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2014 DIGILAW 26 (BOM)

Govindrao v. State of Maharashtra

2014-01-08

ABHAY M.THIPSAY

body2014
JUDGMENT 1. Heard Mr. S.W. Munde, the learned Counsel for the appellant. Heard Mr. S.B. Pulkundwar, the learned Additional Public Prosecutor, for the respondent no.1. Heard Mr. C.V. Thombre, the learned Counsel for the respondent nos.2 and 3. Heard Mr. P.V. Balkhande, the learned Counsel for the respondent nos.4 and 5. 2. Admitted and taken up for final hearing forthwith, by consent. Calling for the record and proceedings dispensed with, by consent. 3. The appellant is the original complainant in Summary Criminal Case No. 588/2007, before the Judicial Magistrate (First Class), Gangakhed. The respondent nos.2, 3, 4 and 5 are the original accused. The said case was in respect of the offence punishable under Section 500 of the Indian Penal Code. Due to the persistent absence of the appellant before the trial court, the Magistrate by an order dated 30-4-2013, acquitted the accused, as contemplated under Section 256 of the Code of Criminal Procedure, 1973 [For short, "the Code"]. Being aggrieved thereby, the appellant has filed the present appeal challenging the said order. 4. A perusal of the impugned order shows that, in the trial court, the appellant had been remaining absent continuously. His Counsel also used to remain absent on the dates of hearing. The learned Magistrate observed that the complainant 'had not taken steps for securing presence of the accused persons'. The Magistrate recorded that it appeared to him that the complainant (appellant) had no interest in proceeding further with the case. After making these observations, the learned Magistrate passed an order of acquittal under the provisions of Section 256 of the Code. 5. The learned Counsel for the respondent nos.4 and 5 has produced a certified copy of the Roznama of the trial court, in order to show that the appellant was persistently remaining absent. This appears to be correct and, therefore, that observation in the order of acquittal passed by the Magistrate cannot be faulted. 6. It, however, appears that even the accused persons were not remaining present before the trial court. It appears that, bailable warrants were ordered to be issued to procure the presence of the accused persons i.e. respondent nos.2, 3, 4 and 5, herein, but the warrants were actually not issued. It is clear from the Roznama dated 4-9-2012 that, the bailable warrants were not even prepared. It appears that, bailable warrants were ordered to be issued to procure the presence of the accused persons i.e. respondent nos.2, 3, 4 and 5, herein, but the warrants were actually not issued. It is clear from the Roznama dated 4-9-2012 that, the bailable warrants were not even prepared. The Roznama dated 27-7-2012, however, shows that, report in respect of the bailable warrants was not received, and therefore, it can be presumed that in the meantime, bailable warrants were issued. It, however, is clear that the bailable warrants were not executed at all. Once bailable warrants to procure the presence of the accused persons were issued, there was no question of 'taking any steps' by the complainant. In fact, it was the duty of the Magistrate to see that the Police execute the bailable warrants and comply with the orders of the court. That, the Police machinery failed to execute the bailable warrants, cannot be adversely taken against the complainant, as the complainant is not expected to run behind the Police and persuade them to execute the bailable warrants, which is actually a requirement of the court itself. 7. It is true that, the absence of the complainant before the trial court was not justified and the complainant ought to have remained present before the court. However, in the peculiar facts that, the presence of the accused persons was not being procured, I am inclined to grant one opportunity to the appellant to prosecute his complaint on merits, and in accordance with law. It is submitted before me that, the appellant shall be diligent in prosecuting the complainant if the appeal is allowed, and the matter is remanded back to the trial court for proceeding further with the complaint. 8. In the circumstances, while allowing the appeal, appropriate costs should be imposed on the appellant. 9. In the result, the appeal is allowed. (a) The impugned order dated 30-4-2013 is set aside, subject to payment of costs of Rs. 2,000/- [Rupees two thousand], to be paid by the appellant (original complainant) to each of the respondent nos.2, 3, 4 and 5 herein (original accused), by depositing the same in the court of the learned Magistrate, on or before 4th February 2014. Needless to say that, on deposit of costs, the respondent nos.2, 3, 4 and 5 shall be at liberty to withdraw the same. Needless to say that, on deposit of costs, the respondent nos.2, 3, 4 and 5 shall be at liberty to withdraw the same. (b) The Summary Criminal Case No. 588/2007 is restored to the file of the Magistrate. The learned Magistrate shall proceed further with the case in accordance with law. (c) The parties shall remain present before the Magistrate on 4th February 2014. (d) It is made clear that, the payment of costs, as aforesaid, shall be the condition precedent for proceeding further with the case before the trial court. If costs are not deposited within the stipulated period, the impugned order of the trial court shall stand automatically revived. 10. The Appeal is disposed of in the aforesaid terms.