STATE OF GUJARAT v. Yogendrakumar B. Setalvad — 1993 DIGILAW 176 (GUJ)

K J. VAIDYA, J. ( 1 ) THIS group of six Appeals by the State of Gujarat is directed against the impugned judgments and orders dated 27-9-1984, rendered in Criminal Case No. 1489 of 1979 and Five others by Mr. A. R. Bhau, the learned Metropolitan Magistrate, Court No. 11, Ahmedabad, wherein the two respondents, viz. , Yogendiakumar Bhaskerrao Setalvad and his brother Jatin Bhaskerrao Setalvad, who came to be tried for the alleged offences punishable under Sections 408, 467, 477-A and 114 of I. P. C. were at the end of trial ordered to be acquitted on the Sole ground that despite the opportunities given to the prosecution, it failed to examine any witness. ( 2 ) FEW relevant facts The prosecution case in brief is to the effect that Respondent nos. 1 and 2 are the real brothers. Respondent No. l was serving as an Agent in Khanpur branch of Ahmedabad Peoples Co-operative Bank Limited during the relevant period i. e. , from December, 1970 to March, 1978. Respondent No. 2 opened an account in the said Bank Branch in the name of s. R. Construction. It is alleged by the prosecution that respondent No. 1 by misusing his position as an agent, through the respondent No. 2 had not deposited any amount in the bank, he prepared false vouchers and kept the same in the bank record and thereby illegally credited various amounts in the account of S. R. Construction and thereby allowed withdrawal of the same. It is with this modus-operandi that both the respondents are alleged to have conspired with each other and committed misappropriation of the bank money to the tune of Rs. 4,81,000/ -. Ultimately, on the basis of these allegations, the Bank Officer Mr. Shantilal Ambalal Shah filed a Criminal complaint for the alleged offence punishable under sections 408,467, 477-A and 114 of ipc before the Crime Branch, Ahmedabad against both the respondents wherein after investigation was over, six different chargesheets were submitted in the Court of learned metropolitan Magistrate, Ahmedabad. Accordingly on 12-7-1979, the learned Magistrate framed six separate charges and on recording the plea, both the respondents pleaded not guilty and claimed to be tried. Accordingly on 12-7-1979, the learned Magistrate framed six separate charges and on recording the plea, both the respondents pleaded not guilty and claimed to be tried. It further appears from the record that all these cases went on being adjourned from time to time without recording any evidence and ultimately on 27-9-1984, that is to say after the period of five years, the learned Magistrate quite care-freely acquitted the respondents on the following grounds :- (1) That though the charges were framed on 12-7-1979 and the plea of the respondents came to be recorded on the very day, the cases went on being adjourned from time to time for various reasons; (2) That though as many as five years have elapsed after framing up of the charges, not a single witness has been examined by the prosecution. Not only that but the prosecution has not been able to give any explanation as to why it has been unable to examine the witnesses. (3) That after taking charge of the Court in the month of June, 1984, the prosecution was given about 3 months to examine the witnesses and yet showing totally unconcerned approach, not a single witness come to be examined. (4) That not to examine prosecution witness for five long years and thereby to keep the sword of prosecution hanging over the head of the respondents for an indefinite period was indeed very harsh to the respondents. It is under these circumstances that the State of Gujarat feeling aggrieved by the impugned orders of acquittal has preferred the present group of six appeals. ( 3 ) MR. K. P. Raval, the learned APP appearing for the appellant State while challenging the impugned judgments and orders of acquittal submitted that the same are ex-facie illegal and have resulted into serious failure of justice. The learned APP further submitted that Respondent No. 1 was an agent of the Bank and it was he who having conspired with his brother [respondent no. 2] committed serious offences where the huge amount of Rs. 4,81,000/- came to be misappropriated. Not only that but in order to cover the said mis-appropriation, the respondent no. l also forged and fabricated bank documents. 