Punjab-Haryana High Court
Tarsem Kumar vs District Manager And Anr on 25 April, 2023
Author: Jasjit Singh Bedi
Bench: Jasjit Singh Bedi
Neutral Citation No:=2023:PHHC:059320
2023:PHHC:059320
CRR-2078-2016 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRR-2078-2016 (O&M)
Date of Decision: 25.04.2023
TARSEM KUMAR
... Petitioner
Versus
DISTRICT MANAGER, PUNGRAIN-CUM-DISTT. FOOD & SUPPLIES
CONTROLLER, SRI MUKTSAR SAHIB & ANOTHER
...Respondents
CORAM: HON'BLE MR. JUSTICE JASJIT SINGH BEDI
Present: Mr. R.S. Rangpuri, Advocate
for the petitioner.
Mr. Tejeshwar Singh, Advocate with
Ms. Dewangana Chillar, Advocate
for respondent No.1.
Mr. Kirat Singh Sidhu, D.A.G, Punjab
for respondent No.2.
****
JASJIT SINGH BEDI, J.
The present revision petition has been preferred against the judgment dated 06.05.2016 passed by the Sessions Judge, Sri Muktsar Sahib in CRA No.103 of 2014 vide which the case has been remanded back to the Trial Court by setting aside the judgment of acquittal passed in favour of the petitioner/accused.
2. The brief facts of the case are that FIR No.166 dated 01.07.2005 under Sections 406/420 IPC, Police Station City, Sri Muktsar Sahib was registered on the basis of a complaint moved by the Manager Pungrain to the S.S.P. Sri Muktsar Sahib as per which the proprietor of M/s Taj Industries, Sri Muktsar namely, Tarsem Kumar (petitioner) had misappropriated paddy amounting to Rs.31,89,147/-.
1 of 17
::: Downloaded on - 27-04-2023 04:35:40 :::
Neutral Citation No:=2023:PHHC:059320
2023:PHHC:059320
CRR-2078-2016 (O&M) -2-
3. Pursuant to the registration of the FIR, the investigation was concluded and a report under Section 173(2) Cr.P.C. came to be presented against the petitioner. Based on the said report, charges came to be framed under Sections 420 and 406 IPC by the Chief Judicial Magistrate, Sri Muktsar vide order dated 11.05.2006 (Annexure P-1).
4. The petitioner/accused preferred a revision petition against the aforementioned order of framing of charges. It may be pertinent to mention here that one Shri R.L. Jagga, Advocate represented the petitioner. The complainant remained unrepresented. The Court of Additional Sessions Judge, (Ad hoc) Fast Track Court, Sri Muktsar Sahib vide order dated 12.12.2006 set aside the charge under Section 420 IPC but held that the facts of the case also attracted the offence under Section 409 IPC. The copy of the order whereby the charges were ordered to be amended dated 12.12.2006 is annexed as Annexure P-2 to the petition.
5. The petitioner filed a quashing petition under Section 482 Cr.P.C. bearing No.CRM-M-49205-2007. The said petition was ordered to be dismissed as withdrawn on 09.12.2011 with the liberty to the petitioner to raise all arguments available to him before the Trial Court at the appropriate stage.
6. Meanwhile, neither the State nor the accused disclosed to the Trial Court that the charge had been ordered to be amended vide order dated 12.12.2006 (Annexure P-2). Therefore, the Trial proceeded on the basis of the order framing charges (Annexure P-1) under Section 406/420 IPC. Ultimately, the petitioner was acquitted by the Court of Chief Judicial Magistrate, Sri Muktsar Sahib vide judgment dated 06.03.2014 (Annexure P-3). It would be 2 of 17 ::: Downloaded on - 27-04-2023 04:35:40 ::: Neutral Citation No:=2023:PHHC:059320 2023:PHHC:059320 CRR-2078-2016 (O&M) -3- relevant to mention here that the complainant was unrepresented whereas the petitioner was represented by the same counsel.
7. It was at this stage that the complainant filed an appeal against the judgment of acquittal before the Court of Sessions Judge, Sri Muktsar Sahib. At that stage, it was brought to the notice of the Appellate Court that originally the charge had been framed under Section 406/420 IPC vide order dated 11.05.2006 (Annexure P-1). Subsequently, on a revision petition preferred by the petitioner/accused, the charge had been ordered to be amended inasmuch as Section 420 IPC was deleted and Section 409 IPC was ordered to be added vide order dated 12.12.2006 (Annexure P-2).
