MADHYPKUMAR J. PREM v. AMRUT NATHU — 1990 DIGILAW 19 (GUJ)

K. J. VAIDYA, J. ( 1 ) CAN any Court deny justice to the complainant on the ground that the case has become old particularly when the complainant on his part has contributed nothing to occasion the delay in trial ? This is a question in focus round which the merits of the acquittal appeal are appreciated hereunder. ( 2 ) THIS acquittal appeal arises out of the judgment and order of acquittal dated 17/03/1981 rendered in Criminal Case No. 723 of 1980 by the learned Metropolitan Magistrate Court No. 10 Ahmedabad wherein the respondent accused Amrut Nathu and three others who came to be tried for the offence punishable under Secs. 323 504 and 114 of I. P. C. came to be acquitted. ( 3 ) IN brief the appellant before this Court is an injured complainant one Mr. Madhupkumar J. Prem at the relevant time a Municipal Cooperator and a practicing Advocate in the lower Courts at Ahmedabad. The respondent-accused herein are the neighbors of the said complainant. The alleged incident in question took place on 22/03/1980 at about 13. 45 hrs. On that day the complainant was at his house since some guests were to visit his house on account of the engagement of his younger brother. It is the case of the complainant that an iron cot after it was washed was kept for drying-out under the sun-shine behind his house. At this point of time respondent-accused suddenly got enraged and started giving filthy abuses by alleging that bugs from the cot of the complainant were passing into their cot. In midst of all this the accused No. 1 - Amrut Nathu took up a stone and gave a blow with it on the head of the complainant and the accused No. 3 - Bai Ratan also threw the stone injuring the left hand thumb and finger of the complainant which resulted in the bleeding. This incident was witnessed by his son Harsh and one professor whose name the complainant did not know. Thereafter the complainant summoned a mobile van in which he was carried to Smt. Shardaben Chimanlal Lalbhai General Hospital Saraspur Ahmedabad and was admitted as an indoor patient and was discharged from the hospital on 23/03/1980 as he had to attend the engagement function. Thereafter the complainant summoned a mobile van in which he was carried to Smt. Shardaben Chimanlal Lalbhai General Hospital Saraspur Ahmedabad and was admitted as an indoor patient and was discharged from the hospital on 23/03/1980 as he had to attend the engagement function. On the basis of these facts the N. C. complaint was filed before Gomptipur Police Station on the very day of the incident. Since the complaint filed was a complaint for an offence under Sec. 323 being N. C. complaint the complainant thought it proper to file another complaint before the trial Court on 25/03/1980 as the proceeding two days viz. 23rd and 24/03/1980 were holidays being Sunday and Ramnavmi respectively. The trial Court after registering the said complaint as Criminal Case No. 723 of 1980 ordered the issuance of summons against the respondent-accused for offences punishable under Secs. 323 504 506 and 34 I. P. C. by an order dated 25/03/1980 Thereafter it appears that for one reason or the other the matter was lying in a cold storage for about an year i. e. about 27 times the matter did appear on the board at the regular interval but could not be proceeded with for one reason or another. On 17/03/1981 the matter was called out and on behalf of the complainant an application for adjournment was submitted which came to be rejected by the trial Court holding - to quote the same - that the complaint is old one having been filed in March 1980 and therefore the application was rejected. While acquitting the accused persons the trial Court is its judgment further observed that despite the reasonable time given no evidence has been produced. The case was filed in March 1980 aid that plea of the same came to be recorded on 4/10/1980 by prolonging the case for indefinite period it will not serve the interest of justice. Hence in absence of the evidence the accused are acquitted. ( 4 ) FELLING aggrieved and dissatisfied by the impugned judgment and order of acquittal the complainant has preferred the present acquittal appeal which came to be admitted is long as back on 30/07/1981 ( 5 ) MR. Hence in absence of the evidence the accused are acquitted. ( 4 ) FELLING aggrieved and dissatisfied by the impugned judgment and order of acquittal the complainant has preferred the present acquittal appeal which came to be admitted is long as back on 30/07/1981 ( 5 ) MR. Panchal learned Advocate appearing for the appellant- complainant submits that the impugned order of acquittal is patently illegal and unjust in as much as the observation made by the trial Court in its judgment to quote the same - despite reasonable time being given no evidence has been produced - is totally incorrect as could be seen on verification of the Rojkam proceedings Mr. Panchal in order to make good this submission has taken me through Rojkam proceedings of the case. Mr. Panchal further submitted that the complainant who is a busy practicing lawyer had practicing all throughout but for the 3 dates attended the Court and yet as borne out from the Rojkam for no fault of him his case could not be taken up earlier through present in the Court. Mr. Panchal submits that whatever adjournments the complainant bad sought for were for just and valid