Harbhajan Singh and others vs State of Haryana

Sat Pal, J.

This revision petition has been filed under Section 401 of the Code of Criminal Procedure (in short ''the Code'') against the judgment dated 30.3.1994 passed by the Judicial Magistrate 1st Class, Pehowa and the judgment dated 9.10.1995 passed by the learned Addl. Sessions Judge, Kurukshetra.

Notice of this petition was issued to Advocate General, Haryana on 18.10.1995.

During the pendency of the petition, the learned counsel for the petitioner filed an application bearing Criminal Miscellaneous No. 18276 of 1995 seeking permission of the Court to take the additional grounds mentioned in the application. Notice of this application was also issued to Advocate General, Haryana on 1.11.1995 for today. Before dealing with the merit of the case, I allow Criminal Miscellaneous No. 18276 of 1995 in view of the facts stated in the application and the petitioners are permitted to urge additional grounds mentioned in the application.

Mr. H.S. Gill, the learned counsel appearing on behalf of the petitioners, submits that in the present case mandatory provisions of Section 235(2) of the Code have been violated inasmuch as no effective opportunity was given to the petitioner regarding quantum of sentence awarded to the petitioners. He further submitted that this point was not raised before the first Appellate Court but this point can be urged even at this stage. In support of his submissions, learned counsel has placed reliance on two judgments of Supreme Court in Santa Singh v. State of Punjab, 1976 Criminal Law Times 571 and Allauddin Mian and others v. State of Bihar, 1989(1) Recent Criminal Reports 628 : AIR 1989 SC 1456 .

Mr. S.S. Gill, the learned Assistant Advocate General, Haryana, appearing on behalf of the State however submits that the order passed by the learned trial court itself shows that opportunity was given to the petitioner in terms of Section 235(2) of the Code.

I have heard the learned counsel for the parties and have perused the record.

From the judgment passed by the learned trial court, I find that the accused were convicted by the learned Court vide judgement dated 30.3.1994. The last sentence of the judgment regarding conviction reads as under :

"Let the accused be heard on quantum of sentence."

From the record, I find that immediately thereafter the accused were heard on the quantum of sentence and there is no observation at all that the case was adjourned even for a few hours to enable the learned counsel of the accused to address arguments effectively on the quantum of sentence. In the case of Allauddin (supra), it was held by the Supreme Court that the opportunity required to be given under Section 235(2) of the Code has to be effective opportunity and not a mere formality. In the case of Santa Singh (supra), it was held by the Apex Court that such a contention with regard to an opportunity under section 235(2) of the Code can be raised even at the appellate stage.

For the reasons recorded herein above, the petition is allowed and the case is remanded to the learned trial court. The learned trial court is directed to give affective opportunity to the petitioners as required under Section 235(2) of the Code. Parties are directed to appear before the learned trial court on 11.12.1995. Meanwhile, I direct that all the petitioners shall be released on bail to the satisfaction of the learned trial court.

Learned counsel for the petitioners, however, submits that another point raised in this petition is that the Investigating Officer has not been examined and nonexamination of the Investigating Officer has adversely affected the case of the petitioners. In view of this, I direct that the petitioner shall be at liberty to raise these additional points before this Court in revisional jurisdiction in case they are not satisfied with the final order passed by the learned trial court.