While narrating the sequences of events, the Sessions Judge, Sri Muktsar Sahib came to the conclusion that it had not been brought to the notice of the Trial Court by either the State or the accused that the charges had been ordered to be amended. Therefore, the appeal was partly accepted with the observations that the judgment of the Trial Court was to be set aside and reversed with the directions that the Trial Court would proceed against the accused as per directions of the Additional Sessions Judge, (Ad Hoc), Fast Track Court, Sri Muktsar Sahib dated 12.12.2006. A further direction was issued to dispose of the case expeditiously, preferably within a period of 04 months from the first date of hearing. The said remand order dated 06.05.2016 passed by the Sessions Judge, Sri Muktsar Sahib is impugned in the present petition.
8. The learned counsel for the petitioner contends that remitting the matter for a de novo trial should be exercised as a last resort and in a rare situation where there was grave miscarriage of justice. In the instant case, since the ingredients of Sections 406 and 409 IPC were similar, Section 409 IPC 3 of 17 ::: Downloaded on - 27-04-2023 04:35:40 ::: Neutral Citation No:=2023:PHHC:059320 2023:PHHC:059320 CRR-2078-2016 (O&M) -4- being an aggravated form of Section 406 IPC, the remand would be an exercise in futility as the petitioner was likely to be acquitted once again as no new evidence would come up during the course of a re-trial.
He contends that no finding has been recorded that in the opinion of the Court the remand for a de novo trial was necessary as a 'failure of justice' had been occasioned on account of the trial proceeding on an incorrect charge. In the absence of any such observation, the impugned order was liable to be set aside.
He lastly contends that the FIR pertains to the year 2005. The charges were initially framed in the year 2006. Therefore, the de novo trial ordered in the year 2016 which would take place now in the year 2003 would violate the right to a speedy trial guaranteed under Article 221 of the Constitution of India. Therefore, on this count, also the impugned order was liable to be set aside. Reliance is placed on the judgments in State of Madhya Pradesh Versus Bhooraji, 2001(4) R.C.R. (Criminal) 40, Pankaj Kumar Versus State of Maharashtra & others, 2008(4) R.C.R. (Criminal) 890 and Dhani Ram Versus State of Haryana, 1995(3) R.C.R. (Criminal) 301.
9. The learned counsel for respondent No.1-complainant contends that while it is true that Section 409 IPC is an aggravated form of Section 406 IPC both being criminal breach of trust, the Court cannot second guess and hold that on a re-trial no fresh evidence would come up against the accused even though he initially stood acquitted under Section 406 IPC.
It is his contention that the accused/petitioner cannot take advantage of his own wrong in not disclosing to the Trial Court that the charge had been ordered to be framed under Section 409 IPC as well where the 4 of 17 ::: Downloaded on - 27-04-2023 04:35:40 ::: Neutral Citation No:=2023:PHHC:059320 2023:PHHC:059320 CRR-2078-2016 (O&M) -5- sentence prescribed was higher and a quashing petition challenging the said order had also been dismissed. In fact, the counsel for the petitioner/accused was the same at every stage of proceedings before the Courts below.
He contends that assuming the impugned order of remand and re- trial was set aside, the appeal against the Trial Court's judgment of acquittal would have to be heard on merits (an appeal being a right which cannot be taken away) and in such a scenario, the said appeal would be against a judgment of acquittal where the trial had proceeded erroneously under Section 406/420 IPC and not Section 409 IPC, thereby perpetuating an apparent illegality on the face of the record as the charge had already been ordered to be amended and subsequently amended by way of addition of Section 409 IPC. He therefore, contends that there is no apparent illegality with the impugned order and the present petition was liable to be dismissed.
10. The learned State counsel has supported the case of the complainant and contends that the remand order has rightly been passed on account of the fact that the Trial proceeded under Sections 406/420 IPC when apparently, Section 420 IPC was ordered to be deleted whereas Section 409 IPC was ordered to be added.
11. I have heard the learned counsel for the parties at length.
12. Before proceeding further in the matter, it would be apposite to refer to the relevant provisions of law.
Section 464 Cr.P.C, reads as under:-
464. Effect of omission to frame, or absence of, or error in, charge.-
(1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground 5 of 17 ::: Downloaded on - 27-04-2023 04:35:40 ::: Neutral Citation No:=2023:PHHC:059320 2023:PHHC:059320 CRR-2078-2016 (O&M) -6-
that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
(2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may-
(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately after the framing of the charge;
(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:
Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.
