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2018 DIGILAW 59 (ALL)

SANT LAL v. STATE OF U. P.

2018-01-08

ARVIND KUMAR MISHRA I

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JUDGMENT : Hon'ble Arvind Kumar Mishra-I,J. 1. Despite repeated calls, none turns up on behalf of the appellant. Although, the appellant- Sant Lal- is the complainant in this case. Lower court record was directed to be summoned at the expense of the appelant on his request by this Court on 26.11.1084, but the office report dated 06.01.2018 reflects that lower court record has not been received till date. 2. Appeal is of the year 1987; 30 years have already elapsed and this appeal against order of dismissal/rejection of complaint has been pending ever since. It would be feasible and in the interest of justice that no useful purpose shall be served in keeping the matter pending in this Court even after elapse of three decades. 3. Faced with the aforesaid contingency and looking to the huge pendency of cases before this Court, this Court is not inclined to pass over this appeal. Under identical circumstances, the Apex Court, after a comprehensive analysis of previous decisions on the issue, has distilled the legal position into six propositions in paragraph 19 of its judgement delivered in the case of K.S. Panduranga v. State of Karnataka (2013) 3 SCC 721 : 19.1 That the High Court cannot dismiss an appeal for non-prosecution simpliciter without examining the merits; 19.2 That the Court is not bound to adjourn the matter if both the appellant or his counsel/lawyer are absent; 19.3 That the court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so;" 19.4 That it can dispose of the appeal after perusing the record and judgement of the trial court; 19.5 That if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the appellant-accused if his lawyer is not present, and if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the court from doing so; and 19.6 That if the case is decided on merits in the absence of the appellant, the higher court can remedy the situation. 4. 4. Thus, in view of the legal position propounded by the Apex Court in the case of K.S. Panduranga (Supra), this Court proceed to examine this appeal on merits qua appellant- Sant Lal with the assistance of Sri B.D. Nishad, learned A.G.A. Heard learned A.G.A. on behalf of the State and perused record as available on file. 5. Obviously, the facts have been brought out in the accompanying affidavit to the memo of appeal, which reveal that a Complaint Case no.457 of 1983, Sant Lal Versus Ram Naresh against the opposite party nos.2 to 6, under Sections 147, 148, 323, 324 IPC was filed in the court of the then Munsif Magistrate, Varanasi. Statement of the complainant and witnesses were recorded under relevant Sections of Criminal Procedure Code and after considering the material on record the accused party nos. 2 to 6 were summoned by the Magistrate concerned for appearance. 6. Opposite party nos. 2 to 6 appeared before the court concerned and charges were framed against the accused (opposite party nos.2 to 6) on 30.06.1983 and the case was fixed for evidence under Section 246 of Code of Criminal Procedure. Several dates were fixed and it has been claimed that complainant appeared before the court concerned, but the case was adjourned on all dates and on 26.09.1984 the next date was fixed for further proceeding. 7. As averred in the affidavit, the eye-witnesses of the case were cross- examined by the accused persons on 26.09.1984, but due to illness the complainant could not appear before the court concerned. It has been claimed that the Magistrate concerned illegally dismissed the complaint on 26.09.1984 in the absence of the complainant at the stage of 246 Code of Criminal Procedure. 8. By making averment in the affidavit it has been claimed by the order dated 26.09.1984 is illegal on the ground that proceeding has been taken by the trial court as warrant case and proceeding/case cannot be dismissed in absence of complaint after framing of the charge. However, this plea cannot be accepted on its face value because appellant has annexed only one order of court below- order- sheet of date 26.09.1984 and no other order, whatsoever has been annexed by the appellant to vindicate his claim as averred in the accompanying affidavit. 9. However, this plea cannot be accepted on its face value because appellant has annexed only one order of court below- order- sheet of date 26.09.1984 and no other order, whatsoever has been annexed by the appellant to vindicate his claim as averred in the accompanying affidavit. 9. It appears that the complainant did not take any interest in the proceeding of the case and adopted lethargic attitude towards the case. It is noticeable that despite obtaining order from this Court for obtaining lower court record at his own expenses in November, 1984, the complainant- appellant has failed for more than 30 years since the order was passed by this Court for summoning record of lower court at the expenses of informant. But no worthy step taken nor this court was urged to do the needful for availing lower court record. This clearly shows the lethargic attitude and lack of sincerity of the complainant to pursue this case and his sincerity is questionable. 10. There is nothing on record which may spell on fact that witnesses were being cross- examined and the complaint had urged and reasonable cause for his non- appearance. Mere statement made in affidavit would not give thrust to the actual proceeding drawn by the lower court. No worthy and relevant paper in support of averements made in affidavit has been filed. 11. In view of above, the Magistrate was wholly justified in dismissing the complaint. Consequently, it cannot be said that the order passed by the Magistrate concerned dated 26.09.1984 is either illegal or erroneous. Hence, leave to appeal is refused and consequently, this appeal is hereby dismissed.