Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 1295 (RAJ)

Jagdish Prasad Sharma v. State of Rajasthan

2018-05-16

KANWALJIT SINGH AHLUWALIA

body2018
JUDGMENT : KANWALJIT SINGH AHLUWALIA, J. Instant petition has been preferred u/Sec. 482 Cr.P.C. to assail the order dated 5.10.2016 passed by the Court of Metropolitan Magistrate, No. 22, Jaipur Metropolitan, Jaipur, whereby the said Court inspite of the order dated 15.7.2016 afforded opportunity to the complainant to lead pre-charge evidence, it is prayed that the order dated 5.10.2016 be set aside along with the order dated 16.12.2016 passed by the Court of Additional Sessions Judge, No. 8, Jaipur Metropolitan, Jaipur, whereby the said Court, in revision affirmed the order dated 5.10.2016 passed by the trial Court. 2. Succinctly stated, the complainant/respondent No. 2 namely Santosh Kumar Jaiman had instituted a Criminal Complaint bearing No. 160/2011; titled as Santosh v. Jagdish, for prosecution of the petitioner/accused and his wife for offences punishable under Sections 120-B, 192, 194, 196, 419 and 420 IPC. In the said complaint, preliminary evidence was recorded and the trial Court on 1.2.2014 took cognizance of the aforesaid offences. On 4.6.2016 complainant was given opportunity to produce his pre-charge evidence and inspite of numerous opportunities availed, the complainant had not led evidence. The trial Court fixed date as 15.7.2016, being the last opportunity to lead pre-charge evidence. 3. On the said date i.e. 15.7.2016, the trial Court passed the following order: ^^ÁkFkhZ o vÁkFkhZ ds vf/koDrk mifLFkr A ÁkFkhZ i{k vius leLr nLrkost vkxkeh rkjh[k ij is’k djsa A vkjksi iwoZ lk{; Lor% gh lekIr le>h tkosxh A i=koyh fnukad 22-8-2016 dks is’k gks** 4. It is a case of the petitioner that on 22.8.2016 neither the complainant nor any of the Counsel on his behalf appeared and, therefore, by virtue of Section 249 of the Code of Criminal Procedure, 1973, the petitioner should have been discharged by the trial Court of the criminal offences for which complaint was instituted for prosecution of the petitioner. 5. A further grievance has been made that the trial Court gravely erred to afford another opportunity to the complainant to lead defence evidence, inspite of the order dated 15.7.2016, especially when on 22.8.2016 no evidence of the complainant was available and the evidence of the complainant ought to have been closed. 6. 5. A further grievance has been made that the trial Court gravely erred to afford another opportunity to the complainant to lead defence evidence, inspite of the order dated 15.7.2016, especially when on 22.8.2016 no evidence of the complainant was available and the evidence of the complainant ought to have been closed. 6. It will be apposite to reproduce here the order dated 22.8.2016, whereby the trial Court adjourned the matter to 2.9.2016:— ^^22-8-2016% ifjoknh dh vksj ls dksbZ mi- ugha A vfHk;qDr vuqifLFkr gk-ek- dk ÁkFkZuk i= is’k gqvk tks vkt ds fy, Lohdkj fd;k x;k A i=koyh okLrs mfpr vkns’k fnukad 2-9-2016 dks is’k gks A** 7. Mr. Hans Kumar Sharma the learned counsel appearing for the petitioner/accused, has raised following two arguments : — “A. That because of Section 262 Cr.P.C., after passing of the order dated 15.7.2016, wherein it was held that in case, the complainant failed to produce the evidence, the evidence of the complainant shall be deemed to have been closed, could not be reviewed and on 22.8.2016 the trial Court could not adjourn the matter to another date i.e. on 2.9.2016. B. That by virtue of the order dated 15.7.2016 since pre-charge evidence of the complainant stood closed, the petitioner and his co-accused should have been discharged by the trial Court by taking recourse to Section 249 Cr.P.C.” 8. It may be noted here that the above two submissions were raised before the trial Court by filing an application before the trial Court praying therein that the petitioner be discharged under Section 249 Cr.P.C. 9. The trial Court rejected the application by noting that Counsel for the complainant moved an application stating therein that on 15.7.2016 he noted the date as 27.8.2016, instead of 22.8.2016 and, there fore, on 27.8.2016, he learnt that the case has been adjourned to 2.9.2016. It is urged that the trial Court gravely erred to accept the plea raised by the complainant and wrongly gave another opportunity to the complainant to lead evidence and, thus, had rejected the application seeking discharge of the accused on wholly untenable grounds. 10. Aggrieved against the same, the petitioner had filed a revision. The revisional Court below also dismissed the revision vide order dated 16.12.2016 and affirmed the order passed by the trial Court. 11. I have heard the learned counsel appearing for the petitioner/accused at length. 12. 10. Aggrieved against the same, the petitioner had filed a revision. The revisional Court below also dismissed the revision vide order dated 16.12.2016 and affirmed the order passed by the trial Court. 11. I have heard the learned counsel appearing for the petitioner/accused at length. 12. Counsel appearing for the petitioner/accused has failed to keep in mind the subtle distinction between the summons case and the warrants case. 13. In the present case, the petitioner is being tried along with on the co-accused for offences which are to be tried as warrants case. There is a mark distinction between Section 256 Cr.P.C. and Section 249 Cr.P.C. Section 249 Cr.P.C. reads as under:— Absence of complainant: 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. Thus, Section 249 Cr.P.C. vest discretion in the Court only in the case where offences can be lawfully compounded and are non-cognizable offences. 