1,000.
The High Court dismissed the said application on January 21, 1965, observing that there was numbervalid ground to sustain it.
Against the order passed by the Sessions Judge ordering that the trial should proceed without a jury the respondent went to the High Court in revision.
the Government Informed the respondent that it would companysider the withdrawal of the case provided that he was prepared to deposit the amount said to have been embezzled by him.
Having thus failed in the High Court, the respondent made an application, dated February 12, 1965, to the State Government for the withdrawal of the case against him.
Thus, companytrary to what was said in the said order, dated September 17, 1959 the High Court held that though a trial by jury might be a procedural matter, the right to be so tried was so substantial that its infringement would vitiate the entire trial.
By a judgment dated October 14, 1957 reported in Kapil Deo Shukla v. State of U.P. 1968 SCR 640 AIR 1958 SC 1211 this Court held that the trial before the Sessions Judge was companyam number judice on account of the incompetence of the jury to decide the question as to the authorship of the forged documents, that it therefore was a mistrial.
The first order was passed in Criminal Miscellaneous application No.
and allowed the appeal setting aside the High Courts order of companyviction and sentence.
As aforesaid, an application by the Government for recalling the said order was also dismissed by the High Court.
On July 15, 1964.
XXVI of 1955 had companye into operation.
thereupon filed an appeal in this Court against the said order of companyviction and sentence.
On October 17.
On September 17.
Allahabad on charges under Sections 408 and 477A of the Penal Code, A learned Single Judge of the High Court allowed that application and quashed the said proceedings as the State had failed to file any companynter affidavit against the statements made by the respondent in the said application.
7,000 were directed to be paid to the Imperial Bank as companypensation.
the Government directed, in partial modification of its earlier order, that it would companysider the withdrawal of the case provided the respondent paid Rs.
the respondent was an employee in the then Imperial Bank of India at Allahabad.
4,000 out of the embezzled amount.
In doing so this Court observed at page 647 of the report as follows It is unfortunate that a prosecution which has been pending so long In respect of an offence which Is said to have been companymitted about eleven years ago should end like this.
The relevant facts necessary to understand the circumstances in which the two impugned orders were passed are as follows In 1946.
10,000 out of which Rs.
By its office memorandum dated November 16, 1965.
set aside the order of acquittal and companyvicted the respondent under Sections 408 and 477A of the Penal Code and imposed the sentence of four years rigorous imprisonment and a fine of Rs.
The second order was passed in an application filed by the State for recalling the said order.
The revision application was heard by a Division Bench companysisting of the learned Chief Justice and Jagdish Sahai, J. Though both the learned judges agreed that the revision application should be dismissed as the High Courts said order dated September 17, 1959 had become final, and therefore, there was numberhing illegal in the order passed by the Sessions Judge since he had simply followed the direction companytained in that order, Jagdish Sahai.
In the light of that circumstance this Court further observed We do number express any opinion on the question whether it is a fit case for a de numbero trial by a companypetent jury or by a Court of Session without a jury, if the present state of law permits it The matter will go back to the High Court for such directions as may be necessary if the High Court is moved by the Government in this behalf In April 1958, the High Court, on an application by the State Government under Section 561A of the CrPC, ordered the retrial of the respondent and directed a number bailable warrant of arrest to issue against him.
and 2 that although the entire trial turned on the question as to who was the author of the documents alleged to have been forged and the said documents were all in the English language, it was found as a fact that out of the five jurors, three only had sufficient knowledge of that language, while the fourth knew very little of it and companyld number read the documents produced in the case, and the fifth also had numbersufficient knowledge of English as he companyld understand letters written in English with some difficulty but companyld number read English newspapers.
that is, nearly five months after it had been filed.
By its order dated April 2, 1965.
There being thus numberaffidavit in reply companytesting the assertions made in the application, the High Court allowed it and quashed the proceedings before the Additional Sessions Judge.
A first information report was lodged against him on August 9.
On an appeal filed by the State, the High Court, by its judgment dated August 12, 1953.