2] committed serious offences where the huge amount of Rs. 4,81,000/- came to be misappropriated. Not only that but in order to cover the said mis-appropriation, the respondent no. l also forged and fabricated bank documents. The learned APP further submitted that thus having regard to the gravity and seriousness of the offences once the charge was already framed, the learned Magistrate should not have lightly acquitted the accused on the sole ground that prosecution has not examined any witness. The learned APP quite fairly admitted that much can certainly be said against the prosecution for not examining the witnesses before the court during the span of five years and that it was not his effort to defend the indefensible lapse on the part of the prosecution in not examining the witnesses. The teamed APP further submitted that the question involved is not merely whether prosecuting agency has committed any lapse or not if prosecuting agency has committed any lapse, that is the issue which has to be taken note of by the concerned higher ups. But merely because the prosecuting agency had committed some lapse that cannot permit the Court also to commit same mistake knowingly. The learned APP submitted that having regard to the gravity and seriousness of the offence, the learned Magistrate should not have felt himself helpless in issuing warrants against the prosecution witnesses who were not coming forward to give evidence before the Court for whatsoever reasons. Mr. Raval in support of his submission as to under what circumstances, the trial dragged on and on for five long years without examining any witness, has submitted a chart containing the Statement of particulars showing the factors which delayed the trial, the same reads as under:- Sr. No. No. of Criminal Appeals Amount involved [rs. Mr. Raval in support of his submission as to under what circumstances, the trial dragged on and on for five long years without examining any witness, has submitted a chart containing the Statement of particulars showing the factors which delayed the trial, the same reads as under:- Sr. No. No. of Criminal Appeals Amount involved [rs. ] No. of adjournments taken by Defence Advocate No. of adjournments on account of absence of PP & by Prosecution No. of adjournments because of Court not working on leave Holiday [1] [2] [3] [4] [5] [6] 01 66/85 1,000 27 40 11 02 67/85 85,000 -- -- -- 03 68/85 1,50,000 -- -- -- 04 69/85 90,000 -- -- -- 05 70/85 95,000 -- -- -- 06 71/85 60,000 -- -- -- 4,81,000 No. of adjournments on account of settlements No. of adjournments for evidence No. of Adjournments for charge sheet No. of Adjournments for supplementary Charge sheet No. of Adjournments for issuing summons [7] [8] [9] [10] [11] 8 12 18 [in all the above cases] 4 2 ( 4 ) THE learned APP further submitted that these are the warrant triable cases, and therefore, once the charges were framed the learned Magistrate should not have acquitted the accused finding fault with the prosecution without performing his own duty in securing the presence of the witnesses by the coercive methods available under the Code. The learned APP on the basis of above submissions finally urged that the impugned orders of acquittal in all these matters are not only illegal and unjust but the same have also resulted into serious failure of justice, and accordingly therefore, they are required to be quashed and set aside and further that the cases be remanded to the trial court. ( 5 ) AS against the above, Mr. Nagardas K. Shah, the learned advocate appearing for the respondents submitted that these are not the cases which call for any remand. He submitted that the prosecution was clearly at fault in not examining the witnesses before the Court for which it was given sufficiently long time viz. , 5 years. Mr. Shah further submitted that what else the learned Magistrate could have done when the prosecution itself dezed for five years without doing anything on its part. Mr. He submitted that the prosecution was clearly at fault in not examining the witnesses before the Court for which it was given sufficiently long time viz. , 5 years. Mr. Shah further submitted that what else the learned Magistrate could have done when the prosecution itself dezed for five years without doing anything on its part. Mr. Shah further submitted that the learned Magistrate has given cogent reasons for acquitting the accused and that the same cannot be said to be unjust. Mr. Shah further submitted that the respondents have paid-up more than the amount actually due to them. He further submitted that the prosecution by this time have become pretty stale and during all these five years, the respondents have greatly suffered physical, mental and financial strees of frequenting the court. He further submitted that when the complainant and other prosecution witnesses were somehow negligent in attending the Court to give evidence, why the respondents should be made to suffer for that at this belated stage. Mr. Shah further submitted that what indeed is the guarantee that even on remanding these cases, they will turn up to give evidence before the Court? Mr. Shah further submitted that the alleged offence is of the year 1979 and more than 13 years have elapsed thereafter. Under these circumstances, by remanding the matters at such belated stage, the trial would obviously get protracted further and that it would be tantamount to the persecution of the respondents rather than the prosecution. The learned advocate for the respondents further submitted that the speedy trial under Article 21 of the Constitution of India is a precious fundamental right of the citizen and in the instant cases, by remanding these case, the same would be denied to the respondents for no fault of their own. On the basis of these