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1999 DIGILAW 246 (HP)

STATE OF H. P. v. OM DUTT

1999-11-17

M.R.VERMA

body1999
JUDGMENT M. R. Verma, J. (Oral):- This revision petition is directed against the order dated 5.12.1996 passed by the learned Additional Chief Judicial Magistrate, Dehra, whereby he has acquitted, the respondents- accused (here-in-after referred to as the accused) in a case under Sections 451, 323/34IPC, in view of direction No. 2(f) given in case Common Cause v. Union of India, 1996 Cri. L.J.2380. 2. The facts relevant for the present case are as follows: 3. The officer Incharge, Police Station, Jawalamukhi had submitted a charge-sheet against the accused persons under Sections 451 /321/.14 IPC. The accused were ordered to be summoned by the learned trial Magistrate vide order dated 11.3.1993. On 5 12.1996, the case was listed for consideration of charge. It was on this date of hearing that after hearing the parties, the learned trial Magistrate passed the impugned order, 4. Feeling aggrieved, the State has preferred the present revision petition. 5. I have heard the foamed Additional Advocate Genera for the petitioner and the Seamed Counsel for the accused and have also gone through the records. 6. The directions, on the basis of which the impugned order has been passed by the learned trial Magistrate has been issued by the Honble Supreme Court in case Common Cause v. Union of India and others, 1996 Cri. L.J. 2380 and reads as follows:- "2(f): Where the cases pending in Criminal Courts under IPC or any other law for the time being in force are punishable with imprisonment upto three years, with or without fine, and if such pendency is for more than two years and if in such cases trial have still not commenced, the Criminal Court shall discharge or acquit the accused, as the case may be, and close such cases." 7. It has been clarified as to how the period of pendency in criminal cases has to be calculated for the purpose of implementation of the directions contained in the aforesaid judgment vide para 3 as follows : "For the purpose of directions contained in clauses (1) and (2) above, the period of pendency of criminal cases shall be calculated from the date the accused are summoned to appear in the Court. 8. The judgment supra was modified by the Honble Supreme Court in case Common Cause v. Union of India and others, 1997 Cri. L.J.195. 8. The judgment supra was modified by the Honble Supreme Court in case Common Cause v. Union of India and others, 1997 Cri. L.J.195. In the said judgment, the phrase "pendency of trials" as employed inter- alia in direction 2(f) supra has been defined as follows: "In cases of trials of summons cases by Magistrates the trials would be considered to have commenced when the accused who appear or are brought before the Magistrate are asked under Section 251 whether they plead guilty on have any defence to make." 9. It has also been held that the accused are not entitled to earn any discharge or acquittal as per instructions 2(a) to 2(f) of the judgment reported in 1996 Cri. L.J. 2380 if it is demonstrated that the accused concerned seek to take advantage of their own wrong or any other action of their own resulting in protraction of trials against them. The Honble Supreme Court in 1997 Cri. L.J. 195 (supra) further held as follows: "It is however made clear that in trials regarding other offences which are covered by the time limit specified in our earlier order dated 1st May, 1996 wherein the concerned accused are already acquitted or discharged pursuant to the said order, such acquittal or discharge shall not be liable to be recalled for facing such trials pursuant to the present clarifictory 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." It is in view of the above law, as laid down by the Honble Supreme Court that the present revision petition is required to be considered. 10. It may be pointed out at the very outset that on the basis of the charge sheet submitted by the police against the accused persons, accusations had not been put/charge has not been framed against the accused. Therefore, the order of acquittal could, in no case, be passed by the learned trial Magistrate and even if the case was covered under the directions of the Honble Supreme Court, only an order of discharge could have been passed. Thus, for all intents and purposes, the impugned order has to be treated as an order of discharge. 11. Therefore, the order of acquittal could, in no case, be passed by the learned trial Magistrate and even if the case was covered under the directions of the Honble Supreme Court, only an order of discharge could have been passed. Thus, for all intents and purposes, the impugned order has to be treated as an order of discharge. 