Section 405 IPC, reads as under:-
405. Criminal breach of trust.--Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".
[Explanation [1].--A person, being an employer [of an establishment whether exempted under section 17 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not] who deducts the employee's 6 of 17 ::: Downloaded on - 27-04-2023 04:35:40 ::: Neutral Citation No:=2023:PHHC:059320 2023:PHHC:059320 CRR-2078-2016 (O&M) -7- contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.] [Explanation 2.--A person, being an employer, who deducts the employees' contribution from the wages payable to the employee for credit to the Employees' State Insurance Fund held and administered by the Employees' State Insurance Corporation established under the Employees' State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.]"
Section 406 IPC, reads as under:-
406. Punishment for criminal breach of trust.--Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Section 409 IPC, reads as under:-
409. Criminal breach of trust by public servant, or by banker, merchant or agent.--Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or
7 of 17 ::: Downloaded on - 27-04-2023 04:35:40 ::: Neutral Citation No:=2023:PHHC:059320 2023:PHHC:059320 CRR-2078-2016 (O&M) -8- agent, commits criminal breach of trust in respect of that property, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
13. The various judgments referred to by the petitioner are as under:-
In State of Madhya Pradesh Versus Bhooraji (supra), a de novo trial post conviction had been ordered as a superior court found that the case had not been committed to a Special Court (since the case was also under the SC and ST Act) but the Special Court had taken cognizance directly. It was in such a scenario that the Hon'ble Supreme Court held that a de novo trial should be the last resort when no other course was open as every omission or illegality in procedure which did not affect the core of the case was not a ground for ordering such a de novo trial. This was because the Appellate Court could re-valuate or re-appreciate evidence and even take additional evidence. Therefore, only in the cases of 'failure of justice' could be a de novo trial ordered. The relevant paras of the said judgment are as under:-
"8. 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 8 of 17 ::: Downloaded on - 27-04-2023 04:35:40 ::: Neutral Citation No:=2023:PHHC:059320 2023:PHHC:059320 CRR-2078-2016 (O&M) -9- 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 overlook 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."
**** **** ****
13. It is useful to refer to Section 462 of the Code which says that even proceedings conducted in a wrong sessions division are not liable to be set at naught merely on that ground. However an exception is provided in that Section that if the court is satisfied that proceedings conducted erroneously in a wrong sessions division "has in fact occasioned a failure of justice" it is open to the higher court to interfere. While it is provided that all the instances enumerated in Section 461 would render the proceedings void, no other proceedings would get vitiated ipso 9 of 17 ::: Downloaded on - 27-04-2023 04:35:40 ::: Neutral Citation No:=2023:PHHC:059320 2023:PHHC:059320 CRR-2078-2016 (O&M) -10- facto merely on the ground that the proceedings were erroneous. The court of appeal or revision has to examine specifically whether such erroneous steps had in fact occasioned failure of justice. Then alone the proceedings can be set aside. Thus the entire purport of the provisions subsumed in Chapter XXXV is to save the proceedings linked with such erroneous steps, unless the error is of such a nature that it had occasioned failure of justice.
14. We have to examine Section 465(1) of the Code in the above context. It is extracted below :
"Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that court, a failure of justice has in fact been occasioned thereby."
15. A reading of the section makes it clear that the error, omission or irregularity in the proceedings held before or during the trial or in any enquiry were reckoned by the legislature as possible occurrence in criminal courts. Yet the legislature disfavoured axing down the proceedings or to direct repetition of the whole proceedings afresh. Hence, the legislature imposed a prohibition that unless such error, omission or irregularity has occasioned "a failure of justice"
the superior court shall not quash the proceedings merely on the ground of such error, omission or irregularity.
16. What is meant by "a failure of justice" occasioned on account of such error, omission or irregularity ? This court 10 of 17 ::: Downloaded on - 27-04-2023 04:35:40 ::: Neutral Citation No:=2023:PHHC:059320 2023:PHHC:059320 CRR-2078-2016 (O&M) -11- has observed in Shamnsaheb M. Multtani v. State of Karnataka, 2001(2) SCC 577 : 2001(1) RCR (Criminal) 617 (SC) thus :
"We often hear about 'failure of justice and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression 'failure of justice' would appear sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Deptt. of the Environment, 1977(1) All E.R. 813. The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage."
17. It is an uphill task for the accused in this case to show that failure of justice had in fact occasioned merely because the specified sessions court took cognizance of the offence without the case being committed to it. The normal and correct procedure, of course, is that the case should have been committed to the special court because that court being essentially a court of sessions can take cognizance of any offence only then. But if a specified sessions court, on the basis of the legal position then felt to be correct on account of a decision adopted by the High Court, had chosen to take cognizance without a committal order, what is the disadvantage of the accused in following the said course ?
