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2017 DIGILAW 1911 (GUJ)

Jagdish Tulsidas Katiya v. State of Gujarat

2017-12-08

J.B.PARDIWALA

body2017
JUDGMENT : J.B. Pardiwala, J. 1. By this application, the applicant-original complainant and the respondent No. 2 in the main matter, has prayed for the following reliefs; "(A) That the application may be kindly admitted and allowed; (B) The order passed by the learned Additional Civil Judge and JMFC, Godhra in Cri. Case No. 1386/2015 dated 26.09.2016 may kindly be quashed and set aside. (C) The Hon'ble Court may kindly be pleased to direct the learned JMFC, Godhra to restore the case proceedings bearing Cri. Case No. 1386/2015 to its original situation, which prevailed as on 25.09.2016 (i.e. before dismissing the complaint on 26.09.2016) (D) Such other and further orders as this Hon'ble Court may deem just, fit and proper be passed by this Hon'ble Court." 2. The main matter has been filed by the opponents Nos. 2, 3 and 4 herein with the following prayers; "(A) This Hon'ble Court may be pleased to issue writ of certiorari any other it order or direction to quash and set aside the order dated 23.04.2015 and 24.07.2015 in Criminal Case No. 1386 of 2015, arising out of Criminal Inquiry No. 60 of 2015 filed before 4th Ad-hoc Additional Civil Judge and Judicial Magistrate First Class, Godhra. (B) This Hon'ble Court may be pleased to issue writ of certiorari any other writ order or direction to quash and set aside the Criminal case No. 1386 of 2015, arising out of criminal inquiry No. 60 of 2015 filed before Additional Civil Judge and Judicial Magistrate, First Class, Godhra. (C) Pending hearing and final disposal of this petition be pleased to stay the further proceedings of Criminal Case No. 1386 of 2015, arising out of criminal inquiry No. 60 of 2015 pending before Additional Civil Judge and Judicial Magistrate First Class, Godhra. (D) To grant such other and further relief as may deem fit, necessary and proper." 3. In the main matter, on 05.01.2016, the following order was passed; "Let notice be issued to the respondents, returnable on 16.3.2016. Mr. Shah, the learned APP, waives service of notice for and behalf of the respondent No. 1. Let there be an ad-interim order in terms of para-5(C). Direct service is permitted qua the respondent No. 2." 4. Thus, by virtue of the order passed by this Court dated 05.01.2016, the further proceedings of the Criminal Case No. 1386 of 2015 came to be stayed. 5. Let there be an ad-interim order in terms of para-5(C). Direct service is permitted qua the respondent No. 2." 4. Thus, by virtue of the order passed by this Court dated 05.01.2016, the further proceedings of the Criminal Case No. 1386 of 2015 came to be stayed. 5. While the main matter is pending before this Court, the Addl. Civil Judge & J.M.F.C., Godhra dismissed the complaint filed by the applicant herein, which culminated in the Criminal Case No. 1386 of 2015, for non-prosecution. With the dismissal of the complaint for non-prosecution, the accused persons stood discharged. Being dissatisfied with the order passed by the court concerned, dismissing the complaint for non-prosecution, the applicant has come up with this application. 6. On 21.11.2017, the following order was passed; "1. By this application, the applicant has prayed for the following reliefs; (A) That the application may be kindly admitted and allowed; (B) The order passed by the learned Additional Civil Judge and JMFC, Godhra in Cri. Case No. 1386/2015 dated 26.09.2016 may kindly be quashed and set aside. (C) The Hon'ble Court may kindly be pleased to direct the learned JMFC, Godhra to restore the case proceedings bearing Cri. Case No. 1386/2015 to its original situation, which prevailed as on 25.09.2016 (i.e., before dismissing the complaint on 26.09.2016). (D) Such other and further orders as this Hon'ble Court may deem just, fit and proper be passed by this Hon'ble Court. 2. The Chief Judicial Magistrate, Godhra passed an order dated 26th September, 2016 discharging the accused persons substantially on the ground that the complainant failed to remain present before the court on the date of the hearing fixed. The order reads as under; Order below Exh. 1 Perused the papers along with the report forwarded by the police in pursuance of the order of police inquiry. From the record of the case and the police inquiry report, it transpires that a prima facie case is made out against the present accused person for dishonestly ordering the purchase of the faulty and disfunctional machinery. Therefore in the light of above facts and circumstances, I pass the following order; Order The present case be registered as a Criminal Case. The process be issued against the accused person on production of the copies of the complaint and on payment of necessary P.F. The complainant