Vijai Singh v. Ram Lakhan — 1980 DIGILAW 1202 (ALL)

JUDGMENT P.N.Goel 1. This appeal is directed against the order dated 9-2-1974 passed by the Additional Munsif-Magistrate, Mainpuri in criminal case no. 250 of 1973 acquitting the respondents of an offence punishable under sec. 379 IPO and directing the two buffaloes to be handed over to Ram Lakhan, respondent no, 1. 2. The case arose out of a complaint filed by Vijai Singh, resident of village Dwarikapur, police station Kurra, district Mainpuri. Vijai Singh alleged that one buffalo and one she-buffalo were stealthily taken away from the house on the night intervening 19th and 20th July, 1970. He further alleged that the 3 respondents were found in possession of the said cattle on 20-7-1970 by Ram Bharo-sey, Lakshmi Narain and Tulsi Ram. By order dated 1-2-1974, the learned Magistrate expunged the statement of Vijai Singh. He further held that the evidence of Lakshmi Narain and Tulsi Ram was that of chance witnesses. He further remarked that Lakshmi Narain and Tulsi Ram may be inimical to tie respondent and that there was probability that the respondents were implicated on account of partibandi and enmity. 3. The grievance of the appellant's counsel is that the case was not properly tried and, therefore, the order of acquittal was not justified. 4. Learned counsel for the parties have been heard. The present case will be governed by the provisions of the old CrPC, 1898. An offence of theft punishable under sec. 379 is to be tried as a warrant case. The offence punishable under sec. 411 IPC is also to be tried as a warrant case. The record of the court below shows that Vijai Singh, PW 1, was examined on 19-4-1971, that Lakshmi Narain and Tulsi Ram, PWs 2 and 3 were examined on 31-7-1971. On that day Vijai Siingh was further examined. Then on 12-10-1971 Vijai Singh, Lakshmi Naraia and Tulsi Ram were cross-examined under sec. 256 CrPC. The record then shows that on 21-11-1973, the case was adjourned to 21-12-1973 for further evidenced the complainant. On 21-12-1973 the case was adjourned to 1-2-1974 for complete evidence under sec. 256 CrPC. On 1-2-1974 no person was present on behalf of the complainant. Therefore, no further evidence was produced. The Magistrate fixed 5-2-1974 for orders. 256 CrPC. The record then shows that on 21-11-1973, the case was adjourned to 21-12-1973 for further evidenced the complainant. On 21-12-1973 the case was adjourned to 1-2-1974 for complete evidence under sec. 256 CrPC. On 1-2-1974 no person was present on behalf of the complainant. Therefore, no further evidence was produced. The Magistrate fixed 5-2-1974 for orders. Then the Magistrate passed further order that the respondents' counsel urged for the disposal of the case, that the case was fixed for further cross-examination of Vijai Singh on application 54-C, dated 22-7-1972, that on that date the complainant could not be cross-examined on account of his absence, that therefore, the statement of Vijai Singh could not be read and be expunged. The case was ordered to be put up on 5-2-1974 for judgment. On 5-2-1974, the Magistrate was on leave. Hence the judgment was pronounced on 9-2-1974. 5. Learned counsel for the appellant pointed out that on 2-2-1974, the appellant moved an application before the Magistrate that on 14-12-1973 he was told that the case would be taken up on 2-2-1974, that when he came on 2-2-1974, he learnt that the case was taken up on 1-2-1974, that on 1-2-1974 the case was adjourned to 5-2-1974, that the order fixing 5-2-1974 be vacated and the appellant be given an opportunity to lead further evidence. The appellant's counsel pointed out that on this application the Incharge Additional Munsif Magistrate passed order on 2-2-1974, "put up on the date fixed". Then on 5-2-1974 the Incharge Additional Munsif Magistrate fixed 12-2-1974 because the Presiding Officer (Additional Munsif Magistrate) was on leave. The appellant's counsel pointed out that in the face of the order dated 5-2-1974 passed by the Incharge Additional Munsif Magistrate, the Additional Munsif Magistrate pronounced judgment on 9-2-1974. 6. The application dated 2-2-1974 shows that the Additional Munsif Magistrate rejected the application on 9-2-1974 on the ground that the appellant was negligent in producing evidence. It is evident from the facts mentioned above that after 5-2-1974 the case was to be taken up on 12-2-1974 as ordered by the Incharge Additional Munsif Magistrate. It is rather surprising that the Additional Munsif Magistrate rejected the application dated 2-2-1974 of the appellant on 9-2-1974 and also pronounced judgment on the same day. By doing so the Additional Munsif Magistrate did not hear the appellant in respect of the application dated 2-2- 1974. It is rather surprising that the Additional Munsif Magistrate rejected the application dated 2-2-1974 of the appellant on 9-2-1974 and also pronounced judgment on the same day. By doing so the Additional Munsif Magistrate did not hear the appellant in respect of the application dated 2-2- 1974. The order rejecting his application of the said date obviously has been passed at the back of the appellant. It was in the fitness of things that the Additional Munsif Magistrate should have taken the case on 12-2-1974 and then after disposing of the application dated 2-2-1974, he should have decided the case, In case he was inclined to reject the application dated 2-2-1974. In these circumstances the appellant's counsel has rightly urged that the case was not properly tried by the Addl. Munsif Magistrate and that tie appellant was prejudiced in the trial. 