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Gujarat High Court · body

2022 DIGILAW 1754 (GUJ)

Bherulal Devilal Kharol v. State Of Gujarat

2022-12-14

GITA GOPI

body2022
ORDER : Order in Criminal Misc. Application In view of the submissions and the grounds raised in the application, leave to appeal is granted. The application stands disposed of. Order in Appeal Admit. 1. Advocate Mr. Jatin Yadav for Mr. P.P. Majmudar, learned advocate for the applicants has produced rojnama of the proceedings of Criminal Case No.47510 of 2013 to challenge the order dated 18.12.2022, where the matter came to be dismissed for default and the accused was acquitted. 2. Mr. Yadav submitted that the learned Judge has not even perused the proceedings, when the matter was actually for the hearing of Exhibit-38, which was filed on 24.08.2018 under section 91 of Cr.P.C., praying for a direction to the accused to produce the documentary evidence. Thereafter, the matter stood transferred to 18th Additional Chief Judicial Magistrate and continued for hearing, where none of the parties had even prayed for any adjournment. 3. Mr. Yadav submits that there was an application for summons to the complainant and on the very next adjournment, the proceedings shows that the Court was on video conferencing and matter stood adjourned to 03.07.2021, where the matter was again posted for hearing of Exhibit-38. Mr. Yadav submitted that it was strange that, an application, Exhibit-42, was moved from the side of accused to dismiss the matter and the learned Judge even thereafter posted twice the matter for hearing of Exhibit-42 and oblivious of the fact that on earlier date the matter was for hearing of Exhibit- 38. Mr. Yadav submitted that the complainants were represented by Advocate on record and when the application was moved under section 91 of Cr.P.C. for a direction to the accused to produce documentary evidence, the learned trial Court Judge ought not to have dismissed the matter. 4. Here, in this case, the verification of the matter was taken on the private complaint and Inquiry was numbered as 760 of 2013, and after verification under an order, the Criminal Case No.47510 of 2013 was registered, cognizance was taken and process was issued under section 204 of the Cr.P.C. The learned Judge ought to have considered that there was no dismissal of the complaint under section 203 of Cr.P.C. The learned Additional Chief Judicial Magistrate was of the opinion of taking cognizance of the offence considering to be a sufficient ground for proceeding and therefore, ordered for issuance of summons. The learned Judge ought to have taken into consideration the provisions of section 205 of Cr.P.C. and the very provision, which grants the power to the Magistrate to dispense with the personal attendance of the accused and permit him to appear by his pleader, and can direct the personal attendance of the accused as and when necessary. At the same time, ought to have seen that the complainant is represented by an Advocate on record and there was an application, Exhibit- 38, to invoke the power under section 91 of the Cr.P.C.; the learned Judge should have heard that application first rather than entertaining the application for dismissal of the complaint, observing that the complainant is not interested in proceeding with the matter, where on record, the complainant had given his verification and the Court had deemed fit to take cognizance of the matter. The matter was for hearing of the application, Exhibit-38, and the order passed for dismissal of the complaint for default of the complainant and acquitting the accused, is inherently bad in law. 5. In Associated Cement Co. Ltd. Vs. Keshvanand, reported in (1998) 1 SCC 687 , the Hon’ble Apex Court while referring to the provisions of section 256 of Cr.P.C. in context of the complaint filed under section 138 of the N.I. Act, has made observations as under: “15. Section 256 of the Code of Criminal Procedure, 1973 (for short 'the new Code') is the corresponding provision to Section 247 of the old Code. The main body of both provisions is identically worded, but there is a slight difference between the provisos under the two sections. The proviso to section 256 of the new code is reproduced here: “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." 16. What was the purpose of including a provision like Section 247 in the old code (or section 256 in the new Code). It affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. An accused who is per force to attend the court on all posting days can be put to much harassment by a complaint. It affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. An accused who is per force to attend the court on all posting days can be put to much harassment by a complaint. An accused who is per force to attend the court on all posting days can be put to much harassment by a complainant if he does not turn up to the court on occasions when his presence is necessary. The Section, therefore, affords a protection to an accused against such tactics of the complainant. But that does not mean if the complainant is absent, court has a duty to acquit the accused in invitum. 