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Judgment
Vinod Kumar Gupta, J.—These criminal revision petitions are directed against the order dated 15.5.2007 passed by the learned 2nd
Additional Sessions Judge, Jammu in an appeal against conviction of the petitioner accused whereby judgment of conviction and sentence passed
by the learned Chief Judicial Magistrate, Jammu was set aside and the case was remanded back with a direction to proceed with the matter afresh
from the stage of Section 342 Criminal Procedure Code.
The brief facts are that the accused was posted as a Postal Assistant in the Head Post Office (HPO) and it is alleged that during the period
1981 to July 1982 accused received an amount of Rs. 14,310.80 NP as the amount of VPP Register and CD Parcels and deposit the same with
the cashier and thereby misappropriated the said amount. An FIR was registered with CBI and after conclusion of the investigation a chargesheet
was presented in the court of learned Chief Judicial Magistrate, Jammu. After trial of the accused, the learned Chief Judicial Magistrate convicted
the accused petitioner and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,000 under section 409 RPC.
The petitioner accused preferred an appeal before the learned 2nd Additional Sessions Judge Jammu and it was found that the statement of the
accused under Section 342 Cr.P.C. has not been properly recorded and the record seized in the case and proved during the trial has not been put
to the accused petitioner and thereby material irregularity has been committed. The learned 2nd Additional Sessions Judge, Jammu after setting
aside the judgment of conviction and sentence passed by the learned Chief Judicial Magistrate, Jammu remanded the case back with the direction
to proceed with the matter afresh from the stage of Section 342 Cr.P.C.
Being aggrieved by this order of learned 2nd Additional Sessions Judge, Jammu, the petitioneraccused has filed these two petitions on the
ground that the order is against the provisions of law.
I have heard the learned counsel for the parties and perused the record on the file.
The learned counsel for the petitioner has stated that the order of learned 2nd Additional Sessions Judge, Jammu is against the provisions of law
because instead of acquitting the accused of the charge he remanded the case back to the trial court. He has further stated that the case is an old
one and has become stale as such the proceedings should be quashed and the accused be acquitted in the case. On the other hand, the learned
counsel for the respondents, has submitted that the order of learned 2nd Additional Sessions Judge, Jammu is perfectly in accordance with law and
the accused is himself negligent in delaying the proceedings during the trial as such he cannot take benefit of delay in the case.
Scope of Section 342 Cr.P.C. is that all the incriminating circumstances in the prosecution evidence against the accused shall be put to the
accused for his explanation. In case of Naval Kishore Singh v. State of Bihar, (2004) 7 SCC 502 Hon'ble Supreme Court of India has held as
under:
The questioning of the accused under Section 313 Cr.P.C. was done in the most unsatisfactory manner. Under Section 313 Cr.P.C. the accused
should have been given opportunity to explain any of the circumstances appearing in the evidence against him. At least, the various items of
evidence, which had been produced by the prosecution, should have been put to the accused in the form of questions and he should have been
given opportunity to give his explanation. No such opportunity was given to the accused in the instant case. The practice of putting the entire
evidence against the accused put together in a single question and giving an opportunity to explain the same, is deprecated as the accused may not
be in a position to give a rational and intelligent explanation. The trial Judge should have kept in mind the importance of giving an opportunity to the
accused to explain the adverse circumstances in the evidence and the Section 313 examination shall not be carried out as an empty formality. It is
only after the entire evidence is unfurled the accused would be in a position to articulate his defence and to give explanation to the circumstances
appearing in evidence against him. Such an opportunity being given to the accused is part of a fair trial and if it is done in a slipshod manner, it may
result in imperfect appreciation of evidence.
Section 313 Cr.P.C. of Central Code corresponds to Section 342 Cr.P.C. of State Code. It is clearly shown that recording of statement under
Section 342 of Cr.P.C. is not a mere formality and is one of the important provisions whereby the accused is given a chance to explain all the
incriminating circumstances appearing in the prosecution evidence against him and after giving an explanation accused may enter his defence for the
same. The noncompliance of this provision properly and satisfactory manner is an irregularity. If the examination of the accused under Section 342
Cr.P.C. is perfunctory in manner then the matter is required to be remanded back to the trial court for retrial of the case from the stage at which
the prosecution was closed.
In the instant case the statement of the accused petitioner under Section 342 of the Code has been examined in a most unsatisfactory manner
and was not proper. The documentary evidence collected by the prosecution during investigation and proved during the trial has not been put to
the accused at the time of examination of the accused under section 342 of the Code. Thus learned 2nd Additional Sessions Judge was correct in
setting aside the judgment of conviction passed by the learned Chief Judicial Magistrate Jammu and remanding the case back for retrial from the
stage of recording the statement under Section 342 of the Code.
