BHOORAJI Vs. STATE OF M P

JUDGEMENT

(1.) THIS case has sluggished for nearly 9 years and the end is yet not in sight, as direction for retrial seems inevitable.

(2.) APPELLANTS , 11 in number, were put to trial way back in January, 1992, and after a protracted trial for about 5 years, were convicted under Sections 148, 323/149 and 302/149 of IPC and sentenced to various punishments including imprisonment for life, vide judgment dated 23 -8 -1996, passedin Special Case No. 54/1996 (old Number 2/92), by the Court of Addl. Sessions Judge, Dhar, specific as 'Special Court' under Section 14 of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989, (short, 'the Act'). It is significant to note that except the appellant Nos. 4 to 6 (who are themselves member of Scheduled Tribes) others (non -Scheduled Tribes) were additionally charged and held guilty under Section 3(2)(v) of the Act, but no separate conviction or sentence for the said offence has been recorded against them by the Trial Court. It is a common ground that the Special Court below took cognizance of the said offences, both under the Indian Penal Code and the Act, directly as a Court of Original Jurisdiction, without the case being committed to it by a Magistrate.

(3.) WE have heard Shri C.L. Yadav, learned counsel for appellants and Shri G, Desai, Dy. Advocate General for respondent -State on the said application. While Shri Yadav strongly pressed the point raised in the application, Shri Desai made an unsuccessful attempt to convince us that it was a mere error of omission curable under Section 465 of the Code of Criminal Procedure (for short, 'the Code'). He further submitted that no such objection was taken at the trial by the appellants who are in no way prejudiced nor a failure of justice has in fact occasioned, by the said error or omission. The fall out of the order for re -trial would be that all the witnesses, both of the prosecution and the defence once examined in full should be called again, the whole chief -examination and cross -examination, re -examination, questioning of accused under Section 313 of the Code, hearing of arguments and preparation of judgment, have to be done once again, pointed out the counsel. He further maintained that the appellants who did not raise the objection at the trial cannot now be heard on that aspect for the first time in this appeal. Reliance has been placed on a Supreme Court decision in State of H.P. v. Gitaram, (2000) 7 SCC 452.