MANOHARLAL LOHE Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THIS is the revision of the accused Manoharlal against the lower appellate Court's order whereby the convictions and sentences in four criminal cases were set aside and those cases were remanded for decision afresh, after recording separate evidence in each case.

(2.) FOUR prosecutions had been launched in the trial Court, each under Section 409 of the I. P. C. , against the applicant-accused Manoharlal Lohe, Sub-Post Master of Ukuwa Sub-Post Office for defalcating various amounts of savings bank accounts ' of certain account holders during the respective periods as shown below: (Contd. on Col. 2)Cri. Case No. Period Amount of d 348 of 77 8-7-88 to 7. 7. 89 Rs. 199o/-dopoa 340 of 77 11-7-70 to 10. 7-71 Rs. 5000/. depos 350 of 77 13. 4. 72 to 12. 4-73 Rs. 601/. (Ra, chandiakala ; R deposited by Ru depoeited by Su The trial Court, as is evident on scrutiny of the order-sheets of the above four criminal cases and also on scrutiny of the depositions or copies thereof filed in these cases, is found to have recorded the whole oral evidence of all these four cases, only in one case i. e. 348 of 1977 and in the other three cases, either the carbon copies thereof or retyped statements of the ones recorded in 348 of 1977, were filed. The defence evidence of one witness was equally recorded in one case only and the copies thereof were filed in the remaining cases. However, examination of the accused under Section 313 of the Code was done separately in each case. As for the judgment, Cri. Case No. 349 of 1977 was clubbed with Cri. Case No. 348 of 1977, the judgment wherein governed also Case No. 349 of 1977. Likewise, Cri. Case No. 331 of 1977 was clubbed with Case No. 350 of 1977, the judgment wherein governed the Case No. 351' of 1977 also. In Case No. 348 of 1977, the applicant-accused, on his conviction under Section 409 of the I. P. C. , was sentenced to one year's R. I. with the fine of Rupees 5,000 and in default of fine, to a further term of six months' R. I. In Case No. 349 of 1977, though the applicant-accused was convicted under Section 409 of the I. P. C. , no separate sentence was considered necessary, to be passed, in view of the sentence already awarded in Case No. 348 of 1977. In Case No, 350 of 1977, the applicant-accused, on his conviction under Section 409 of the I. P. C. , was sentenced to imprisonment till the rising of the Court and to fine of Rs. 3,000 and in default of fine, to six months' R. I. in the last case No. 351 of 1977, the applicant-accused, on his conviction under Section 409 of the I. P. C. , was sentenced to imprisonment till the rising of the Court and to pay the fine of Rs. 3,000 and in default of fine, to six months' R. I. Against these convictions and sentences in the four cases, the applicant-accused preferred four respective appeals in the Court of Session, The learned Addl. Sessions Judge, vide his composite order dated 154-80 with respect to all the four appeals, quashed the order of convictions and sentences as passed by the trial Court, in all the four case and remanded the cases for recording evidence afresh and for disposing of each case separately. The grounds on which the cases were remanded were that (i) the trial Court had acted illegally, in not passing separate sentence in Cri. Case No. 349 of 1977; (ii) the trial Court had acted illegally in consolidating all the four cases, or in any case, sets of two cases each, and in recording common evidence in all these cases, in contravention of Section 218 of the Cr, P. C, 1973, in the absence of the petition of the applicant-accused in writing for joint trial, as mandatorily enjoined by the proviso to Sub-section (1) of Section 218 ibid. Being aggrieved with this order of remand, the accused has filed the present revision.

(3.) THE learned Counsel for the applicant-accused has urged before me that the order of remand, as passed by the lower appellate Court, is unjust and not proper, inasmuch as, the consolidation of all the cases had been done by the trial Court with the implicit consent of both sides, with no objection of any one whatsoever, in the matter of any illegality or any irregularity in the procedure for trial. It is, further, urged that the applicant-accused had never made any grievance either in the trial Court or even in the course of appeals, in the matter of any prejudice caused to him in the trial of the four cases against him because of the consolidation of the four cases by the trial Court. It is, no doubt, true that in the memos of appeal filed by the applicant-accused in the lower appellate Court, the applicant-accused is not found to have challenged the procedure for trial, and he has simply assailed the order of convictions and sentences, purely on merits. The learned Counsel for the applicant-accused has equally filed the petition before me, making a clear and categorical commitment that consolidation of four cases in the trial Court was with the applicant-accused consent and that hi? had no objection to the same. In the present petition, he has further committed that by the recording of all the evidence for all the four cases in one case only, no prejudice has been caused to him, at all, and that he would never raise any technical grievance whatsoever in the matter of such procedure for trial by consolidation of four cases, as has been done by the trial Court. It is also reiterated in the petition that the evidence as recorded in the cases, more particularly in case No. 343 of 1977 be read as be read as evidence1 for the other three case as well. The Panel Lawyer appearing for the non-applicant State has nothing to say in this matter.