The learned counsel for the petitioner has stated that this case is an old one and it has taken 17 years before the trial court and 5 years in the
appellate court as such the case has become stale and in the interest of justice accused be set free. He has relied upon Rotash Kumar v State of
Haryana, 1988 Cr.L.J. 1423, Machander v. The State of Hyderabad, AIR 1955 SC 792 and Sudakhar Sarangi v. State, 1992 Cr.L.J. 1866. On
the other hand, the learned counsel for the respondents submitted that the delay in the trial of the case and in the appellate court was because of the
conduct of the accused and as such he cannot take the benefit of delay in the trial. Right to speedy trial has been discussed by the Hon'ble
Supreme Court of India in case P. Ramachandra Rao v. State of Karnataka, 2002 AIR SCW 1841. In approving the law laid down by the
Hon'ble Supreme Court in case of A.R. Antulay, 1992 AIR SCW 1872, it was held as under:
Therefore, the dictum in A. R. Antulay's case, 1992 AIR SCW 1872: AIR 1992 SC 1701:1992 Cri LJ 2717 is correct and still holds the field.
The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A. R. Antulay's
case, adequately take care of right to speedy trial. Court upholds and reaffirm the said propositions. The guidelines laid down in A.R. Antulay's
case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a strait jacket formula.
Their applicability would depend on the factsituation of each case. It is difficult to foresee all situations and no generalization can be made. It is
neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The time
limits or bars of limitation prescribed in the several directions made in Common Cause (I) 1996 AIR SCW 2279: AIR 1996 SC 1619:1996 Cri
LJ 2380, Raj Deo Sharma (I) 1998 AIR SCW 3208: AIR 1998 SC 3281:1998 Cri LJ 4596 and Raj Deo Sharma (II) 1999 AIR SCW 3522:
AIR 1999 SC 3524:1999 Cri LJ 4541 could not have been so prescribed or drawn. The criminal Courts are not obliged to terminate trial or
criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause (I), Raj Deo Sharma Case (I)
and (II). At the most the periods of time prescribed in those decisions can be taken by the Courts seized of the trial or proceedings to act as
reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking
into consideration the several relevant factors as pointed out in A.R. Antulay's case 1992 AIR SCW 1872: AIR 1992 SC 1701:1992 Cri LJ 2717
and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such timelimits
cannot and will not by themselves be treated by any Court as a bar to further continuance of the trial or proceedings and as mandatorily obliging
the Court to determine the same and acquit or discharge the accused. The Criminal Courts should exercise their available powers, such as those
under Sections 309,311 and 258 of Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial Judge can
prove to be better protector of such right than any guidelines. In appropriate cases jurisdiction of High Court under Section 482 of Cr.P.C. and
Articles 226 and 227 of Constitution can be invoked seeking appropriate relief or suitable directions. This is an appropriate occasion to remind the
Union of India and the State Governments of their constitutional obligation to strengthen the judiciary quantitatively and qualitatively by providing
requisite funds, manpower and infrastructure.
Further in case State v. Dr. Narayan Woman Nerukar & Anr., AIR 2002 SC 2977 the Hon'ble Supreme Court has held as under:
While considering the question of delay in trial the Court has a duty to see whether the prolongation was on account of any delaying tactics
adopted by the accused and other relevant aspects which contributed to the delay. Number of witnesses examined, volume of documents likely to
be exhibited nature and complexity of the offence which is under investigation or adjudication are some of the relevant factors. There can be no
empirical formula of universal application in such matters. Each case has to be judged in its own background and special features if any. No
generalization is possible and should be done. It has also to be borne in mind that the Criminal Courts exercise available powers such as those
under Sections 309, 311 and 258 of the Cr.P.C. to effectuate right to speedy trial. In the present case these aspects have not been considered by
the High Court while quashing the proceedings. Therefore, the order of the High Court quashing proceedings merely on ground that there was
unnecessary delay in conclusion of the trial would not be proper.
From the above it emerges that the delay in trial is not always a ground for quashing the proceedings and acquittal of the accused thereof. Each
case depends upon its own facts and circumstances. It is also to be seen as who was responsible for delaying the trial in the case.
In the instant case the allegation against the accused is that he misappropriated the money while he was posted as Postal Assistant in Postal
Department and chargesheet presented on 10.7.1985. 23 witnesses and voluminous record was collected in the matter for establishing the
accusation of the accused petitioner. The prosecution evidence was closed in the trial court on 24.1.1997 and after recording the statement of the
accused under Section 342 of the Code the case was fixed for arguments, as the accused did not lead any evidence in defence. From the perusal
of interim orders passed from time to time by the trial court, it stands proved that the final arguments could not be heard because of the accused
and it was only in the year 2002 the arguments were completed and the order of conviction was passed. Similarly in the appellate court also the
delay was caused because of the accused. In such circumstances, the accused can not take benefit of his own wrongs. The accusedpetitioner was
himself responsible for delay in trial and also in the appellate court and as such he can not raise the plea that because of delay the case has become
stale and the accused shall be acquitted in the matter after quashing the proceeding.
For the foregoing reasons, I would hold that there is no merit in these revision petitions and the order passed by 2nd Additional Sessions Judge
Jammu is perfectly legal and does not suffer from any infirmity. Accordingly, these criminal revision petitions are dismissed along with connected
Cr. M. Ps. No. 30/2007 and 31/2007.