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Rajasthan High Court · body

1997 DIGILAW 1342 (RAJ)

Mohd. Harun v. Khalil Mohd.

1997-11-13

AMRESH KUMAR SINGH

body1997
Honble SINGH, J.–Heard the learned counsel for the petitioner and the lear- ned counsel for non-petitioners No. 1-6. (2). This petition under Section 482 Cr.P.C. is directed against the order dated 8.8.1996 passed by the learned Additional Chief Judicial Magistrate No. 2, Udaipur in criminal case No. 77/93 whereby the non-petitioners No. 1-6 who were accused persons in the aforesaid criminal case were discharged in respect of offences under Sections 448 and 341 I.P.C. in pursuance of the directions given by the Hon- ble Supreme Court in ``Common Cause, A Registered Society Though its Director vs. union of India & Ors. (1) The learned Additional Chief Judicial Magistrate in his order observed that the accused were facing charges under Sections 448 and 341 I.P.C. The offence under Section 448 I.P.C. is punishable with imprisonment upto one year and the offence under Section 341 I.P.C. is punishable with imprisonment up to one month and the offence under Section 341 IPC is punishable with imprisonment up to one month and that the case was pending since 29.6.1993 and that trial had not been commenced and, therefore, in view of the directions given by the Honble Supreme Court in Judgment dated 1.5.1996 in writ petition (Civil) No. 1128/86, the accused were discharged and the proceedings initiated against them were stopped. The learned counsel for the petitioner has submitted that the impugned order passed by the learned Additional Chief Judicial Magistrate deserves to be set aside because it is not covered by the Judgment dated 1.5.1996 of the Honble Supreme Court in ``Common Cause A Registered Society vs. Union of India & Ors (supra). The main argument of the learned counsel for the petitioner is that in view of the law laid down by a Single Bench of this Court in Suresh Chandra & Anr. vs. State of Rajasthan (2). ``The accused persons cannot be discharged of the offences merely because the trial had not been commenced for a certain period and that it was further necessary that the learned Additional Chief Judicial Magistrate apply his mind and after hearing both the parties whether the responsibility of delay for the commencement of trial was or was not partly or wholly on account of any conduct of the accused. (3). In Suresh Chandra & Anr. (3). In Suresh Chandra & Anr. vs. State (supra) the learned Single Judge of this Court further observed: ``After referring to directions contained in Para No. 2(b) of the judgment dated 1.5.1996 passed by the Honble Apex Court. A bare reading of the above said directions makes it clear that the Court has to heard the public prosecutor and other parties before it or their advocates before any order of discharge or acquittal of the accused and closure of the case is passed. If the contention of the learned counsel for the petitioners is accepted, it would mean that if in a criminal case challan is filed against an accused with the allegations that he had committed offences compoundable with the permission of the Court and the accused, who is on bail, appears before the Court and is supp- lied the copies of police report and other documents mentioned in Section 207 of the Code and the case is adjourned for hearing the arguments before the framing of charges and, on such adjourned date, the accused does not appear but absconds and is not traceable for a period of more than two years, the Court will have no option but to close the case and discharge/acquit the accused. If such an interpretation is accepted it would amount to absurd result and it would not be possible to proceed with the criminal trials and no such intention can be imputed to the Apex Court while giving the directions in question and, in my view, the only interpretation is that the Court must hear the parties and it is only when it is satisfied that the commencement of the trial has unnecessarily been delayed, for no fault of the accused, resulting into his oppression, that the order of closing the case and discharging/acquitting the accused can be passed. (4). The above observation clearly lay down the law that the directions given by the Honble Apex Court in Judgment dated 1.5.1996 in Common Cause a registered Society vs. Union of India (supra) were applicable to those cases only in which the delay in commencement of the trial was not caused by any act or omission on the part of the accused person. In other words the learned Single Judge held that the right of the accused persons to be discharged or acquitted in pursuance of the direction given by the Honble Apex Court was subject to the condition that he was not responsible for delay in commencement of the trial. My attention has not been drawn to any case in which above view has been reversed or dissented from. I, therefore, have no alternative but to give such legal importance as is due to the view taken by the learned Single Judge. (5). In the judgment dated 1.5.1996, Para No. 2(b) the direction was given by the Honble Supreme Court that ``the criminal court shall, after hearing the public prosecutor and other parties represented before it or their advocates. This direction clearly indicates that both the parties were given the opportunity of being