reasons under the followed circumstances viz. (i) the reasons for seeking first adjournment on 12-9-1980 was for attending some after- death religious ceremony of family member; (ii) the reason for seeking second adjournment on 20-1-1981 was that since he was contesting the municipal election scheduled to be held on 25-1-1981 he was busy with the same. Thereafter the case was adjourned to 29-1-1981 (iii) the reason for seeking third management form on 29-1-1981 was that it was the day for counting of the votes and his presence was necessary Mr. Panchal further submits that such a simple thing as plea of the accused which hardly taxes any time and which could have been recorded at the earliest. came to be recorded after about six months. Right from the date of filing the complaint before the Court the complainant had remained present all throughout but for three occasions. However the case went on being adjourned from time to time for no fault of the complainant as could be been from the record. Ultimately the plea of the accused came to be recorded on 4/10/1980 and on the very day the accused Nos. However the case went on being adjourned from time to time for no fault of the complainant as could be been from the record. Ultimately the plea of the accused came to be recorded on 4/10/1980 and on the very day the accused Nos. 1 3 and 4 sought permission seeking exemption which was granted that is to say worry of these ground for remaining present before the Court was over Mr. Panchal submits that whatever adjournments the complainant had sought for were for must and honest reasons and not by way of any scheming device of unnecessarily protracting the proceedings so as to keep the sword of criminal proceedings dangling over the head of the accused persons with a view to harass them. Mr. Panchal further submitted that when the accused person had obtained exemption from the Court they wore saved of all possible inconveniences in attending the Court. Under such circumstances where was the notification for the trial Court to throw away the complaint in such a chevalier fashion. Mr. Panchal submitted that the criminal complaint filed by the complainant is a genuine one and that this genuineness is fully demonstrated by the standing circumstances viz. (i) summoning of the police van by the injured complainant immediately after the incident; (ii) immediately going to the hospital to dress-up the injuries where Dr. H. M. Bhatia and Ajit H. Shah M. O. Shardaben Chimanlal Lalbhai General Hospital examined and treated him; and (iii) the medical certificate disclosing the nature of the injuries. Further in order to satisfy the conscience of this Court Mr. Panchal has placed on record a copy of medical certificate issued by Dr. D. G. Shah who examined him on 23/03/1980 Mr. Panchal has also shown to me the original certificate issued by Dr. Shah from his file. At this juncture I do not see any reason to doubt the truth and genuineness of the said medical certificate which is found to be issued on a printed letter-head of the said hospital duly sealed and signed by Dr. D. G. Shah. The injuries shown in the said certificate sro as under :1 CLW 6 x 1 x 0. 5 cm. over left parietal region. 2 CLW 1 x 0. 5 cm. over right little finger. 3 Small abrression over dorsum of right thumb 0 5 x 0. S cm. D. G. Shah. The injuries shown in the said certificate sro as under :1 CLW 6 x 1 x 0. 5 cm. over left parietal region. 2 CLW 1 x 0. 5 cm. over right little finger. 3 Small abrression over dorsum of right thumb 0 5 x 0. S cm. 4 X. ray report reveal no fracture over skull or hand. According to Mr. Panchal this certificate prima facie shows that the concerned accused had given blow with the stone on the parietal region of the complainant as revealed by injury No. 1 and so far as the other injuries are concerned it appears that the complainant must have received the same while making attempts to save and protect his face and head by covering the said part by right hand. It appears that by a father hand of providence the complainant escaped with minor Injuries as the in juries on the head could have proved quite serious as the parietal region is a most vital 2nd delicate part of the body. Mr. Panchal finally submitted that the accused has been wrongly acquitted and the case deserves to be remanded to the trial Court. ( 6 ) AS against the above Mr. Padia the learned Advocate (appointed) for the accused made the following two submissions: (I) That the offence alleged against the accused by this time has become a decade old and therefore stale enough to merit any consideration at this stage. (ii) That having regard to the trivial nature of alleged offence assuming without admitting that there is some substance in a complaint against accused this Court need not interfere at such a belated stage for the simple reason that by remanding the matter ultimately this Court would be unnecessarily delaying the hearing and disposal of these fresh cases which already as the board of the trial Court. ( 7 ) NOW the aforesaid two submissions of Mr. Padia are little over-simplification of the situation and that apart at the very out-set it must be stated that the question involved in this appeal is not merely to adjudge whether the order of acquittal is right or wrong as the larger question of concern and anxiety is the very questionable method and manner of disposing of the criminal case. ( 8 ) NOW