15. In the present case, the petitioner is being tried for cognizable offence and furthermore, offences for which the petitioner is being tried is non-compoundable also. Offence under Section 120-B IPC is cognizable and non-compoundable. Otherwise also, discharge of the petitioner is not automatic and furthermore, in a case of non-cognizable offence or for offence which is compoundable lawfully in a warrants case, the Magistrate has only discretion to discharge the accused because of absence of the complainant. 16. In case where complainant die during the proceedings initiated as warrants case, what is the effect of Section 249 Cr.P.C. it has been recently considered by the Supreme Court in the case of Chand Devi Daga v. Manju K. Humatani, reported as 2018 (1) WLC (SC) Cri. 76 : 2017 AIR (SC) 5126. 17. While dealing with the procedure of warrants case under Section 249 Cr.P.C., the Supreme Court held as under:— “7. There is no dispute regarding facts and events in the present case. The original complainant died during the pendency of the Criminal Misc. Petition before the High Court which was filed challenging the order of the Sessions Judge rejecting the criminal revision against the order of Magistrate dismissed the complaint. 8. There is no dispute regarding facts and events in the present case. The original complainant died during the pendency of the Criminal Misc. Petition before the High Court which was filed challenging the order of the Sessions Judge rejecting the criminal revision against the order of Magistrate dismissed the complaint. 8. Section 256 of Code of Criminal Procedure, 1973 is contained in Chapter XX with the heading “Trial of summons cases by Magistrates.” Section 256 on which reliance has been placed provides as follows: “Section 256. Non-appearance of death of complainant. (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) The provisions of sub-sec. (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death. “9. Analogous provision to Section 256 of Code 1973 was contained in Sec. 247 of Criminal Procedure Code, 1898. In Section 247 the proviso was added in 1955 saying that “where the Magistrate is of the opinion that personal attendance is not necessary, he may dispense with such attendance.” The said proviso took out the rigour of the original rule and whole thing was left to the discretion of the Court. Sub-sec. (1) of Section 256 contains the above proviso in the similar manner. Thus, even in case of trial of summons-case it is not necessary or mandatory that after death of complainant the complainant is to be rejected, in exercise of the power under proviso to Section 256 (1), the Magistrate can proceed with the complaint. (Emphasis supplied). Sub-sec. (1) of Section 256 contains the above proviso in the similar manner. Thus, even in case of trial of summons-case it is not necessary or mandatory that after death of complainant the complainant is to be rejected, in exercise of the power under proviso to Section 256 (1), the Magistrate can proceed with the complaint. (Emphasis supplied). More so, the present is a case where offence was alleged under Section 420, 467, 468, 471, 120B and 201 read with 34 IPC for which procedure for trial of summons case was not applicable and there is no provision in Chapter XIX “Trial of warrant-cases by Magistrates” containing a provision that in the event of death of complainant the complaint is to be rejected. The Magistrate under Section 249 has power to discharge a case where the complainant is absent. The discharge under Section 249, however, is hedged with condition “the offence may be lawfully compounded or is not a cognizable offence. “Had the Code 1973 intended that in case of death of complainant in a warrant case the complaint is to be rejected, the provision would have indicated any such intention which is clearly absent. 10. In this context a reference is made to judgment of this Court in Ashwin Nanubhai Vyas v. State of Maharashtra, AIR 1967 SCC 983. In the said case this Court had occasion to consider the provisions of Criminal Procedure Code, 1898. The complainant had filed a complaint against the appellants. The complaint was filed under Sections 498 and 496 IPC. Accused was summoned. However, during the pendency of the complaint, the complainant died. The complainant's mother applied for substituting her to act as complainant and continue the proceedings. Magistrate permitted the mother of complainant to pursue the complaint against which revision was filed before the High Court which was dismissed. Aggrieved by the order of the High Court the appellant had come up before the Court. In the above context this Court considered the pari materia provisions of the Criminal Procedure Code, 1898 with regard to Section 247 (now Section 256) it was specifically held that said provision does not furnish any valid analogy. In paragraph 4 of the judgment following was observed: “4. Mr. In the above context this Court considered the pari materia provisions of the Criminal Procedure Code, 1898 with regard to Section 247 (now Section 256) it was specifically held that said provision does not furnish any valid analogy. In paragraph 4 of the judgment following was observed: “4. Mr. Keswani for Vyas, in support of the abatement of the case, relied upon the analogy of Section 431 under which appeals abate and Sections 247 and 259 