submissions, Mr. Shah finally urged that even if it is found that the impugned order was illegal, then even having regard to the overall facts and circumstances of these cases, as highlighted above, these are not the matters which are required to be remanded to the trial court, and accordingly, the same may not be remanded. Shah finally urged that even if it is found that the impugned order was illegal, then even having regard to the overall facts and circumstances of these cases, as highlighted above, these are not the matters which are required to be remanded to the trial court, and accordingly, the same may not be remanded. ( 6 ) HAVING heard the learned advocates appearing for the respective parties at length, it must be stated at the outset that the submissions made by the learned APP have a considerable force and therefore, the same deserve to be accepted. As a matter of fact, so far as submissions made by Mr. Shah are concerned, it may also be stated at the outset that there is no substance in it. In fact to accept the same would be tantamount to endorse and encourage the judicial escapism. 6. 1 The above chart submitted by the learned APP speaks volume as to how, why and under what circumstances, the trial got protracted for five long years, and from that it cannot be said that respondents also have not contributed in delaying the cases, and accordingly were in way less guilty for the said delay. It is quite true that the prosecution has failed to examine the witnesses, but then incidentally it may also be stated that this is not a new phenomenon altogether as it has come to the notice of this court since quite sometime that number of such cases are just thrown-off mid-stream by the Courts without any effective trial, on the stock ground of either (i) the cases have become old, or (ii) the complainant was absent when the cases were called out, or (iii) despite sufficient time given, the prosecution failed to examine the witnesses, etc. , etc. Now none of the aforesaid grounds more particularly when the charges are framed can be said to be legal grounds for acquitting the accused as the Court has equally, rather more serious and important duty of doing the justice. , etc. Now none of the aforesaid grounds more particularly when the charges are framed can be said to be legal grounds for acquitting the accused as the Court has equally, rather more serious and important duty of doing the justice. These days, by and large, we do find number of criminal cases go on failing due to the non-prosecution which is clearly attributable either to the inefficient or corrupt practices adopted by the process serving agency or the Investigating officer or the learned PP incharge of the cases, and therefore, to that extent the said three can be said to be guilty for the said non-prosecution. This undoubtedly is the matter of very serious concern for anyone, which the State government will have to consider in all seriousness to control and regulate the same by taking some effective, stringent departmental actions against the erring agencies. But under no circumstances, die non-prosecution of the cases on the pan of prosecuting agency can be permitted to write-off on the one hand the serious charge against the accused and on the other hand to deny the aggrieved citizen their fundamental right under the Constitution to have justice from the Court. After framing of the charge, if for whatsoever reasons, the prosecution is found to be either accused or guilty of non-prosecution then in that case, the situation is such wherein before the trial court, there are two groups of accused - one the original accused who is charged under the relevant section of the particular Act, and the second one is the prosecuting agency for misconducting itself in not discharging duty and letting off the accused by non- prosecution. Thus merely because the prosecution stands accused or guilty of non-prosecution, the trial court is not justified in acquitting the accused. As a matter of fact, if the prosecution is found to be prima-facie guilty of non-prosecution, then it is an unquestionable duty of every court to report the remissness on the part of said agency at once to the concerned higher-ups, and thereafter, should also further issue warrants or even non- bailable warrants to the concerned witnesses to secure their presence for examination purposes. Now instead of discharging this positive duty towards the cause of justice, if the trial court opts for easier and negative way of acquitting the accused then that is nothing but a serious deriliction of duty on its part which is by no means less serious then the deriliction of duty on the part of prosecution in not prosecuting the accused. In short, once the charge is framed, the accused cannot be acquitted on the sole ground either of non prosecution by the prosecution or non-trial by the Court It may further be stated that the trial court cannot be permitted to be oblivious to the important fact that the prosecuting agency is merely an agency to voice and ventilate the grievances of aggrieved citizen