[emphasis supplied] In Pankaj Kumar Versus State of Maharashtra & others(supra), the occurrence had been taken place in the year 1981, the FIR came to be registered in 1987 and the charge-sheet was submitted in the year 11 of 17 ::: Downloaded on - 27-04-2023 04:35:40 ::: Neutral Citation No:=2023:PHHC:059320 2023:PHHC:059320 CRR-2078-2016 (O&M) -12- 1991. However, the trial did not commence up to 1999. The Hon'ble Supreme Court quashed proceedings holding that firstly there was a delay in the culmination of proceedings and the right to a speedy trial under Article 21 of the Constitution of India had been violated. It was also held that the appellant was 18 years old at the time of the offence in the year 1981 and the delay was not attributable to him. The relevant paras of the said judgment are as under:-
17. It is, therefore, well settled that the right to speedy trial in all criminal persecutions is an inalienable right under Article 21 of the Constitution. This right is applicable not only to the actual proceedings in court but also includes within its sweep the preceding police investigations as well.
The right to speedy trial extends equally to all criminal persecutions and is not confined to any particular category of cases. In every case, where the right to speedy trial is alleged to have been infringed, the court has to perform the balancing act upon taking into consideration all the attendant circumstances, enumerated above, and determine in each case whether the right to speedy trial has been denied in a given case. Where the court comes to the conclusion that the right to speedy trial of an accused has been infringed, the charges or the conviction, as the case may be, may be quashed unless the court feels that having regard to the nature of offence and other relevant circumstances, quashing of proceedings may not be in the interest of justice. In such a situation, it is open to the court to make an appropriate order as it may deem just and equitable including fixation of time for conclusion of trial.
18. Tested on the touchstone of the broad principles, enumerated above, we are of the opinion that in the instant case, appellant's constitutional right recognised under 12 of 17 ::: Downloaded on - 27-04-2023 04:35:40 ::: Neutral Citation No:=2023:PHHC:059320 2023:PHHC:059320 CRR-2078-2016 (O&M) -13- Article 21 of the Constitution stands violated. It is common ground that the First Information Report was recorded on 12th May, 1987 for the offences allegedly committed in the year 1981, and after unwarranted prolonged investigations, involving afore-stated three financial irregularities; the charge-sheet was submitted in Court on 22nd February, 1991. Nothing happened till April, 1999, when the appellant and his deceased mother filed criminal writ petition seeking quashing of proceedings before the trial court. Though, it is true that the plea with regard to inordinate delay in investigations and trial has been raised before us for the first time but we feel that at this distant point of time, it would be unfair to the appellant to remit the matter back to the High Court for examining the said plea of the appellant. Apart from the fact that it would further protract the already delayed trial, no fruitful purpose would be served as learned Counsel for the State very fairly stated before us that he had no explanation to offer for the delay in investigations and the reason why the trial did not commence for eight long years. Nothing, whatsoever, could be pointed out, far from being established, to show that the delay was in any way attributable to the appellant. Moreover, having regard to the nature of the accusations against the appellant, briefly referred to above, who was a young boy of about eighteen years of age in the year 1981, when the acts of omission and commission were allegedly committed by the concerns managed by his parents, who have since died, we feel that the extreme mental stress and strain of prolonged investigation by the Anti Corruption Bureau and the sword of damocles hanging perilously over his head for over fifteen years must have wrecked his entire career. Be that as it may, the prosecution has failed to show any exceptional circumstance, which could possibly be taken into 13 of 17 ::: Downloaded on - 27-04-2023 04:35:40 ::: Neutral Citation No:=2023:PHHC:059320 2023:PHHC:059320 CRR-2078-2016 (O&M) -14- consideration for condoning the prolongation of investigation and the trial. The lackadaisical manner of investigation spread over a period of four years in a case of this type and inordinate delay of over eight years (excluding the period when the record of the trial court was in the High Court), is manifestly clear. Thus, on facts in hand, we are convinced that the appellant has been denied his valuable constitutional right to a speedy investigation and trial and, therefore, criminal proceedings initiated against him in the year 1987 and pending in the court of Special Judge, Latur, deserve to be quashed on this short ground alone.
[emphasis supplied] In Dhani Ram Versus State of Haryana(supra), the Magistrate had convicted the accused under the Prevention of Food Adulteration Act by trying the case as a warrant case instead of trying it in a summary manner. The Sessions Court set aside the conviction on this ground and remanded the case back for re-trial. The High Court set aside the re-trial order, holding that there was an inordinate delay in concluding proceedings.
