State of Madhya Pradesh vs Inderjeet Singh

K.L. Shrivastava, J.—This revision petition u/s 401 of the Cr. P.C. 1973 (for short ''the Code''), is directed against the order dt. 14-7-82 passed by the first Additional Sessions Judge, Mandsaur in Criminal Appeal No, 64 of 1982 whereby conviction of the non-applicant has been set aside and the case has been remanded to the Court for fresh trial as directed.

The circumstances giving rise to the application are these.

The non-applicant Indrajeetsingh during the period between 4-11-68 and 3-4-72 was an employee of the State of Madhya Pradesh and Was working as Nazir in the Collectorate, Mandsaur. It was his duty to deal with the cash and maintain proper accounts. On 3-4-72 he applied for casual leave and thereafter did not return to duty.

A committee constituted by the Collector examined the accounts on 5-4-72 and it was found that the non-applicant had embezzled an amount of Rs. 39,051.40 between 4-11-68 and 3-4-72.

The matter was reported to the Police, Mandsaur which registered a crime u/s 409,1.P.C. against the non-applicant.

At the conclusion of the investigation, the non-applicant was prosecuted in the Court of Judicial Magistrate, First Class, Mandsaur who convicted him u/s 409,1.P.C. and also sentenced him.

The non-applicant preferred an appeal in the Court of Session at Mandsaur. The Additional Sessions Judge who disposed of the appeal, passed the impugned order on the ground that the trial was vitiated being in contravention of the proviso to Section 212(2) of the Code.

The point for consideration is whether the impugned order deserves to be set aside.

The contention of the learned Counsel for the State is that the non-applicant did not raise any objection in the trial Court as regards the contravention of the aforesaid provision and further that in view of Section 464 of the Code, the error was curable and, therefore, the impugned order was uncalled for.

learned Counsel for the non-applicant on the other hand contends that the trial in contravention of the mandatory provision is clearly vitiated and the illegality thereby committed is not within the ambit of Section 464 of the Code.

For a proper appreciation of the controversy, it is apposite to refer to the provisions referred to above. Section 212(2) of the Code with its proviso reads thus:

Section 212(2). When the accused is charged with criminal breach of trust or dishonest misappropriation of money or other movable property, it shall be sufficient to specify the gross sum or, as the ease may be, describe the movable property in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular item or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of Section 219:

Provided that the time included between the first and last of such dates shall not exceed one year.

Section 464 of the Code is in these terms:

Section 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 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.

Reference to Section 215 of the Code is also apposite. It reads thus :�

Section 215. Effect of errors. � No error in stating either the offence or fhe particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.

The question as to the contravention of the proviso to Section 212(2) of the Code was purely one of law requiring no investigation into the facts and though not raised in the trial Court was rightly allowed to be urged in appeal. The decision in Tulsi Ram Vs. State of U.P., is clearly distinguishable.

The learned Counsel for the applicant placed reliance on the following excerpt from para 7 of the decision in Chittaranjan Das Vs. State of West Bengal, .

It is quite conceivable that in some cases by making the charge too vague in the matter of the time of the commission of the offence an accused person may substantially be deprived of an opportunity to make a defence of alibi, and so, the criminal Courts naturally take the precaution of framing charges with sufficient precision and particularly in order to ensure a fair trial, but we do not think it would be right to hold that a charge is invalid solely for the reason that it does not specify the particular date and time at which any offence is alleged to have been committed. In this connection it may be relevant to bear in mind that the requirements ol procedure, are generally intended to subserve the ends of justice, and so, undue emphasis on mere technicalities in respect of matters which are not of vital or important significance in a criminal trial, may some times frustrate the ends of justice. Where the provisions prescribed by the law of procedure are intended to be mandatory the Legislature indicates its intention in that behalf clearly and contravention of such mandatory provisions may introduce a serious. infirmity in the proceedings themselves, but where ihe provisions made by the Law of Procedure are not of vital importance, but are, nevertheless, intended to be observed, their breach may not necessarily vitiate the trial unless it- is shown that the contravention in question has caused prejudice to the accused. This position is made clear by Sections 535 and 537 Cri P.C.

It is true that as pointed out in The State Vs. Banwari Nandu Jat and Another, in judging a question of prejudice, as of guilt, the Courts.must act with a broad vision and look to the substance and not to technicalities. However, it must be noted that Section 464 of the Code (equivalent to Section 535 of the repealed Code) is not intended to cover all illegalities without any distinction. In this connection the following excerpt from para 7 of the decision in Kottaya v. Emperor AIR 1947 PC 67 : 1948Cri LJ 533 is apposite:

When a trial is conducted in a manner different from that prescribed by the Code as in (1901) 28 IA 257 (PC), the trial is bad, and no question of curing an irregularity arises, but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct the irregularity can be cured u/s 537, and nonetheless so because the irregularity involves, as must nearly always be. the case, a breach of one or more of the very comprehensive provisions of the Code. The distinction drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind. This view finds support in the decision of their Lordships Board in 5 Range 53, wherein failure to comply with Section 360, Cr. P.C. was held to be cured by Sections 535 and 537. The present case falls u/s 537 and their Lordships hold the trial valid notwithstanding the breach of Section 162.

In this very connection the decision in Rex Vs. Daya Shankar Jaitly, makes an illuminating reading. In para 21 thereof it has been pointed out that according to the Privy Council such illegalities as substantially affect the mode of trial adopted by the Court cannot be cured. In this very connection the decision in Bhoor Singh and Another Vs. State of Punjab, is also pertinent. Therein it has been pointed out that illegality means an incurable illegality incurable because of prejudice ''.leading to a failure of justice.

In the instant case, trial has taken place in a manner not warranted by the proviso to Section 212(2) of the Code which is mandatory. Therefore, it has to be held that the trial is wholly bad irrespective of the question whether or not there was any actual prejudice to the accused and consequent failure of justice. In this connection the decision in Myrathil Mathai''s case 1983 Cri LJ NOC 25 (Ker) : reported in 1982 Ker LJ 692 is also pertinent. In the decision in Ghisulal Vs. State of Madhya Pradesh, it has been held that where a trial is conducted in a manner different from that prescribed and the procedure adopted is one which is positively prohibited the possibility of working actual injustice to the accused is there and it is not an irregularity or illegality which can be classed as curable.

In the ultimate analysis I am of the view that the impugned order setting aside the conviction and sentence and remanding the case for fresh trial with due advertence to the proviso to Section 212(2) of the Code is unexceptionable.

In the result, the revision petition which has no merit must fail. It is accordingly dismissed.