before the Court and thereafter to do everything needful to assist the Court in rendering the justice, under the circumstances, if for whatever reasons this prosecuting agency commits some default and does not examine the witnesses and as a result if the accused are to be acquitted that would be in substance denying the justice to the aggrieved citizen who on the one hand has no locus standi to directly approach the Court to conduct the trial and on the other hand, the prosecution fails him to get the justice. Under such embarrassing and quite paradoxical circumstances where the aggrieved citizen has to go. Is he to break his head against the wall for not getting the justice anywhere. This aspect is required to be clearly understood by all concerned i. e. , prosecution agencies as well as trial courts. One can understand the mistake committed by the Court either in appreciating the evidence or interpreting some provisions of the law, but there is no defence left open to any court or for that purpose to any prosecuting agency even to commit any error on the simple, elementary, first principles of the procedure as to how to conduct the trial. It is hoped that what is observed here percolates deep down, both - on the trial court as well as prosecuting agency and henceforth will stop themselves from foisting injustice on the aggrieved citizen. It is hoped that what is observed here percolates deep down, both - on the trial court as well as prosecuting agency and henceforth will stop themselves from foisting injustice on the aggrieved citizen. ( 7 ) TURNING to the facts of the instant cases, merely because the prosecuting agency has for whatever reasons failed to discharge its duty, having regard to the gravity and seriousness of the offence, the learned Magistrate having once taken cognizance of the offence and framed charges wherein an amount of Rs. 4,81,000/- came to he misappropriated, he should not have felt hopless in pulling-up the prosecuting agency in securing presence of the witnesses by resorting to some coercive methods of issuing warrants, and if needs be, be issuing even further the non-bailable warrants. The learned magistrates ought not to have been oblivious to the fact that the amount misappropriated was as huge as that of Rs. 4,81,000/- which ultimately belong to the people who had deposited it with their utmost trust and faith in the Bank. It is true that subsequently the said amounts have been paid-up by the respondents and this circumstance may be one of the good ground to be put-forward before the trial court while praying for lenient view to be taken in the matter of quantum of sentence, but merely because the respondents have paid-up the entire amount that by itself is not sufficient to wipe-off the charge entirely giving clean bill of acquittal to the respondents and that too on the sole ground that the prosecution failed to examine the witnesses. The learned Magistrate further should not have been oblivious to the fact that the types of offence as alleged in the instant cases have become quite rampant, wide spread and alarmingly increasing in the country. Day in and day out, we come across several such cases where the nationalised banks are found to be duped by fraud practises and thereby millions and millions of rupees of the people are just lost from the Banks treasury. In a given case, depending upon some exceptionally adequate and special reasons at the end of the trial, after recording the order of conviction, the same may be a good ground to be taken into consideration to show mercy on an individual who has become victim of the circumstances, while awarding the sentence. In a given case, depending upon some exceptionally adequate and special reasons at the end of the trial, after recording the order of conviction, the same may be a good ground to be taken into consideration to show mercy on an individual who has become victim of the circumstances, while awarding the sentence. However, as against the same, if the discretion of the Court to show mercy is casually exercised; without application of mind; then the same can get translated into serious and irrepairable damage to the society. Such misplaced sympathy from the Court often deflates the very object of the penal provisions as person would continue to commit such frudulant offences and go on misappropriating public money and in ca. sc if he is not detected then he will enjoy all-gotten fruits with impugnity and in other cases in which if and when he is detected, he will cleverly repay the money in order to get out from the clutches of the Law by undergoing some light sentence. Under such circumstances, no court should allow judicial mercy to be lightly exploited by scheming criminal master minds. ( 8 ) FURTHER, as stated above, nodoubt, it is true that prosecution is guilty of not examining the witness for five years long. It is equally true that person found guilty has to be punished, but for the wrong committed by one person, other cannot be punished. If we turn to the facts of the instant cases, for the guilt of non-examination