Ajit Singh vs State of Punjab

Harmohinder Kaur Sandhu, J.

Ajit Singh son of Munsha Singh, resident dent of village Nangal Lohana was tried for an offence under Section 61. (1)(c) of the Punjab Excise Act by Judicial Magistrate First Class, Kapurthala. He was held guilty and was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 5000/ and in case of default. payment of fine he was, to further undergo rigorous imprisonment for three months. Aggrieved by this judgment dated July 25, 1987 Ajit Singh filed an appeal. Before the trial Court it was canvassed that statement of the accused under section 313 of the Code of Criminal Procedure was not recorded in accordance with the prescribed provisions, as material circumstances which appeared in evidence against the accused were not put to him for his explanation. This contention was accepted by the learned Additional Sessions Judge, Kapurthala who allowed the appeal, set aside the conviction and sentence of the accused and remanded the case to Judicial Magistrate First Class, Kapurthala for fresh decision after properly examining the accused under section 313 of the Code of Criminal Procedure and allowing him an opportunity to lead evidence in defence., By way of the present revision petition, the order of the learned Additional Sessions Judge, Kapurthala dated August 5, 1987 is assailed.

I have heard the counsel for the parties.

The main contention of the learned counsel for the petitioner was that the occurrence in this case took place on July 4. 1984 and more than seven years have passed when this litigation started. The petitioner had already undergone sufficient expense and harassment and as such the order vide which the case was remanded for fresh decision was liable to be set aside on this. ground alone. Reliance was placed by the learned counsel in support of his contention on the case of Balkar Singh v. The State of Punjab, 1984(2) Recent Criminal Report 480 : 1985(1) C. L.R. 98 ; Mool Chand v. The State of Haryana, 1984 (1) C.L.R. 265 and Jagdish Singh v. The State of Haryana, 1987(1) Recent Criminal Reports 183 : 187 (1) CLR 405 . This later authority is fully applicable to the facts of the present case. In this case the accused was convicted under section 16 (1) (a) (i) of Prevention of Food Adulteration Act, 1954 by trial Magistrate. On appeal against conviction. the case was remanded to trial Court for retrial after recording the statement of accused afresh under section 313 of the Code of Criminal Procedure. The case remained pending for about eight years. It was held

"There can be no escape from the conclusion that the petitioner must indeed have undergone considerable expense, tension and harassment during the seven years or more that this trial has been pending against him. It would clearly be unjust and prejudicial to permit him to undergo all this any further. The judgment of the Additional Sessions Judge remanding the case is accordingly hereby set aside. The petitioner is ordered to be acquitted."

In the case of Mool Chand (supra), examination of the accused under section 313 of the Code of Criminal Procedure was not proper but the case was not remanded on the ground that it would prolong the agony of the petitioner who had already faced a protracted trial and the revision petition was accepted. The same question was decided in the case of Machander v. State of Hyderabad, AIR 1955 SC 792 and it was held :

"The Court would not be prepared to keep the persons who are on trial for their lives under indefinite suspense because trial Judges omit to do their duty under Section 342. The error was not a mere technicality. In the circumstances of the case the Court would not be prepared to order a retrial The accused should be acquitted."

Since the petitioner his faced this litigation for more than seven years and has alreadyundergone sufficient mental agony, harassment and expense, his fresh trial will not be in the interest of justice.

I, therefore, accept this revision petition, set aside the impugned order and acquit the petitioner of the offence with which he was charged. The fine if paid is ordered to be refunded to him.