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Bal Mukand S/O NaraIn Shankerji Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberCriminal Misc. Appln. No. 204 of 1959
Judge
Reported inAIR1960Raj80; 1960CriLJ517
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 342 and 561A
AppellantBal Mukand S/O NaraIn Shankerji
RespondentThe State
Appellant Advocate Mahavir Singh, Adv.
Respondent Advocate R.A. Gupta, Dy. Govt. Adv.
DispositionPetition dismissed
Cases ReferredMachander v. The State of Hyderabad
Excerpt:
- - there is no good reason whatsoever for interference by way of revision. 241. the accused did not complain of any prejudice either in the first court or in his appeal or in his revision petition no......reason whatsoever for interference by way of revision.the application is, therefore, dismissed.'4. learned counsel urges that the mandatory provision of section 342 cr. p. c. was not complied with in the case and, therefore, there was an obvious error in the judgment of this court, which could be corrected under the inherent powers of this court and a fresh hearing should, therefore, be granted. reliance was placed on shri ram v. emperor. air 1948 all 106 and chandrika v. rex, air 1949 all 176. the present case is entirely of a different nature than the two cases which were cited. in the first case, the sentence which was awarded by the court was in excess of jurisdiction but that fact was not brought to the notice of the court when it purported to decide the revision. in the second.....
Judgment:
ORDER

K.L. Bapna, J.

1. This is a petition under Section 561-A of the Code of Criminal Procedure.

2. The petitioner Bal Mukand was convicted by the First Class Magistrate, Ajmer under Section 457 of the Indian Penal Code on 17-10-1958 and sentenced to six months' R. I. His appeal was dismissed by the learned Addl. Sessions Judge, Aimer on 6-6-1959 and the revision petition was dismissed by this Court on 11-6-1959. The present petition was submitted on 25-6-1959 and is a petition in revision under cover of Section 561-A Cr. P. C., praying for granting a re-hearing of the case.

3. It may be mentioned that the earlier criminal revision was argued by Mr. Chandmal, a senior counsel on behalf of the petitioner and the order of this Court is in the following words:

'This is an application by the petitioner Bal Mukand. I have gone through the judgments by both the courts and find that the case against the petitioner is proved beyond any manner of doubt. There is no good reason whatsoever for interference by way of revision.

The application is, therefore, dismissed.'

4. Learned counsel urges that the mandatory provision of Section 342 Cr. P. C. was not complied with in the case and, therefore, there was an obvious error in the judgment of this Court, which could be corrected under the inherent powers of this Court and a fresh hearing should, therefore, be granted. Reliance was placed on Shri Ram v. Emperor. AIR 1948 All 106 and Chandrika v. Rex, AIR 1949 All 176. The present case is entirely of a different nature than the two cases which were cited. In the first case, the sentence which was awarded by the Court was in excess of jurisdiction but that fact was not brought to the notice of the Court when it purported to decide the revision. In the second case, the appeal of the casewas heard and decided on a day prior to the one which had been fixed for hearing and in the absence of counsel. In the present case, the petitioner was represented by a senior counsel who was heard before the decision was given by this Court.

5. I am of opinion that the mere fact that a certain new aspect of the case can be brought before the Court which had not been urged in revision a few days earlier, will not enable the petitioner to the indulgence of a fresh hearing being granted to him. Section 561-A of the Code of Criminal Procedure is only meant for the exercise of the power in a certain limited number of eases mentioned in the section. It does not empower the Court to grant a fresh hearing, because learned counsel subsequently engaged by the petitioner may have more persuasive powers or may be able to find a few more points to be urged before the Court which may not have been urged or may have been abandoned by another counsel on the earlier occasion.

6. On the merits too, there is no substance in this petition.

7. The petitioner was caught red-handed inside the premises of the complainant at about mid-night and the charge was that he had committed house-breaking by night for the purposes of theft. A box containing certain articles was said to have been removed from its proper place and found a few paces away from the accused. There was also another person with the accused who had also been caught red-handed, but he has not yet been tried, as he had absconded. When the challan was put up, the petitioner Bal Mukand was examined under Section 251-A of the Code of Criminal Procedure and he denied the facts which had been alleged against him. After the close of the prosecution case, the learned Magistrate while purporting to examine the accused under Section 343 Cr. P. C., only put him one question -- 'What had the accused more to say?' The Magistrate seemed to have in mind whatever the accused had stated earlier under Section 251-A Cr. P. C., and put only the above question. The accused gave a certain answer suggesting that he had been wrongly implicated in place of certain other persons, who were members of a criminal tribe.

8. Taking the facts as above, we have now recent decisions of the Supreme Court that a defect in the examination under Section 342 Cr. P. C. is of no consequence unless it may be shown that prejudice has been caused. The cases are Moseb Kaka Chowdhry v. State of West Bengal, (S) AIR 1956 SC 536 and K.C. Mathew v. State of Travancorc-Cochin, (S) AIR 1956 S. C. 241. The accused did not complain of any prejudice either in the first court or in his appeal or in his revision petition No. 202/1959 disposed of on 11-6-1959. In the present petition, the matter of prejudice has been mentioned only in paragraph 4 of the petition and is an the following words:

'The above examination is in fact no examination and the accused has been materially prejudiced to the extent which cannot be gauged,'

9. I may at once state that a bare allegation that a material prejudice has been caused is of no consequence. The prejudice which has been caused must be stated. Learned counsel has not stated what explanation the accused could have of being found in the house of the complainant at mid-night beyond what the accused had stated in his examination under Section 251-A Cr. P. C. I am of opinion that no material prejudice to the accused has been shown to have been caused by the defective rumination under Section 342 Cr. P. C. Learned counsel relied on Machander v. The State of Hyderabad,(S) AIR 1955 SC 792, where their Lordships quashed the conviction of the accused, because the circumstances relied for ms conviction were not put to the accused in his examination under Section 342 Cr. P. C. I am of opinion that the later decisions of the Supreme Court referred to above (S) AIR 1956 SC 536 and (S) AIR 1958 SC 241 are more weighty.

10. This petition has no force and it is accordingly dismissed,

11. Learned counsel for the accused wanted a certificate that the case was a fit one for appeal to the Supreme Court. The prayer is rejected.


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