regarding first submission of Mr. ( 8 ) NOW regarding first submission of Mr. Padia it can not be denied that the offence alleged by now is factually ton years old but that by itself can not improve the situation any more in the favour of accused as the complainant can legitimately re-question this submission of Mr. Padia by asking this Court as to how and who is responsible for the said delay? It is an undisputed fact that neither before the trial Court nor before this Court the complainant has done anything as a result of which the case has been dragged on to be labeled old and ten years old Thus to accept the first submission of Mr. Padia would simply mean that this Court also should commit ant perpetrate the very mistake which trial Court unfortunately appears to have committed caught unaware Mr. Padia should not forget that in this case acquittal is based on (i) a baseless assertion of the trial Court that despite opportunities being given to the complainant no evidence came to be led by him and (ii) that the case has become old one which stands contradicted by Rojkam proceeding itself as a matter of fact today the poor complainant stands wronged not only by the accused who caused physical injury to him but by the trial Court as well which refused to redress the said wrong by doing injustice Such a method and manner of disposing of the case is nothing but a shoer injustice on a doctor refuse medical treatment to a person on the ground that his disease had become old ? It is indeed too difficult to understand as to how the citizen can be denied his legitimate right of complaint being decided on merits on the ground that the case had become old one particularly when the complainant was not at fruit for the said delay ? It is indeed too difficult to understand as to how the citizen can be denied his legitimate right of complaint being decided on merits on the ground that the case had become old one particularly when the complainant was not at fruit for the said delay ? And yet surprisingly that has been done in the present case If such 8 light-hearted practice and tendency of dubbing the case as old one and then to get it disposed of is not checked and controlled in time then having regard to the mounting arrears of criminal cases in the trial Court one would not be surprised to find most of the cases becoming order and then to be ready to be disposed of with a straight jacket formula of the case being old one Our Courts are already over burdened with already of cases and this threatening situation of badkload is gradually drifting from bad to the worse with everyday that is passing Courts are working under trying and almost rating conditions As stated earlier the Courts which are already over- burdened with the arrears of word are Going to be further over-burdened in view of the following augmenting factors viz. (i) the incurring spate of fresh litigation because of the growing sense of awareness or the citizens about their legal and Constitutional rights; (ii) the paucity of Judges to handle the cases; (iii) utter neglect of the judicial system in the country; (iv) the proceeding protraction trickeries of litigants; (v) strikes; (vi) riots etc. If that is so then such cheep unjust old case disposal formula (emphasis supplied) is allowed to be countenanced lightly the criminal justice can ultimately turn out to be a mere mechanical force of receiving and registering the cases on the one end and stamping of she same as disposed of at the other end in total disregard of the substantive and procedural laws of the 1and and fundamental right of the citizen to get justice from the Court. This is just not done and cannot be permitted. ( 9 ) THE next submission of Mr. Padia that the alleged offences under Sec. 323 and 506 (2) of I P. C. is trivial enough to be interfered with at such a belated stage and that too in an acquittal appeal has no substance. This is just not done and cannot be permitted. ( 9 ) THE next submission of Mr. Padia that the alleged offences under Sec. 323 and 506 (2) of I P. C. is trivial enough to be interfered with at such a belated stage and that too in an acquittal appeal has no substance. Firstly because the injury received by the complainant can not be said to be that light that the person of ordinary sense and temper would Dot complain of harm caused thereby. In a case of Mrs. Veeda Menzes v. Y. H. Ibrahimkhan and Anr. reported in 1966 Cri. L. J. 1489 the Supreme Court while discussing the meaning of the word trivial character occurring in Sec. 95 of the I. P. C. has said that whether an act which amounts to an offence is trivial would depend upon (i) the nature of the injury (ii) the position of the parties (iii) relation between them (iv) situation in which they are placed (v) the knowledge or intention with which the offending act is done; and (vi) other related circumstances. Applying this test it is very clear that the alleged offence can not be said to be of a trivial chorister. As a matter of fact but for the hand of providence an injury on the parietal region could have been as serious as it could be. Secondly merely because the offence alleged against the accused is an offence under Sec. 323 506 (2) of IPC that by itself also does not mean that complaint of such offence can be thrown off without the same being examined on merits. It is not right to contend that only serious offences like murder rape riots dictate