of witnesses for five years, instead of punishing the prosecuting agency what is infact is being punished is the cause of Justice. How strange indeed. In fact such serious lapse on the part of prosecution should have been brought to the notice of the superior officers under whom ihe process serving agency. Investigating Officers, Public Prosecutors are ordinarily serving, by inviting their attention for appropriate action in the said regard. [ref: State of gujarat vs. Sypoi Alambhai Jamalbhai, reported in 31 (1990), 1 GLR p. 122]. Instead of doing right thing in the right direction, the learned Magistrate quite surprisingly acquitted the accused because he was not happy with the prosecution in properly conducting the trial before him. [ref: State of gujarat vs. Sypoi Alambhai Jamalbhai, reported in 31 (1990), 1 GLR p. 122]. Instead of doing right thing in the right direction, the learned Magistrate quite surprisingly acquitted the accused because he was not happy with the prosecution in properly conducting the trial before him. In tact having regard to the type of question involved in the present cases, this Court time and again has given directions to the trial courts as to how and in what manner the Courts powers are to be judiciously exercised firstly in securing the presence of the witnesses who are found reluctant to appear before the court, and secondly to control the process serving agency which for whatever reasons sometime are found to be quite remiss in effectively serving the summons and/or warrants or sometimes deliberately playing foul with the Courts order. This aspect has been duly discussed in the following judgments of this Court :-[1] The State of Gujarat vs. Lalit Mohan, reported in 2 (1989) GLR p. 952. [2] The Stale of Gujarat vs. Nagin Amra Vasava and Ors. reported in 23 (1982)1, GLR page 661. [3] The State of Gujarat vs. Butasingh Indarsingh, reported in 31 (1990) 1, glr page. 26. [4] The State of Gujarat vs. Gulamnabi @ Fakir Mohamad and Anr. , reported in 31 (1990) 1, GLR page-60. [5] The State of Gujarat vs. Sypoi Alambhai Jamalbhai, reported in 31 (1990)1, GLR page 122. [6] Madhupkumar j. Prem vs. Amrut Nathu and Ors. reported in 31 (1990) 2, glr page 801. All the learned Magistrates are bound to keep track with the above important judgments of this Court which are purely on the elementary principles of procedure which every Court is bound to know in order to see that mistakes which are often surfacing do not occur in future. ( 9 ) ONCE again turning to the arguments of Mr. All the learned Magistrates are bound to keep track with the above important judgments of this Court which are purely on the elementary principles of procedure which every Court is bound to know in order to see that mistakes which are often surfacing do not occur in future. ( 9 ) ONCE again turning to the arguments of Mr. Shah that because 13 years have elapsed since alleged offence took place, the matter should not be remanded, then in that case, there will be thousands and thousands of such cases wherein on the one hand we will find Courts go on framing the charges and on the other hand the prosecuting agency for whatever reasons may not examine the witnesses and ultimately on these grounds, the court will acquit the accused with rubber stamped reasoning namely that the prosecution failed to examine the witnesses; etc. , etc. If this is to be countenanced lightly, then in no case justice can ever be brought home against any accused. In a given case, the High court may exercise the discretion and may not remand the case, but unfortunately, this case does not fall within that category. This is a case wherein once the charge is framed, if after examining the prosecuting witnesses, the accused is entitled to any benefit of doubt, that doubt can be given to him. If on the contrary , the prosecution was able to bring home the charge, the order of conviction has got to be recorded. While awarding the sentence, the Court can certainly take a lenient view bearing in mind the fact that the amount is paid back, but under no circumstances the court can be permitted to short-circuit and abort the justice, as has been done in the instant cases. Sometimes, one can understand the tendency of the prosecution witnesses in not coming to the Court for giving evidence, or the prosecuting agency in not examining the witnesses before the court, but it is difficult to understand the patent indifference and dis-inclination on the part of the court to exercise its powers to secure the presence of witnesses to conduct the trial after the charges are framed. It may also be observed that if for whatever reasons the investigating Agency failed to serve the process of the Court on the witnesses and it is because of that only the witness could not remain present before the Court, it is a different thing altogether. But otherwise, if the Bank employees who are public servants, if they after filing the complaint wilfully abstain from appearing before the Court, then in that case, they are liable for an explanation and departmental proceedings for