is hereby directed to produce this. Therefore in the light of above facts and circumstances, I pass the following order; Order The present case be registered as a Criminal Case. The process be issued against the accused person on production of the copies of the complaint and on payment of necessary P.F. The complainant is hereby directed to produce this. The case is called out. Neither the complainant nor his Ld. advocate are present before the Court. The present matter is at the stage of issuing of process, however, the present complainant has continuously furnished adjournment applications without actually proceeding with the case. On the last occasion, the advocate of the complainant was strictly intimated that last opportunity is being given to proceed with the case, but despite that, the complainant has chosen to remain absent along with his ld. Advocate. In the present facts and circumstances, the present case is serving no interest just by keeping the case pending indefinitely. Therefore the present matter is hereby dismissed for want of prosecution. The accused stands discharged. 3. Mr. Panchal, the learned counsel appearing for the applicant pointed out that his client did not remain present before the Trial Court as this Court has stayed the further proceedings of the Criminal Case No. 1386 of 2015. Mr. Panchal invited my attention to the order passed by this Court dated 06.01.2016 in the Special Criminal Application No. 7677 of 2015, which reads as under; Let notice be issued to the respondents, returnable on 16.3.2016. Mr. Shah, the learned APP, waives service of notice for and behalf of the respondent No. 1. Let there be an ad-interim order in terms of para-5(C). Direct service is permitted qua the respondent No. 2. 4. In the impugned order, the Chief Judicial Magistrate has stated that the present matter is at the stage of issuance of process. The record reveals that the process came to be issued long time back as evident from the order on record. The criminal case is for the offence punishable under section 420 read with section 114 of the Indian Penal Code. Essentially, it is a warrant triable case. This Court would like to know from the Chief Judicial Magistrate, Godhra as regards provision of law he has applied for the purpose of discharging the accused in a warrant triable case instituted otherwise on a police report on the ground of absence of the complainant. Essentially, it is a warrant triable case. This Court would like to know from the Chief Judicial Magistrate, Godhra as regards provision of law he has applied for the purpose of discharging the accused in a warrant triable case instituted otherwise on a police report on the ground of absence of the complainant. The Registry is directed to call for the report of the Chief Judicial Magistrate, Godhra in this regard at the earliest so as to reach this Court by 29th November, 2017. I could have passed an appropriate order today itself restoring the complaint. However, I would like to know from the Judicial Officer as to on what basis, he has passed the impugned order. 5. Post the matter on 08.12.2017. 6. On the returnable date, notify the matter on top of the board along with the report of the Chief Judicial Magistrate, Godhra." 7. The Addl. Civil Judge & JMFC, Godhra has failed to forward his report pursuant to the order passed by this Court dated 21.11.2017. 8. Mr. Panchal, the learned counsel appearing for the applicant submitted that the case before the Magistrate was a warrant triable one. According to Mr. Panchal, the Magistrate appears to have exercised powers under section 249 of the Cr.P.C. for discharging the accused persons in the absence of the complainant. However, according to Mr. Panchal, section 249 of the Cr.P.C. has no application because although section 420 of the IPC is compoundable yet it is a cognizable offence. According to Mr. Panchal, the provision of section 249 Cr.P.C. would apply provided both the conditions are fulfilled, i.e., the offence should be lawfully compounded and not a cognizable offence. 9. Mr. Panchal further submitted that the Trial Court was aware of the fact that this Court has stayed the proceedings and, in such circumstances, there was no reason for the Trial Court to insist the presence of the complainant. In such circumstances, according to Mr. Panchal, on both the counts, the order, dismissing the complaint and discharging the accused, deserves to be quashed. 10. Mr. I.H. Syed, the learned counsel appearing with Mr. Vishal Seval, the learned counsel for the respondents Nos. 2 to 4 submitted that this Court, in the main matter, has passed an interim order staying the further proceedings of the criminal case. 10. Mr. I.H. Syed, the learned counsel appearing with Mr. Vishal Seval, the learned counsel for the respondents Nos. 2 to 4 submitted that this Court, in the main matter, has passed an interim order staying the further proceedings of the criminal case. According to the learned counsel, probably, this fact was not brought to the notice of the court concerned and under a misconception of fact, the order impugned might have been passed. Mr. Syed very fairly submitted that the criminal proceedings be restored. 11. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the Magistrate committed any error in passing the impugned order. 12. The impugned order reads as under; Order below Exh. 1 Perused the papers along with the report forwarded by the police in pursuance of the order of police inquiry. From the record of the case and the police inquiry report, it transpires that a prima facie case is made out against the present accused person for dishonestly ordering the purchase of the faulty and dis-functional machinery. Therefore in the light of above facts and circumstances, I pass the following order; Order The present case be registered as a Criminal Case. The process be issued against the accused person on production of the copies of the complaint and on payment of necessary P.F. The complainant is hereby directed to produce this. The case is called out. Neither the complainant nor his Ld. advocate are present before the Court. The present matter is at the stage of issuing of process, however, the present complainant has continuously furnished adjournment applications without actually proceeding with the case. On the last occasion, the advocate of the complainant was strictly intimated that last opportunity is being given to proceed with the case, but despite that, the complainant has chosen to remain absent along with his ld. Advocate. In the present facts and circumstances, the present case is serving no interest just by keeping the case pending indefinitely. Therefore the present matter is hereby dismissed for want of prosecution. The accused stands discharged." 13. Advocate. In the present facts and circumstances, the present case is serving no interest just by keeping the case pending indefinitely. Therefore the present matter is hereby dismissed for want of prosecution. The accused stands discharged." 13. Section 249 of the Cr.P.C. reads as under; "When the proceedings have been instituted upon complaint, and on any day fixed for the hearing of the case the complainant is absent, and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused." 14. The analysis of section 249 Cr.P.C. disclose that in order to invoke the power reserved under that provision, the following ingredients should be fulfilled; (i) The proceeding must have been instituted upon complaint. (ii) the case is fixed for hearing. (iii) The offence charged is lawfully compoundable, and (iv) the offence is not cognizable offence. 15. Upon satisfaction of the aforesaid ingredients, only an accused can be discharged in a warrant triable case by invoking the power under section 249 Cr.P.C. There is no express provision in the Code for dismissing a complaint for default but in such a situation, upon fulfilling the necessary condition, an accused can be discharged. 16. A plain reading of the above provision clearly indicates that a Magistrate has the power to discharge an accused of an offence which is either compoundable or is a non-cognizable one. The clauses "and the offence may be lawfully compounded" and "is not a cognizable offence" are separated by a disjunctive conjunction 'or' which indicates that they are alternative and not cumulative. Thus, the section applies not only to cases where the offence is a compoundable one but also where though it is not compoundable, it is non-cognizable. The power under the section can be exercised in respect of all compoundable offences, whether, cognizable or not, and all non-cognizable offences, whether compoundable or not. 17. Section 249 of the new Code corresponds to Section 259 of the old Code. Section 259 was amended by the Amending Act of 1923 and the words 'or is not a cognizable offence were added after the words 'may be lawfully compounded'. Prior to the amendment, the power was exercisable in cases dealing with offences that could be lawfully compounded. Section 249 of the new Code corresponds to Section 259 of the old Code. Section 259 was amended by the Amending Act of 1923 and the words 'or is not a cognizable offence were added after the words 'may be lawfully compounded'. Prior to the amendment, the power was exercisable in cases dealing with offences that could be lawfully compounded. The intention behind the amendment was to enlarge the scope of Section 249 by making it applicable also to all non-cognizable offences. If the intention of the legislature had been that the powers conferred by the section should be exercised in respect of an offence which is both compoundable and non-cognizable, it