7. Learned counsel for the respondents has urged that after a lapse of about 10 years the case should not be remanded to the court below for a proper trial. He also pointed out that the buffaloes were not in the custody of the respondents and that they remained in the custody of the Supurdgar. The Additional Munsif Magistrate as said above,, decided the case on 9-2-1974. The appellant filed appeal on 27-3-1974. On 28-3-1974 this Court passed order reading - "Meanwhile unless the buffaloes have already been handed over to the accused, they shall not be handed over to them but will be kept in the custody of the Supurdgar in whose custody they had been given by the court below. Learned counsel appearing on behalf of the appellant Vijai Singh has undertaken to pay the supurdgar for feeding the cattle. The amount to be paid will be determined by the court below." The above order goes to indicate that the respondents did not take the buffaloes from the supurdgar. Had they taken the buffaloes from the supurdgar, the appellant's counsel would not have undertaken to pay the supurdgar for feeding the cattle. 8. The respondents' counsel has relied on an observation made by the Supreme Court in the case of Machander v. The State of Hyderabad, AIR 1955 SC 792 . In this case the accused was not questioned under sec. 342 of the old CrPC. The Supreme Court observed as follows ;- "We were asked to reopen the question and, if necessary, to remand the case. In this case the accused was not questioned under sec. 342 of the old CrPC. The Supreme Court observed as follows ;- "We were asked to reopen the question and, if necessary, to remand the case. But we decline to do that. Judges and magistrates must realise the importance of the examination under S. 342 Criminal PC and this Court has repeatedly warned them of the consequences that might ensue in certain cases. The appellant was arrested in December 1950 and has been on his trial one way and another ever since, that is to say, for over 4/1-2 years. We are not prepared to keep persons who are on trial for their lives under indefinite suspense because trial Judges omit to do their duty. Justice is not one sided. It has many facets and we have to draw a nice balance between conflicting rights and duties. While it is incumbent on us to see that the guilty do not escape it is even more necessary to see that persons accused of crime are not indefinitely harassed. They must be given a fair and impartial trial and while every reasonable latitude must be given to those concerned with the detections of crime and entrusted with the administration of justice, limits must be placed on the lengths to which they may go." In the present case the record clearly shows that on 21-12-1973 the case was fixed for 1-2-1974 for complete evidence under sec. 256 CrPC. On 1-2-1974, the appellant was absent and had not brought any further evidence. In view of this the allegation of the appellant in his application dated 2-2-1974 that he was asked to bring his further evidence on 2-2-1974 cannot easily be believed. 9. The appellant should have corns on 1-2-1974 and led further evidence in the case. 10. The only fault which in the present case is that on 2-2-1974 the Incharge Additional Munsif Magistrate passed order that the case be put up on 5-2-1974, the date fixed by the Additional Munsif Magistrate on 1-2-1974. Then on 5-2-1974 the Incharge Additional Munsif Magistrate fixed 12-2-1974. The Additional Munsif Magistrate ignored this order and decided She case on 9-2-1974. In this way no doubt the appellant was prejudiced. But it has also to be borne in mind that by remanding the case respondents will be harassed. There will be harassment to the appellant also. Then on 5-2-1974 the Incharge Additional Munsif Magistrate fixed 12-2-1974. The Additional Munsif Magistrate ignored this order and decided She case on 9-2-1974. In this way no doubt the appellant was prejudiced. But it has also to be borne in mind that by remanding the case respondents will be harassed. There will be harassment to the appellant also. The cattle did not remain in the custody of the respondents. They remained in the custody of the Supardgar. The appellant will have to pay the feeding charges of the cattle. In all these circumstances it does not appear appropriate that for the mistake committed by the Additional Munsif Magistrate, the case be sent back for further trial according to law. The Additional Munsif Magistrate considered the evidence before him and then acquitted the respondents. The appellant was not an eye witness. In the circumstances mentioned above it is not expedient to interfere with the order of acquittal. 11. In view of the above, the appeal is dismissed. Appeal dismissed.