14. Coming back to the facts of the instant case, though it is true that the ingredients of Sections 406 and 409 IPC are similar however, it is equally true that this Court cannot second guess and hold that in a re-trial, no fresh evidence would come up against the accused and therefore, a de novo trial ought not to have been ordered.
A perusal of the impugned judgment would reveal that though the words 'failure of justice' might not have been used, the entire judgment is premised on the fact that the petitioner/accused had deliberately not disclosed to the Trial Court that the charge had been ordered to be amended. Thus, 14 of 17 ::: Downloaded on - 27-04-2023 04:35:40 ::: Neutral Citation No:=2023:PHHC:059320 2023:PHHC:059320 CRR-2078-2016 (O&M) -15- 'failure of justice' was writ large and mere non-usage of the term does not make the impugned order illegal or unlawful in any manner. Be that as it may, even this Court can examine the record and come to a conclusion that, in fact, there has been failure of justice as envisaged under Section 464 Cr.P.C. for which the remand is necessary. It may be reiterated here that neither the petitioner/accused nor his counsel had disclosed to the Trial Court that the Revisional Court had ordered amending of charges and a quashing petition had also been ordered to be dismissed as withdrawn. In such a scenario, this error or omission by which the Trial Court was not informed about the charge under Section 409 IPC cannot be rectified by the Appellate Court. It is not a procedural error but is a substantive error for which a de novo trial is necessary on account of 'failure of justice'.
One other factor which is to be taken to consideration is that if the impugned order was set aside, the appeal against the Trial Court's judgment of acquittal was to be heard on merits by the Appellate Court. In such a scenario it would be against the judgment of acquittal where the trial had proceeded under Section 406/420 IPC and not under Section 406/409 IPC. This hearing of the appeal on merits would perpetuate an apparent illegality on the face of the record as the charge had already been ordered to be amended. Therefore, it is difficult to find fault with the order of remand as has sought to be canvassed by the counsel for the petitioner and a 'failure of justice' has been occasioned by the Trial proceeding under Sections 406/420 IPC as against Sections 406/409 IPC.
15 of 17
::: Downloaded on - 27-04-2023 04:35:40 :::
Neutral Citation No:=2023:PHHC:059320
2023:PHHC:059320
CRR-2078-2016 (O&M) -16-
As regards the question of delay, it may be pointed out that the same is occasioned on account of the conduct of the petitioner and his counsel. It may be reiterated here that the FIR pertains to the year 2005. The charges were framed in the year 2006. The revision against the charge came to be decided on 12.12.2006 (Annexure P-2). A quashing petition was also preferred which came to be dismissed in the year 2011. At no stage, did the petitioner bring it to the notice of the Trial Court that the Trial had proceeded on an order framing charges which had been set aside. Therefore, the delay if any has been at the instance of the petitioner/accused and not at the instance of the complainant. In fact, it is only where there is an inordinate delay on account of procedural reasons/lapses can the proceedings be ordered to be disclosed. In the instant case, the facts are completely different as the mis-trial and the remand order causing delay is not attributable to the complainant or the State but to the accused. The complainant which is a government instrumentality has also suffered on account of this delay for which it ought not to be penalized.
The judgment in State of Madhya Pradesh Versus Bhooraji (supra) is clearly distinguishable on facts. In that case ,the de novo trial had been ordered due to a defect in procedure only. The Court came to the conclusion that there was no 'failure of justice' occasioned by such a defect in the trial. In the instant case, the defect is not procedural but is a substantive defect where the complainant has suffered irreparable loss on account of the trial having proceeded on the basis of incorrect of charges. Therefore, there is certainly, a 'failure of justice'.
16 of 17
::: Downloaded on - 27-04-2023 04:35:40 :::
Neutral Citation No:=2023:PHHC:059320
2023:PHHC:059320
CRR-2078-2016 (O&M) -17-
Similarly, the judgment in Pankaj Kumar Versus State of Maharashtra & others (supra) regarding quashing/setting aside proceedings on account of delay would also not apply to the instant case. The delay if at all is attributable to the accused/petitioner and not to the complainant. Therefore, the accused cannot take advantage of his own wrong.
15. In view of the aforementioned discussion, I find no merit in the present petition and the same is dismissed.
(JASJIT SINGH BEDI)
JUDGE
25.04.2023
JITESH Whether speaking/reasoned:- Yes/No
Whether reportable:- Yes/No
Neutral Citation No:=2023:PHHC:059320
17 of 17
::: Downloaded on - 27-04-2023 04:35:40 :::