Bhola Nath Mitra vs Jitendra Nath Mukherji

Fazl Ali, J.—This application is directed against an order, which has been passed by the Sessions Judge of Purulia directing a fresh trial of the opposite party, Jitendra Nath Mukherji. It appears that Jitendra Nath Mukherji was tried by the Sub-Divisional Magistrate of Hamshedpur for an offence u/s 409, Penal Code, on the allegation that while working as an agent at Calcutta of the firm of Radha Kishan Ram Autar of Chakulia, a place within the Sub-Division of Dhalbhum, he had received a sum of Rs. 200 from a Calcutta firm and committed criminal breach of trust in respect of that amount. The opposite party, Jitendra Nath Mukherji, denied the receipt of the said sum of money, and, as has been pointed out by the learned Sessions Judge, the case against him rested mainly on a receipt (EX. 7), which is alleged to have been granted by him to the International Trading Corporation, and on the evidence of a clerk of that firm to the effect that the money had been paid to him, and the latter had signed a receipt in his presence.

The defence of the opposite party was that the receipt was a forgery and it appears that during the trial before the Magistrate the parties agreed that the receipt should be sent to a handwriting expert for the purpose of ascertaining if the signature appearing on it was the genuine signature of the opposite party or not. The receipt, however, was not sent to the handwriting expert, and the learned Judge has in his judgment expressed the view that the opposite party should be given an opportunity to examine a handwriting expert, especially as he was willing to bear the entire costs of the examination of such expert. Now if all that was necessary in this case in the opinion of the learned Judge was that a handwriting expert should be examined, it was open to the learned Judge to have recourse to the procedure laid down in Section 428, Criminal P.C. That section provides that

the appellate Court, if it thinks additional evidence to be necessary, shall record its reasons, and may either take such evidence itself, or direct it to be taken by a Magistrate

before dealing with the appeal finally. The learned Judge, however, has in the present case set aside the conviction and sentence of the opposite party and remanded the case for a fresh trial. The learned Judge has, while passing this order, pointed out that there is a defect in the charge, because it is mentioned therein that the entire offence was committed at Calcutta on 2nd November 1940. The learned Judge then proceeds to observe as follows:

If the offence was really completed at Caloutta the learned lower Court had obviously no jurisdiction to try the same. It is the prosecution case that the money was received by the appellant on behalf of his master at Calcutta on 2nd November 1940, but the prosecution could not say definitely where the actual breach of trust took place. The appellant''s master was residing at Chakulia within Dhalbhum sub-division and the prosecution appears to have relied on Section 182, Criminal P.C. with a view to give the Sub-Divisional Magistrate of Dhalbhum jurisdiction to hear the case. The charge will, therefore, have to be slightly altered and amended so as to make it clear that the offence took place either at Calcutta or at Chakulia during a certain period. Any amendment or alteration to the charge will, therefore, entitle the appellant u/s 231, Criminal P.C. to recall and cross-examine all the prosecution witnesses. It, therefore, appears that it is advisable to have a trial de novo though the appellant did not press for such a de novo trial.

From the order of the learned Judge, it appears that he would not have ordered a retrial, but for the supposed defect in the charge, because, as I have already pointed out, if any further evidence was necessary it could have been recorded u/s 428, Criminal P.C. There is no doubt that an appellate Court has power to order a retrial under Sections 423 and 232, Criminal P.C., but it seems to me that before ordering a retrial in this case the learned Judge should have recorded certain findings. Section 531, Criminal P.C., provides that:

No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceeding in the course of which it, was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice.

Again, Section 232, Criminal P.C., provides that:

If any appellate Court is of opinion that any person convicted of an offence was misled in his defence by the absence of a charge, or by an error in the charge, it shall direct a new trial to be had upon a charge framed in whatever manner it thinks fit.

It seems to me, therefore, that the learned Judge before ordering a retrial should have come to a clear finding as to whether the supposed error in the charge had misled the accused in his defence, or occasioned a failure of justice. There is no doubt that u/s 423, Criminal P.C., an appellate Court is empowered to direct a retrial, but the power so conferred upon the Court must in all cases be judiciously exercised and, therefore, the sections to which I have referred have imposed certain restrictions upon the powers of an appellate Court. As I am not fully conversant with the evidence in) the case, I am not in a position to say whether the defect in the charge has in fact misled the accused, or has occasioned a failure of justice, and, therefore, I am not in a position to decide whether there ought to be a retrial or not. In my opinion, that is a matter which could be decided by the learned Judge alone, who had all the evidence before him. In these circumstances I set aside the order of the learned Judge, and send the case back to him for disposal according to law. The learned Judge will, in the first place, come to an express finding as to whether the defect in the charge has misled the accused or occasioned a failure of justice, and if he comes to a finding, that it has, then the learned Judge must order a retrial or pass such other order as he may be competent to pass under the law. If, on the other hand, he is of the opinion that the accused has not been misled and no failure of justice has been occasioned by the defect in the charge, then in that case the learned Judge should proceed u/s 428, and direct the Magistrate to record the evidence of the handwriting expert and such other evidence as in his opinion may be necessary for the purpose of enabling him finally to deal with the appeal.