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Gujarat High Court · body

2022 DIGILAW 1847 (GUJ)

Mamta Dilipbhai Rana v. State Of Gujarat

2022-12-23

GITA GOPI

body2022
ORDER : 1. Mr. Vedant Gaikwad, learned advocate for the appellant states that the appellant– original complainant of Criminal Case no.1564 of 2019 has challenged the judgment and order dated 27.6.2022 passed by the learned JMFC, Vadodara while dismissing the complaint under Section 256 of the Code of Criminal Procedure, 1973 and acquitting the accused. Mr. Gaikwad submits that the impugned order is bad in law and is against the directions of the Hon'ble Supreme Court passed in the case of Indian Bank Association Vs. Union of India, reported in (2014) 5 SCC 590 and further referring to an order below Exh.30, Mr. Gaikwad submits that the learned Trial Court Judge should not have passed any order under Section 256 of the Cr.P.C. since the complainant was represented by an advocate on record. Mr. Gaikwad submits that the matter was lastly listed on 26.5.2022 when the appellant and his advocate were present before the Court and an application was given for closing the right of the accused for cross-examination as accused was not present before the Court at the given time. Mr. Gaikwad submits that thereafter, the respondent no.2 appeared before the Court along with his advocate at 01:30 p.m. and thereafter, the learned Trial Court Judge, by an order, directed both the parties to remain present on 27.5.2022 at 03:00 p.m. for conducting the matter. Mr. Gaikwad submits that on 27.5.2022, the present appellant could not remain present, but a report was moved by the advocate showing the cause of non-appearance before the Court and the said reason, according to Mr. Gaikwad, is reflected in the order of the learned Trial Court Judge. Inspite of that, the learned Judge came to the conclusion that the appellant was negligent in conducting the case. He further states that as per the Rojnama, the examination-in-chief was produced at Exh.4, list of documents vide Exh.3 and an application under Section 143A of the N.I. Act was moved for directing the accused to pay the interim compensation and it was kept for hearing and on 19.10.2019, after hearing, the said application was reserved for orders and on 19.10.2019 as per the Rojnama, the order was passed. Mr. Mr. Gaikwad submits that the matter was adjourned owing to the Office Order of the District Court on account of pandemic Corona virus Covid-19 and then, on 8.2.2020, non-bailable warrant was issued against the accused and the proceedings from time to time continued on serving of non-bailable warrant to the accused. On 24.9.2021, the application to cancel the warrant was moved and vide Exh.21, the permanent exemption application was moved by the accused. Mr. Gaikwad states that on 27.9.2021, the documents were ordered to be exhibited from Exhs.22 to 25 and the matter was posted for cross-examination and for the execution of order below Exh.12. Mr. Gaikwad submits that the order below Exh.12 was not implemented by the accused and vide Exh.30, the complainant has moved the Court to close the right of the accused of cross-examination, but the learned Judge directed both the parties to proceed with the matter on 27.5.2022 at 15:00 hrs. with a further direction that in failure of any party/advocate remaining absent, appropriate order would be passed. Mr. Gaikwad submits that the impugned order reflects that the advocate of the complainant had moved the Court for an adjournment informing the Court that the complainant was on a religious procession and on that ground, asked for adjournment. 2. The record and proceedings, as submitted, shows that the matter was for the implementation of an order below Exh.12 which was passed under Section 143A of the N.I. Act. The accused was to pay the money as per the order. The complainant had moved Exh.30 requesting the Court to close the stage of cross-examination of the accused. The learned Judge, while passing the order on 26.5.2022 below Exh.30, had observed that the complainant and his advocate were present in the morning and thereafter, at 13:30 hrs., the accused and his counsel remained present, but at that time, the complainant or his counsel were not before the Court. Hence, the learned Judge directed the parties to proceed with the matter on 27.5.2022. The learned Judge, on the date of rejecting the complaint on 27.6.2022, ought to have referred to the proceedings of the matter. The case was on execution of the order below Exh.12. The complainant had also urged the Court to close the stage of cross-examination and on the very day when the matter was dismissed for default, the applicant’s lawyer was present before the Court. 3. Mr. The case was on execution of the order below Exh.12. The complainant had also urged the Court to close the stage of cross-examination and on the very day when the matter was dismissed for default, the applicant’s lawyer was present before the Court. 3. Mr. Gaikwad referring to the judgment of this Court in the case of Jain Enamel Works Vs. State of Gujarat, reported in 2018 (0) AIJEL-HC 239029, submits that exercise of powers under Section 256 of the Code of Criminal Procedure, 1973 dismissing the matter for want of prosecution is considered as travesty of justice. 4. The learned Trial Court Judge should have adopted the directions, which were given in the case of Indian Bank Association (supra) for matters filed under Section 138 of the N.I. Act, which are as under:- “(1) The Metropolitan Magistrate / Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the NI Act is presented, shall scrutinise the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons. (2) The MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. The Court, in appropriate cases, may take the assistance of the police or the nearby Court to serve notice to the accused. For notice of appearance, a short date be fixed. If the summons is received back unserved, immediate follow-up action be taken. (3) The court may indicate in the summon that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, Court may pass appropriate orders at the earliest. (4) The court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251 CrPC to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) of the NI Act for recalling a witness for cross-examination. (5) The court concerned must ensure that examination-in-chief, cross-examination and re-examination of the complainant must be conducted within three months of assigning the case. (5) The court concerned must ensure that examination-in-chief, cross-examination and re-examination of the complainant must be conducted within three months of assigning the case. The court has option of accepting affidavits of the witnesses instead of examining them in court. The witnesses to the complaint and the accused must be available for cross-examination as and when there is direction to this effect by the Court.” 5. According to the directions, as held in the case of Indian Bank Association (supra), after the issuance of summons, the Judicial Magistrate is required to adopt the pragmatic approach and may pass an appropriate order at the earliest by indicating in the summons, if accused make an application for compounding of offence at the first hearing of the case, the Court may pass appropriate orders at the earliest, the Courts shall direct the accused to ensure his appearance during the trial and take notice under section 251 of Cr.P.C. to enable him to enter his plea of defence and fix case for defence evidence, unless the application is made by the accused under section 145(2) of the N.I. Act for recalling witness for cross-examination. 6. 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. 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. 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.” 7. 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.” 7. 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." 8. 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. 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." 9. Thus, considering the record and proceedings and the fact that on the date of dismissal of the complaint as default, the learned advocate of the complainant was present before the Court and had moved Exh.31 asking for an adjournment. The order on that day dismissing the complaint for default is bad in law. Exh.31 was on record asking for adjournment and on the date of dismissal of the complaint, the complainant was represented by a lawyer. Hence, the impugned judgment and order dated 27.6.2022 passed by the learned JMFC, Vadodara in Criminal Case no.1564 of 2019 is quashed and set aside and is ordered to be restored on the file of the concerned Judge from the stage of cross-examination of the complainant. Accordingly, the present appeal is allowed. Record and proceedings received, if any, be remitted back to the Trial Court forthwith.