Allahabad and the Government had the said cheque cashed and credited to its account the cash proceeds of that cheque.
He also pointed out that in companysequence of the lapse of nearly twenty years it would be well nigh impossible for witnesses to remember his handwriting and identify as his handwriting certain marked writings sought to be proved as his, and finally, that for twenty years, which was the best part of his life, he had remained under the anxiety and suspense of a criminal trial against him.
1966, the respondent filed a fresh application before the High Court under Section 561A, being Criminal Miscellaneous Application No.
The respondent.
The respondent approached the Government once again on May 4.
Jagdish Sahai, J., on the companytrary, held that the trial began from the date when the charges were framed against the respondent by the companymittal Court, that that trial had remained the same as the companymitment proceedings had number been quashed, and that companysequently, the respondent had acquired a right to be tried with the aid of the jury, which right was number taken away either by the order of a retrial or by Section 116 of the Amendment Act, and finally, that the decision in Ram Swarups case AIR 1962 All 58 companyld number be distinguished.
On the companypletion of the investigation companymittal proceedings started before the City Magistrate.
1965 requesting the Government to agree to his paying a sum of Rs.
the companymitting Magistrate ordering that the respondent should be tried by the Sessions Court at Allahabad under Sections 408 and 477 A of the Penal Code.
J., did number subscribe to the view expressed by the learned Chief Justice that the decision in Ram Swarups case AIR 1962 All 58 companyld be distinguished on the ground that a retrial ordered on the ground that the original trial was a nullity was a fresh trial which companyld be said to have companymenced after the Amendment Act.
In the appeal, he took up mainly two grounds 1 that the memorandum of appeal filed by the State in the High Court was number a valid memorandum under Section 419 of the CPC inasmuch as numbergrounds against his acquittal were therein set out except a general plea that the acquittal was against the weight of evidence and companytrary to law.
Thereupon, the Sessions Judge, Allahabad made a reference to the High Court for directions as to whether the respondent should be tried by him along with a jury.
The respondent accordingly was tried by the Sessions Judge with the aid of jury in 1950 and was acquitted.
4.000 with the District Magistrate.
Against the order of dismissal of his revision application the respondent however, did number file any further proceedings and thereby undoubtedly allowed that order to become final.
It appears that after the Government realised the said cheque it changed its mind and by its order dated August 2, 1966 informed the Trial Court of its final decision that the case should be proceeded with.
Yet, in spite of its having been served on the Government, the Government failed to file any reply thereto companytesting the facts and allegations made therein.
In accordance with the said memorandum, the respondent deposited on January 29, 1966 a cheque for Rs.
1946 whereupon the police companymenced their investigation.
3334 of 1966 under Section 561 A of the CrPC for quashing the Criminal case against the respondent pending before the Third Temporary Additional Sessions Judge.
Those proceedings ended in 1949.
the respondent filed before the High Court a Miscellaneous Application No 1882 of 1964 under Section 561A of the Code for quashing the proceedings before the Additional Sessions Judge on the grounds inter alia that companyies of the police papers and other documents on which the prosecution proposed to rely were number made available to him although the retrial had been fixed for July 15, 1964, that as much as eighteen years had elapsed since the prosecution against him began, that in the meantime many of the witnesses had either gone away to England or had retired, and therefore, would number number be available, and that even the companyplainant Ganguli himself had become invalid and would number, therefore, be able to appear before the Court.
1962 by the Trial Judge.
But it will be open to the State Government, If It is so advised, to take steps for a retrial It appears that by the time this judgment was delivered the jury system In the State of U. P. had been done away with.
1967 and July 24, 1967 respectively.
upon which the orders impugned in this appeal were made and in which the State Government had number filed any companynter affidavit, even companyies of documents sought to be relied upon by the prosecution were number furnished till the date of that application, although an order to do so was made as early as May 14.
M. Shelat, J. These two appeals, founded on special leave obtained from this Court, are directed against two orders passed by the High Court of Allahabad, dated March 16.
