ORDER
Dalveer Bhandari, J.
1. This appeal is directed against the judgment of the Special Judge/Additional Sessions Judge, Delhi dated 6.2.1978 by which the appellant was convicted under Sections 193/181 of the Indian Penal Code for perjury. In accordance with the provisions of Section 344 of the Code of Criminal Procedure, the appellant was sentenced to simple imprisonment for three months and a fine of Rs. 300/-. In default of payment of fine, the appellant was further directed to undergo simple imprisonment for one month.
2. The present appeal is an off shoot of corruption case No. 29 of 1977, State Vs. Radhey Shayam Garg and others. The arguments which have been advanced in this case are confined to the interpretation of the provisions of the law. Therefore, I do not deem it appropriate to burden this judgment with the detailed facts. The facts which are absolutely necessary for disposing of this appeal are recapitulated as under :
3. The appellant, Vishnu Bhagwan was the Complainant and the case was registered on the Complainant’s statement dated 3.9.1976. The learned Special Judge came to the conclusion that the appellant wilfully and knowingly made a false statement before the Court with the object of shielding the accused person in the corruption case. The Court issued a show cause notice and reply to the said notice was filed on 6.2.1977. In the reply, it is indicated that the incident had taken place one and a half year ago. It is also mentioned in the reply that his statement, Exhibit-PW-2A, Memo – PW-6/P and Statement-PW-7/A do not form part of the judicial proceedings and Section 344 Cr. P.C. is not applicable to the proceedings before a Special Judge. This argument was rejected by the learned Special Judge. The learned Special Judge arrived at the conclusion that according to the
Section ‘8’ of the Criminal Law Amendment Act, 1952, a Special Judge can take cognizance of offences, without the accused being committed to trial. He also mentioned in his order that in trying the accused persons, he has to follow the procedure prescribed by the Code of the Criminal Procedure for the trial of warrant cases by the Magistrates. On this understanding of law and procedure the learned Special Judge tried and convicted the accused appellant.
4. Aggrieved by the order of the learned Special Judge, present appeal has been preferred by the accused/appellant. Mr. B.B. Lall, the learned Senior Counsel, submitted that there has been gross violation of the provisions of the Code of Criminal Procedure and the conviction recorded by the learned Special Judge is totally unsustainable in law. Mr. Lall, learned counsel for the appellant has drawn my attention to Section 344 of the Cr. P.C. Section 344 reads as under :
344. Summary procedure for trial for giving false evidence (1) If, at the time of delivery of any judgment or final order disposing of any judicial proceeding, a Court of Session or Magistrate of the first class expresses an opinion to the effect that any witness appearing in such proceeding had knowingly or wilfully given false evidence or had fabricated false evidence with the intention that such evidence should be used in such proceeding, it or he may, if satisfied that it is necessary and expedient in the interest of justice that the witness should be tried summarily for giving or fabricating, as the case may be, false evidence, take cognizance of the offence and may, after giving the offender at reasonable opportunity of showing cause why he should not be punished for such offence, try such offender summarily and sen tence him to imprisonment for a term which may extend to three months, or to fine which may extend to five hundred rupees, or with both.
(2) In every such case the Court shall follow, as nearly as may be practicable, the procedure prescribed for summary trials.
(3) Nothing in this section shall affect the power of the Court to make a complaint under Section 340 for the offence, where it does not choose to proceed under this section.
5. Mr. Lall submitted that both in the reply and in the statement of accused, the appellant had pleaded not guilty and in the reply he categorically denied the charges, levelled against him. Therefore, it was incumbent on the Court to try the accused/appellant, according to the procedure prescribed by the law. Admittedly, there has been no trial in this case and according to appellant, his conviction is unsustainable and liable to be set aside.
6. In the Section 344 Cr. P.C., the words “try such offender summarily” have been specifically incorporated. The learned counsel for the appellant submitted that Section 344(1) require conformity with the procedure provided for summary trials and in case where the accused pleaded not guilty, there has to be a trial and any conviction without the trial would be clearly violative of the provisions of Section 344, Cr. P.C.