would have used the conjunction 'and' or 'but' instead of the disjunctive conjunction 'or' between the clauses 'and the offence may be lawfully compounded' and 'is not a cognizable offence'. The scope of the section would be curtailed instead of being enlarged if it is held that the power conferred by the section is exercisable when an offence is both compoundable and a non-cognizable one. 18. In the case of E.P. Kurian vs. N. Kuttappan Nair, reported in 1986 (2) KLJ 233, the learned Single Judge of the Kerala High Court held as under; "Such an interpretation will lead to the conclusion that for the applicability of S. 249 a single offence or all the offences must be both compoundable and non cognizable and where there is at least one offence which is either not compoundable or cognizable a discharge under S. 249 cannot be had. S. 249 is not capable of such an interpretation and I do not think that 1967 KLT 800 has laid down such a proposition. What the section says is "the offence may be lawfully compounded or is not a cognizable offence" and not "the offence may be lawfully compounded and is not a cognizable offence." The wording of the section is so clear that the existence of either of the conditions is sufficient for its applicability even though the other condition is absent. In the case in hand though the offence under S. 447 is cognizable it is compoundable by the person in possession of the property. So also the offence under s. 506(ii) is non cognizable though it is not compoundable. Mr. In the case in hand though the offence under S. 447 is cognizable it is compoundable by the person in possession of the property. So also the offence under s. 506(ii) is non cognizable though it is not compoundable. Mr. S. Eswara Iyer said that since S. 447 is compoundable and 506(ii) is non cognizable the specification of S. 249 is satisfied even though S. 447 is cognizable and S. 506(ii) not compoundable. I think his contention is correct." 19. Let me clarify that the applicability of section 249 Cr.P.C. is excluded only in cases where, at least, any one of the offences is both cognizable and non-compoundable. Section 256 Cr.P.C. applies to all the offences triable as summons cases on complaint while section 249 Cr.P.C. applies to the complaints for the offences triable as warrant cases as are either compoundable or non-cognizable. 20. One another important aspect, which the Sub-ordinate Courts should keep in mind is that in a warrant case, after the charge is framed, the complainant will be out of picture and the court would be duty bound and obliged in law to secure such of the witnesses for the prosecution as are required by the accused for further cross-examination. Under such circumstances, no duty is cast upon the complainant to secure the witnesses for the prosecution unless he had undertaken to produce them. The proper procedure to be adopted by a Magistrate under such circumstance is to make an effort to secure the attendance of the witnesses, if so required by issue of coercive process. It is illegal to acquit the accused on account of the absence of the complainant as that procedure, in such cases, is not contemplated under section 249 of the Cr.P.C. or on account of the absence of the prosecution witnesses without taking adequate steps to secure their attendance. 21. Thus, in such circumstances, referred to above, the first contention of Mr. Panchal should fail. However, the second contention of Mr. Panchal deserves consideration. It is apparent from the materials on record that the proceedings of the Criminal Case No. 1386 of 2015 have been stayed by this Court vide order dated 05.01.2016 passed in the main matter referred to above. Perhaps, this order was not brought to the notice of the court concerned. However, the second contention of Mr. Panchal deserves consideration. It is apparent from the materials on record that the proceedings of the Criminal Case No. 1386 of 2015 have been stayed by this Court vide order dated 05.01.2016 passed in the main matter referred to above. Perhaps, this order was not brought to the notice of the court concerned. There was no reason, otherwise, for the court concerned to dismiss the complaint for non-prosecution in the absence of the complainant and discharge the accused. If this Court has stayed the proceedings of the lower court, then I see no good reason for the complainant to remain present before the Court. 22. In view of the above, this application succeeds and is hereby allowed. The impugned order passed by the Addl. Civil Judge & J.M.F.C., Godhra in the Criminal Case No. 1386 of 2015 dated 26.09.2016 is quashed and set aside. The proceedings of the Criminal Case No. 1386 of 2015 are restored to its original file. The criminal case shall proceed further in accordance with the order that this Court may pass in the main matter.