letting down the prosecution case. The prosecution is a matter of public policy. The trial is a matter of public interest and no witness, more particularly the public servant who is a prosecution witness has any right to abandon or sabotage the prosecution case by not remaining present before the court. One can easily vizualise some such situation and circumstances whereby the complainant fails to appear before the Court to give evidence. They are either because (i) summons to appear before the Court are not duly served upon him lor whatever reasons ; and/or (ii) having filed the complaint, subsequently either because being pressurised or persuaded or because of some threat or inducement or personal sympathy or mercy arising for the accused he is hesitant to appear before the Court to give evidence; and/or (iii) the complaint was false to the knowledge of the complainant and the idea behind filing complaint was only to harass the accused by making him frequently visit the court and to tire him out physically, financially and mentally. Thus, so far as the aforesaid second and third grounds are concerned, the complainant having put the criminal law in motion in all seriousness and thereafter framing of the charge, if he chooses to abandon the prosecution in a mid way, he must be held answerable for trifling with the court proceedings, using it as a lever against the accused. Such attempts to play with Court proceeding should never be taken lightly. For non prosecution, the complainant can be asked to give explanation and in a given case, for the malicious prosecution, he should also be appropriately punished. Where the complainant could not remain present before the court for no fault of his own, he cannot be held responsible for the same. For non prosecution, the complainant can be asked to give explanation and in a given case, for the malicious prosecution, he should also be appropriately punished. Where the complainant could not remain present before the court for no fault of his own, he cannot be held responsible for the same. Not to be strict with prosecuting agency in cases where after the charge is framed it failed to examine the witnesses, is not only to encourage its gross negligence but in a given case, the same may encourage corruption of siding with the accused ? If the allegation is true. No court, therefore, should take negligence of the prosecution in examining the witness lightly and must be strict and vigilant enough to see that after framing of the charges cases do not fail either due to the remissness of the prosecuting agency or its ulterior motives to indirectly benefit the accused. Mr. Shah, the learned advocate appearing for the respondents stated that in these cases special Public prosecutor was appointed to conduct the trial and he also on several occasions has sought adjournments. It appears that probably because the witnesses were not present before the court, he had sought the adjournments. Since these caps, number of cases are disposed of for want of prosecution witness, this Court thinks that time has come wherein the State government will have to evolve some effective machinery in order to have control over the prosecuting agency, that is to say, Public Prosecutors, Investigating Agency with a view to see that justice is not played foul on the sole ground that after filing the complaint, the aforesaid two constituents of the administration of justice do not cooperate in keeping witnesses present before the Court. In fact having invoked the jurisdiction of the Court and thereby making the Court to take cognizance of the offence, thereafter if the prosecution become insincere and make no efforts to examine the witnesses, then in that event the prosecution can be held guilty for falsely invoking the jurisdiction and thereafter irresponsibly letting it down. ( 10 ) IN the light of aforesaid discussion, there is no alternative left with this Court but to remand the cases to the trial Court. The learned Magistrate while conducting the trial is directed to keep in mind the aforesaid observations. ( 11 ) IN the result, all these appeals are allowed. ( 10 ) IN the light of aforesaid discussion, there is no alternative left with this Court but to remand the cases to the trial Court. The learned Magistrate while conducting the trial is directed to keep in mind the aforesaid observations. ( 11 ) IN the result, all these appeals are allowed. The impugned judgment and order passed by the trial court is quashed and set aside. The matters are remanded to the trial court to be disposed of on merits according to law. Since the matters are of the year 1985, the learned Magistrate is directed to give top most priority. Mr. K. P. Raval, the learned APP is directed to inform the learned PP of the trial court regarding the order of this court asking him to appear before the learned Magistrate on 30-4-1993 to take due date for further trial. Office registry is directed to forward a copy of this judgment to (i) the Secretary, Legal Department, and (ii) The Secretary, Home Department - both of Gandhinagar. .