7. The learned counsel appearing for the State, Mr. Bhutalia submitted that no prejudice has been caused to the appellant because a show cause notice was given and reply was also filed by the accused appellant. The conviction was recorded only after reply of the appellant was taken into consideration.
8. On the other hand, the learned counsel appearing for appellant vehemently contended that the procedure as laid down under Section 344 Cr. P.C. has to be followed and no conviction can be recorded unless there is a trial. In reply, the accused/appellant pleaded not guilty and denied the charges. According to the plane language of the Section 344 Cr. P. C., the Court had not option but to try the offender in the facts and circumstances of the case.
9. The legislature in sub-section 2 of Section 344 has clearly laid down that the trial shall follow, as nearly as may be practicable, the procedure prescribed for the summary trials under the said section.
10. Mr. Lall has also drawn my attention to Sections 252 to 254 in the Chapter 20 of the Code of Criminal Procedure, 1973. These Sections are reproduced as under :
252. “Conviction on plea of guilty – If the accused pleads guilty, the Magistrate shall record the plea as, nearly as possible in the words used by the accused and may, in his discretion, convict him thereon.
253. Conviction on plea of guilty in absence of accused in petty cases.-
(1) where a summons has been issued under Section 206 and the accused desires to plead guilty to the charge without appearing before the Magistrate, he shall transmit to the Magistrate, by post or by messenger, a letter containing his plea and also the amount of fine specified in the summons.
(2) The Magistrate may, in his discretion, convict the accused in his absence, on his plea of guilty and sentence him to pay the
fine specified in the summon, and the amount transmitted by the accused shall be adjusted towards that fine, or where a pleader authorised by the accused in this behalf pleads guilty on behalf of the accused, the Magistrate shall record the plea as nearly as possible in the words used by the pleader and may, in his discretion, convict the accused on such plea and sentence him as aforesaid.
254. Procedure when not convicted._
(1) If the Magistrate does not convict the accused under Section 252 or Section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defense.
(2) The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness
directing him to attend or to produce any document or other thing.
(3) The Magistrate may, before summoning any witness on such application, require that the reasonable expenses of the witness
incurred in attending for the purposes of the trial be deposited in Court.”
11. Conjoint reading of Sections 252 to 254 lead to irresistible conclusion that in the case where accused does not plead guilty, the Magistrate has to proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defense.
12. Mr. Lall placed reliance on the judgment of Dr. M.M. Pasricha Vs. State of Punjab; The Punjab Law Reporter Vol. 18(1978) 160. The Division Bench of Punjab High Court in the said case in somewhat similar circumstances, set aside the conviction because requirement of Section 344(1) was not followed by the Trial Court which according to the said judgment is mandatory and could not be given a go by.
13. In my considered view in the instant case, the procedure, as laid down by Section 344 of the Code of the Criminal Procedure, 1973, has not been followed by the Special Judge and the conviction of the appellant cannot be sustained. In view of this conclusion, I do not think it necessary to deal
with other arguments of the learned counsel for the appellant.
14. It is the basic principle of Criminal Jurisprudence that in cases where the accused has not pleaded guilty, there has to be a trial before recording the conviction. The learned Special Judge had given go by to the mandatory requirements of law. In this view of the matter, this court is left with no option but to set aside the conviction of the appellant.
15. Ordinarily, I would have remanded the case and directed that the accused be tried afresh in accordance with law, but in the instant case, the conviction was recorded in 1978 and that also because the learned Special Judge did not follow the procedure as laid down under the Criminal Procedure Code. Therefore, remanding the case for fresh trial after 21 years would hardly be proper, particularly, in the facts and circumstances of this case. In any event the appellant had faced the rigmarole and agony of the criminal proceedings for over 21 years.
16. On consideration of the totality of the facts and circumstances of this case, the conviction of the appellant is set aside. Consequently the appeal is allowed and disposed of.