 has been registered against the applicants on 24.4.1981. On 5.12.1981 the matter was referred to the Economic Offence Wing of the Government of M.P. Thereafter, on 6.8.1984 the offence was registered against the applicants by the said Wing and after investigation charge sheet was filed on 28.5.1990 against the applicants. Charge before the Judicial Magistrate First Class was framed on 15.3.1994 under Section 3/7 of the Essential Commodities Act, 1955 and Section 465 of IPC. Learned trial Judge, after appreciating the evidence on record, vide its judgment dated 15.9.2011 acquitted the applicants from the charge under Section 465 of IPC but found them guilty under the provisions of Section 3/7 of the Essential Commodities Act, 1955 and sentenced them to 3 months RI each with fine of Rs.1,000/-. The petitioners aggrieved by the said judgment and order of conviction filed an appeal before the learned Sessions Judge, Mandsaur. The State also challenged the said order and filed an appeal under Section 377 Cr.P.C. for enhancement of sentence. By the impugned order dated 7.12.2011 the learned lower appellate Court after perusal of the record of the trial Court found 2 that the learned trial Judge committed grave illegality and irregularity in not recording separate evidence in each case and recorded evidence in one case and kept carbon copy in other cases and observed that the irregularities were grave in nature and the same cannot be corrected under Section 465 Cr.P.C. and, therefore, set aside the order passed by the trial Court and directed for de-novo trial. It is this action by which the applicants are aggrieved and filed these criminal revisions. It is submitted by the learned counsel for the applicants that the order of remand should be made only in exceptional cases and rare of the rarest case where grave injustice has been caused to the parties. In support of the said contention he drew my attention to the decision of the Madras High Court reported in 1970 (2) Madras Law Journal 457, wherein it is held that the power to order retrial in a criminal case should be sparingly exercised and it should not be ordered for the sole object of enabling the prosecution to fill up any deficiency pointed out by the appellant. Where the prosecution of its own negligence fails to produce evidence which it was bound to, the appellate Court will not be justified in ordering a re-trial. He also drew my attention to the decision of this Court in the case of Babu Singh Simbhoo Singh v/s State of M.P. (1993 MPLJ 433) & Samaliya Kishanlal v/ s State of M.P. (1993 MPLJ 476). In both the cases the learned Single Judge came to the conclusion that retrial should not be ordered where there has been a long delay between the commission of the offence and the trial in consequence of an order of retrial. Paragraph 4 of the Samaliya Kishanlal (supra) reads as under:- “It will be seen that Chapter XXIX of Criminal Procedure Code, 1973, deals with appeals. Powers of appellate Court are described in Section 386 contained in that Chapter. The appellate Court has undoubtedly power to direct a retrial in an appeal from an order of acquittal as well as in an appeal from a conviction. Reference may be made to clauses (a) and (b) (i) of Section 386. Such power may be exercised even in an appeal for enhancement of 3 sentence vide clause (c)(i). At the same time, it is an established legal principle that power ordering retrial should be sparingly used and only for grave reasons. The considerations which should weigh with an appellate Court for directing retrial cannot be mathematically enumerated. There is however, preponderance of judicial opinion in favour of the view that retrial should n ot be ordered where there has been a long delay between the commission of the offence and the trial, in consequence of an order of retrial. If the sword of Damocles was kept hanging for along time, the accused should be permitted to rest in peace without a further trial. In this regard, it may not be possible to lay down any rigid limit as was sought to be contended by learned counsel for the petitioner, that if the original trial had lasted for 3 years or more, the retrial should not be ordered. It was inordinate delay which led the Supreme Court in S. Guin vs. Grindlays Bank Ltd., AIR 1986 SC 289 to take the view that proceedings should have been ordered to be dropped rather than retrial ordered. In that case, accused persons were acquitted of the charge of obstructing bank officers from entering bank premises and transacting normal business. The Grindlays Bank Ltd. went in appeal against the acquittal before the High Court. That appeal remained pending before the High Court for 6 years. While disposing of the appeal, the High Court felt that the trial Court had missed the essence of the offences with which the accused had been charged and, therefore, there was failure of justice. The High Court, therefore, set aside the judgment of acquittal passed by the Magistrate and remanded the case for retrial for offences punishable under Section 341 read with Section 34 or 149, Indian Penal Code. In appeal by special leave by the accused persons, the Supreme Court held that having regard to the inordinate delay of nearly 6 years that had ensued after judgment of acquittal, the nature and magnitude of the offences alleged to have been committed by the appellants, and the difficulties that may have to be encountered in securing the presence of witnesses in a case of that nature nearly 7 years after the incident, it would have been proper for the High Court to have dismissed the appeal rather than to have ordered retrial. The termination of criminal proceeding in that way would have secured the ends of justice. The Supreme Court in those circumstances set aside the judgment of the High Court and restored the order of acquittal passed by the Magistrate. Again, in Srinivas Pal vs. Union Territory of Arunachal Pradesh, AIR 1988 SC 1729, the Supreme Court was dealing with a case where appellant Srinivas Pal was accused of offences under Sections 279, 304-A and 338, Indian Penal Code. The accident had taken place on November 20, 1976 in a jeep, which was said to have been driven by the appellant. Delivering judgment on July 19, 1988, the Supreme Court 4 observed that : “... Having regard to the nature of offence there is enormous delay in proceeding with the criminal prosecution by the appellant i.e., 9½ years for a trial for rash and negligent driving, is too long a time. Quick justice is a sine qua non of Article 21 of the Constitution. ... it is just and fair and in accordance with equity to direct that the trial or prosecution of the appellant to proceed no further...” On the other hand, learned Dy. Government Advocate supported the impugned judgment, but very fairly conceded that the trial was completed within a period of 17 years from the date of framing of charge and within a period of more than 30 years from the date of registration of the offence against the applicants. On due consideration of the arguments of the learned counsel for the parties and considering the law laid down in the case of Samaliya Kishanlal (supra) and Babu Singh Simbhoo Singh (supra) the impugned order of the lower appellate Court is liable to be and is hereby set aside with a direction to the learned appellate Court below to decide the matter on merits within a period of 3 months from the date of filing of the certified copy of this order. It is made it clear that I have not expressed any opinion on the merits of the case. With the aforesaid all the criminal revisions are allowed and disposed of. Record of the trial Court be returned immediately. rcs* (P.K. Jaiswal, J.)