under which on the complainant remaining absent, the court can acquit or discharge the accused. These analogies do not avail him because they provide for special situations. Inquiries and trials before the court are of several kinds. Section 247 occurs in Chapter XX which deals with the trial of summons cases by a Magistrate and Section 259 in Chapter XXI which deals with trial of warrant cases before Magistrates. Under the former, if summons is issued on a complaint and the complainant on any day remains absent from the court, unless it decides to proceed with the trial, must acquit the accused. This can only happen in the trial of cases, which are punishable with imprisonment of less than one year. This not being the trial of a summons case but a committal inquiry, Section 247 neither applies nor can it furnish any valid analogy. Similarly, Section 259, which occurs in the Chapter on the trial of warrant cases, that is to say cases triable by a Magistrate and punishable with imprisonment exceeding one year can furnish no analogy. Under Section 259, if the offence being tried as a warrant cases is compoundable or is not cognizable the Magistrate may discharge the accused before the charge is framed if the complainant remains absent. Once again this section cannot apply because the Presidency Magistrate was not trying the case under Chapter XXI.” 18. So far as second argument regarding applicability of Section 262 Cr.P.C. is concerned, it may be noted here that the Court cannot review the judgment or a final order. The order dated 15.7.2016 saying that if on 22.8.2016 the complainant will not produce evidence, the same shall be deemed to be closed, cannot be termed as a final order, as Section 311 Cr.P.C., vest in the Court power to grant an opportunity to the complainant to lead the evidence, in the interest of justice. The order dated 15.7.2016 saying that if on 22.8.2016 the complainant will not produce evidence, the same shall be deemed to be closed, cannot be termed as a final order, as Section 311 Cr.P.C., vest in the Court power to grant an opportunity to the complainant to lead the evidence, in the interest of justice. To test the above argument, it is to be considered, whether by passing the said order, the Court become functus-officio or not. By virtue of order dated 15.7.2016 the Court had not become functus-officio, as neither the judgment was delivered nor final order was passed. Therefore, the Court in its wisdom, on 22.8.2016 was well within its right to adjourn the matter on 2.9.2016. 19. In the case of Jai Singh v. Soma @ Som Nath, reported as 2006 (4) RCR (Cri.) 547, the Punjab and Haryana High Court held as under:— “7. On 16.8.2002, the trial Court ordered closure of prosecution evidence, for its failure to conclude evidence, despite numerous opportunities. The petitioner, who is the complainant, filed an application, under Section 311 of the Cr.P.C., praying for permission to lead additional evidence. The trial Court dismissed the application holding that it had no jurisdiction to review its order dated 16.8.2002 directing closure of the prosecution evidence. 8. The trial Court, in my considered opinion, erred in jurisdiction and in law, while dismissing the application. It erroneously construed that acceptance of an application, filed under Section 311 of the Cr.P.C., would require it to review its order, dated 16.8.2002. This inference, in my considered opinion, is unwarranted and unsustainable in law. Powers, conferred upon a Court, under Section 311 of the Cr.P.C., are in no manner circumscribed by an order directing closure of evidence. The expressions “at any stage of any inquiry trial or other proceedings under the Cr.P.C.,” appearing in Section 311 of the Cr.P.C. clearly suggest that this power can be invoked by a Court at any stage of any inquiry, trial or other proceedings under the Cr.P.C., subject, however, to an over-riding principle that the evidence, sought to be adduced, should appear to the Court to be essential for a just decision of the case, the paramount consideration being “just decision of a case”. To therefore, construe an order directing closure of evidence as a bar to the exercise of powers, under Section 311 of the Cr.P.C. to be an application for review of the order closing evidence, in my considered opinion, would be unwarranted. Such an interpretation to the provisions of Section 311 of the Cr.P.C., does not flow from the language used therein. The learned trial Court, there fore, committed an error of jurisdiction and law, while dismissing the application, filed by the petitioner. Consequently, the present petition is allowed and the order dated 23.11.2002 is set aside. The learned trial Court shall consider and decide the application, filed by the petitioner/complainant, under Section 311 of the Cr.P.C., afresh, in accordance with law. The parties, through their counsel, are directed to appear before the trial Court on 9.10.2006.” 20. The order passed by the trial Judge on 15.7.2016 that if on a given date the complainant will not produce pre-charge evidence, the evidence shall be deemed to have been closed, is neither a judgment nor a final order within the ambit of Section 262 Cr.P.C. Therefore, on a subsequent date, on justifiable cause disclosed as in the present case, the trial Court could afford another opportunity to the complainant to lead pre-charge evidence. 21. Taking totality of circumstances, and for the reasons stated hereinabove, there is no merit in the present case and the same is, hereby, dismissed.