11. Mow coming to the merits of the case, it may be observed that the summons to the accused were ordered to be issued by the learned trial Magistrate vide his order dated 11.3.1993 and no substantial proceedings took place in the case till 5.12.1996 when the impugned order was passed. In view of the law as laid down by the Honble Supreme Court and which has already been set out hereinabove, it has, therefore, to be examined as to whether the case remained pending during the aforesaid period on account of any lapse on the part of the prosecution or on account of the acts and conduct of the accused persons. The accused, for the first time, put in appearance before the Court on 15.12.1993 In between, on the day for which the accused were summoned i.e. 14.7.1993, the presiding officer was not present. After securing the appearance of the accused on 15.12.1993, the case was ordered to be listed on 16.5.1994 for consideration of charge when the accused were not press and applied for exemption. After availing such exemption, accused put in appearance on 6.7.994 and the case was listed for consideration of charge on 24.10.1994. On this date, neither the accused nor their counsel put in appearance, therefore, their bail bonds were forfeited and non-bailable warrants were ordered to be issued against them. Proceedings under Section 446 Cr. P.C. were also initiated. The presence of the accused thereafter could be procured on 31.5.1995. The case was then listed for consideration of charge on 29.9.1995. On this date, accused Shashi Pal absented and bailable warrants were ordered to be issued to secure his presence. The matter then came up for effective hearing before the Court after procuring the presence of Shashi Pal on 10.4.1996, when the matter was ordered to be fisted for consideration of charge on 6.7.1996, On this day, the presiding officer of the Court was on leave. The matter then came up for effective hearing before the Court after procuring the presence of Shashi Pal on 10.4.1996, when the matter was ordered to be fisted for consideration of charge on 6.7.1996, On this day, the presiding officer of the Court was on leave. File came up before the court on 9.9.1996 for passing appropriate orders and was, thus, listed for consideration of charge on 5.12.1996 when the impugned order came to be passed. The pendency of the case during the aforesaid period, therefore it largely attributable to the conduct of the accused often absenting and once applying for exemption. Thus, during the period of pendency from 11.3.1993 I to 5.12.1996, no effective proceedings in the matter could be taken, mainly because of the absence of the accused and, to a minor extent, because of the absence of the presiding officer. The delay in the disposal of the case which has been caused due to the wrong of the accused persons themselves, therefore, could not be taken into account for closing - the case against them. Otherwise, it will amount to giving the accused the benefit of their own wrongs. While passing the impugned order, the learned trial Magistrate has not taken note of the clarificatory judgment of the Honble Supreme Court (1997 Cri. L.J. 195) and thus, has acted illegally. Therefore, the impugned order cannot be sustained. 12. The learned Counsel for the accused has submitted that the impugned order, though, may not be sustained in law but it has been passed way back on 5.12.1996 and a period of almost three years has elapsed and the offences alleged to have been committed by the accused are of trivial nature therefore, it may not be appropriate to remand the case for trial. 13. As has already been observed hereinabove, that the main reason for the pendency of the case before the trial Magistrate was repeated absence of the accused at the trial. Even their surety bonds had to be cancelled, non-bailable warrants had to be issued and proceedings under Section 446 Cr. P.C. had to be initiated against them. Therefore, their case is more akin to that of an absconders who cannot be permitted to say that irrespective of non-appearance to face the trial, if the case has been pending for some considerable time, they should not be ordered to be tried. P.C. had to be initiated against them. Therefore, their case is more akin to that of an absconders who cannot be permitted to say that irrespective of non-appearance to face the trial, if the case has been pending for some considerable time, they should not be ordered to be tried. The contention raised by the learned Counsel for the accused, therefore, cannot be sustained. 14. As a result, the present revision petition is allowed and the impugned order is quashed. The case is remanded to the learned trial Magistrate for trial from the stage where it steed immediately before passing the impugned order, with the further direction that the case be take up for hearing on priority basis and it be ensured that it is disposed of within six months of the date on which the accused put in appearance in his Court. Parties are directed to appear before the learned trial Magistrate on 30.12.1999. Longer date on the request for the accused. Records of the trial Court be returned forthwith. Petition dismissed.