heard before the order of acquittal was to be passed. If the intention behind the direction contained in Para No. 2(b) were to make the direction applicable to every case and acquit every accused in case the trial was not commenced for the period mentioned, in the relevant para there would have been no necessity of hearing the public prosecutor and the parties. I am, therefore, of the opinion that the view taken by the learned Single Judge in the case of Suresh Chandra vs. State of Rajasthan (supra) was quite reasonable and I fully concur with the same. I have another reason to arrive at the same view. Right to speedy justice is regarded as a part and parcel of the fundamental right under Article 21 of the Constitution. Right to acquittal or discharge on the ground that this fundamental right is contravened can be established only if it is shown that the accused person was always willing to offer cooperation to the Court in dispensing justice at an early date and that he was, in any case, not desirous to prolong the litigation initiated against him. Right to acquittal or discharge on the ground that this fundamental right is contravened can be established only if it is shown that the accused person was always willing to offer cooperation to the Court in dispensing justice at an early date and that he was, in any case, not desirous to prolong the litigation initiated against him. In cases where an accused person himself causes delay in the conduct of the case it cannot be said that he is desirous to enforce his right to speedy justice under Article 21 of the Constitution and if the accused person is not shown to be desirous to enforce his right to speedy justice under Article 21 of the Constitution no question of contravening his right under Article 21 of the Constitution can arise. I am, therefore, in respectful agreement with the view taken by Honble Justice N.C. Kochar in Suresh Chandra vs. State of Rajasthan (supra). (6). In view of above reasons it was necessary for the learned Additional Chief Judicial Magistrate No. 2, Udaipur to apply his mind to all the facts and circumstances of the case and ascertain whether the accused was or was not responsible for delay in commencement of trial. Since he did not apply his mind in this behalf nor he appears to have given an opportunity of being heard to both the parties, the order passed by him deserves to be interfered under Section 482 Cr.P.C. The order-sheet dated 8.8.1996 at best shows that complainant Mohd. Harun and his counsel and the counsel for the accused persons were present. The order-sheet does not show that they were heard or their arguments were judicially considered. (7). For reasons mentioned above the impugned order dated 8.8.1996 passed by the learned Additional Chief Judicial Magistrate No. 2, Udaipur cannot be maintained. (8). I have perused the later judgment dated 28.11.1996 of the Honble Supreme Court in ``Common Cause A registered Society through its Director vs. Union of India (3). By this judgment certain points were clarified. (7). For reasons mentioned above the impugned order dated 8.8.1996 passed by the learned Additional Chief Judicial Magistrate No. 2, Udaipur cannot be maintained. (8). I have perused the later judgment dated 28.11.1996 of the Honble Supreme Court in ``Common Cause A registered Society through its Director vs. Union of India (3). By this judgment certain points were clarified. At page 134 of the Report it is pointed out by the Honble Apex Court that ``the trials regarding other offences which are covered by the time limit, specified in our earlier order dated 1.5.1996 wherein the concerned accused are already acquitted or discharged pursuant to the said order, such acquitted or discharged accused shall not be liable to be recalled for facing such trials pursuance to the present clarificatory order which qua such offences will be treated to be purely prospective and no such cases which are already closed shall be reopened pursuant to the present order. (9). This direction is not applicable to the present case because as mentioned above, I have come to the conclusion that in view of the judgment delivered by the learned Single Judge of this Court, the directions contained in Para No. 2(b) of the judgment dated 1.5.1996 were to be applied after giving an opportunity of hearing of both the parties and taking into consideration the facts whether the accused was or was not partly or wholly causing delay. In other words this petition is being allowed not in view of the clarifications made in the judgment dated 28.11.1996 but on the footing that the impugned order was not in accordance with the direction given by the Honble Supreme Court in the judgment dated 1.5.1996. (10). For reasons mentioned above this petition succeeds. The impugned or- der dated 8.8.1996 passed by the learned Additional Chief Judicial Magistrate No. 2, Udaipur in criminal case No. 77/93 is hereby quashed and set aside and the case is remanded to him with a direction that after hearing both the parties he will pass orders in view of the judgments of the Honble Supreme Court. A copy of this order be sent to the learned Additional Chief Judicial Magistrate No. 2, Udaipur for infor- mation and necessary action. The parties are directed to appear before the learned Additional Chief Judicial Magistrate on 19.12.1997.