17. Reading the Section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the Section. First is, if the court thinks that in a situation it is proper to adjourn the hearing then the magistrate shall not acquit the accused. Second is, when the magistrate considers that personal attendance of the complainant is not necessary on that day the magistrate has the power to dispense with his attendance and proceed with the case. When the court notices that the complainant is absent on a particular day the court must consider whether personal attendance of the complainant is essential on that day for progress of the case and also whether the situation does not justify the case being adjoined to another date due to any other reason. If the situation does not justify the case being adjourned the court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must therefore be exercised judicially and fairly without impairing the cause of administration of criminal justice.” 5.1 This Court in case of State v. Keshavram, reported in 1977 GLR 524 , held as under: "The power under Sec. 256 of the Criminal Procedure Code has been conferred on the Magistrate obviously for the ends of justice and with a view to see that an accused person is not subjected to any undue harassment. The proviso to Sec. 256 further lays down that when the complainant is represented by a Pleader or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. In the instant case, the situation on the day in question squarely fall within the proviso and still the learned Magistrate has acted under the main part of this section. This is really unfortunate and it is hoped that repetition of such instances would not be there in future in the Court of the Magistrate." 5.2 Similarly, in the case of Sureshchandra Chandulal Patni V. Natwarlal Keshavlal Patni, reported in 1992 (1) GLR 626 , this Court held that: "In the instant case, the learned Magistrate has not recorded any reason about his thinking it proper to adjourn the hearing of the case to some other date. It appears that he has ignored the proviso to Sec. 256 of the Code of Criminal Procedure. The power under Sec. 256 of the Code of Criminal Procedure has been conferred on the Magistrate obviously in the interest of justice, with a view to seeing that the accused is not subjected to any undue harassment. It is clear from the proviso to Sec. 256 of the Code of Criminal Procedure that when the complainant is represented by a pleader or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with the personal attendance of the complainant and proceed with the case. In the instant case, the learned Magistrate does not appear to have applied his mind in dispensing with the personal attendance of the complainant and to proceed with the case or to adjourn the case to some other date as requested in the application submitted by the Advocate for the complainant. In the present case, the situation as on March 5, 1984 squarely falls within the aforesaid proviso and still the learned Magistrate acted under sub-sec. (1) of Sec. 256 of the Code of Criminal Procedure acquitting the accused. It is therefore, clear that the learned Magistrate has ignored the provision contained in the proviso to Sec. 256 of the Code of Criminal Procedure." 6. (1) of Sec. 256 of the Code of Criminal Procedure acquitting the accused. It is therefore, clear that the learned Magistrate has ignored the provision contained in the proviso to Sec. 256 of the Code of Criminal Procedure." 6. Section 256 of Cr.P.C. has given the power to the Court concerned to dismiss the complaint only on the day when the summons has been issued on the complaint and on the day appointed for the appearance of the accused or in any subsequent day thereto, to which the hearing may have been adjourned, the complainant does not appear, the Magistrate shall despite anything contained in Cr.P.C. acquit the accused, unless for some reason he deems fit to adjourn the hearing of the case to some other day. The proviso to the said sub-section (1) clarifies that when the complainant is represented by a pleader or by an officer conducting the prosecution or where the Magistrate is of the opinion that personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. 7. Here, in this case, the complainant was represented by an Advocate on record. There was no reason for the trial Court Judge to dismiss the matter. When the pendency of matters with arrears show a long list, it would be not possible for the Court to deal with all the matters and it would not be expected from a litigant to simply sit in the Court while there would not be any progress in the matter, and more specifically when he is represented by an Advocate. 7.1 The learned trial Court Judge has taken a shortcut to dispose of the matter rather than considering the case of the complainant to decide on merits. The learned trial Court Judge ought to have kept in mind that the order below section 256 Cr.P.C. dismissing the complaint in default leads to acquittal of the accused, and once an accused has been acquitted in the offence, the law provide a remedy by way of appeal against the order of acquittal under section 378(4) of the Cr.P.C. A simple order of dismissal of the case without any scope of restoring the same would drag the litigant to the higher Court for filing the appeal to get the order quashed and set aside. The learned trial Court Judge was required to give an overview of his own proceedings. The order is without any application of mind; it is a mechanical order for disposing of the case rather than deciding the case on merits. 8. Thus, in view of the reasons given above, the order dated 18.12.2021 in Criminal Case No.47510 of 2013 passed by the 12th Additional Chief Judicial Magistrate, Surat, is quashed and set aside. The Criminal Case No.47510 of 2013 is ordered to be restored in original status on the file of the concerned Court with a direction to proceed with the matter from the stage of hearing of Exhibit-38. The application stands disposed of. Record & Proceedings, if any, be sent back to the concerned Court.