etc. are to be tried seriously. It is not right to contend that only serious offences like murder rape riots dictate etc. are to be tried seriously. The duty to act justly fairly legally and reasonably does not depend upon what type of the cases the Court is called upon to try-rather the whole emphasis is upon a subjective sense of a Judge as to how honestly and efficiently the judicial duty is to be performed Thirdly in order to get justice from the Court an aggrieved victim of crime has to (i) spend some amount on litigation by way of an advocate fees and other expenses; (ii) undergo some physical and mental stresses and strains while travelling the distance to the Court; (iii) wait expectantly for sometime in a crowded court-room till the case is called out sometime with sometime without accommodation to seat; (iv) more often then not to return home tired and frustrated because of some strikes or adjournment; (v) lose some income if the leave is to be obtained without pay for attending the Court proceedings. Now even after having undergone all this physical mental and financial hardships and inconvenience. over and above the insult and injury received at the hands of the accused if the cases are to be disposed of with much more emphasis on disposals rather than justice an aggrieved victim of the crime is bound to nourish the feeling of being down and dejected - as if his act of filing complaint against the accused praying for justice was an offence and that the hardship and inconvenience listed above the hands of the accused if the cases are to be disposed of with much more emphasis on disposals rather than justice an aggrieved victim of the crime is bound to nourish the feeling of being down and dejected - as if his act of filing complaint against the accused praying for justice was an offence and that the hardship and inconveniences listed above suffered by him were by way of punishments strangely a situation where the complainant feels punished first before the accused can be punished at all. If the trial Court cares to remain alive to this pitiable picture of hard labour for justice by an aggrieved victim of the crime then perhaps such disposals can end. If the trial Court cares to remain alive to this pitiable picture of hard labour for justice by an aggrieved victim of the crime then perhaps such disposals can end. And if the trial Court ignoring the labour for justice put in by the victim of the crime fails to record recognize and accept this dissatisfaction in time then same has all potentiality to gradually building up socio-psychological reactions to the judicial system shattering the faith of the people in the administration of justice; and if this happens the clock of culture and civilization will start beating backwards to these days were awaited by spirit of vendetta scores will be settled in street. ( 10 ) THE result of the above discussion is obviously an order of remand with the following objects in mind viz. (i) let not the trial Court labour under dis-illusionment that the High Court with many more matters of importance to be attended under the pressure of work will not bother to mind such small matters and that it can persist with impunity in such manifestly indiscrect acts of disposal without the same being deprecated and disapproved (ii) let not an aggrieved victim of the crime leave court-doors down and dejected with an impression that justice is illusory and idle formality on papers with sound and fury of arguments and in substance signifying nothing; (iii) let not the accused gloat under any dis-illusionment that once by chance he secures acquittal or discharge thereafter he will not be made answerable to the process of law. Consciousness is the only basis on which one can expect orderliness in the situation can be resorted. And thus this order of remand is an attempt to impart that sense of consciousness to the aforesaid needy components of our judicial system if that can improve and restore the situation in trial Courts. The High Court being at helm of affairs in matters of protecting the constitution Constitutional rights of the citizen with all its power of superintendence cannot afford to feel any in giving directions to the trial Courts when it feels that the tendency of cheap disposals increasingly growing in the trial Courts is detrimental to the citizens and overall judicial system. ( 11 ) IN the result this appeal succeeds and is allowed and the order of acquittal is hereby quashed and set aside. ( 11 ) IN the result this appeal succeeds and is allowed and the order of acquittal is hereby quashed and set aside. Having regard to the facts and circumstances of the case the matter is remanded to the trial Court with a direction - (i) to restore the Criminal Case No. 723 of 1980 on the board and dispose of the same on merits according and dispose of the same preferably on or before 30/04/1990 (iii) that the exemption granted earlier to the accused persons will have to be cancelled after giving them notice in this regard in order to see that the time when the trial proceeds their presence is secured; (iv) that Mr. Panchal the learned Advocate for the complainant under takes and assures this Court that he will ask the complainant to report to the trial Court the result of this appeal on or before 28/02/1990 and will get date fixed for further hearing and onward trial of the ease from the Court (KMV) appeal allowed. .