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2023 DIGILAW 66 (HP)

Jai Pal v. Jagat Agencies

2023-01-13

VIVEK SINGH THAKUR

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JUDGMENT : Vivek Singh Thakur, J. Petitioner has approached this Court against impugned order dated 10.12.2021 passed by Chief Judicial Magistrate, Sirmour at Nahan, H.P. in case No. 95/3 of 2018, titled a Jagat Agencies Vs. Jai Pal, whereby application filed by petitioner Jai Pal under Section 258 of the Code of Criminal Procedure for closing the proceedings by discharging him, has been rejected. 2. Admittedly, trial before the Court below has been initiated on private complaint filed by M/s Jagat Agencies. 3. Learned counsel for the respondent submits that provisions of Section 258 of Cr.P.C. are not applicable in the case where prosecution has been initiated on the basis of private complaint. To substantiate his plea, he has referred pronouncement of the Supreme Court reported in John Thomas Vs. Dr. K. Jagadeesan, (2001) 6 SCC 30 , wherein in para 8, it has been observed as under:- “8. Summons cases are generally of two categories. Those instituted upon complaints and those instituted otherwise than upon complaints. The latter category would include cases based on police reports. Section 258 of the Code is intended to cover those cases belonging to one category alone i.e. "summons cases instituted otherwise than upon complaints". The segment separated at the last part of the section by the words "and in any other case" is only a subcategory or division consisting of "summons cases instituted otherwise than upon complaints". That sub- category is not intended to cover all summons cases other than those instituted on police report. In fact, Section 258 vivisects only "summons cases instituted otherwise than on complaints" into two divisions. One division consists of cases in which no evidence of material witness was recorded. The section permits the court to acquit the accused prematurely only in those summons cases instituted otherwise than on complaints wherein the evidence of material witnesses was recorded. But the power of court to discharge an accused at midway stage is restricted to those cases instituted otherwise than on complaints wherein no material witness was examined at all.” 4. The Supreme Court in its order dated 16.4.2021 passed by five Judges Bench in Suo Motu Writ Petition (Cr.) No. 2 of 2020, has observed as under:- “20. Section 143 of the Act mandates that the provisions of summary trial of the Code shall apply “as far as may be” to trials of complaints under Section 138. The Supreme Court in its order dated 16.4.2021 passed by five Judges Bench in Suo Motu Writ Petition (Cr.) No. 2 of 2020, has observed as under:- “20. Section 143 of the Act mandates that the provisions of summary trial of the Code shall apply “as far as may be” to trials of complaints under Section 138. Section 258 of the Code empowers the Magistrate to stop the proceedings at any stage for reasons to be recorded in writing and pronounce a judgment of acquittal in any summons case instituted otherwise than upon complaint. Section 258 of the Code is not applicable to a summons case instituted on a complaint. Therefore, Section 258 cannot come into play in respect of the complaints filed under Section 138 of the Act. The judgment of this Court in Meters and Instruments (supra) in so far as it conferred power on the Trial Court to discharge an accused is not good law. Support taken from the words “as far as may be” in Section 143 of the Act is inappropriate. The words “as far as may be” in Section 143 are used only in respect of applicability of Sections 262 to 265 of the Code and the summary procedure to be followed for trials under Chapter XVII. Conferring power on the court by reading certain words into provisions is impermissible. A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation. The Judge’s duty is to interpret and apply the law, not to change it to meet the Judge’s idea of what justice requires. The court cannot add words to a statute or read words into it which are not there.” 5. I have gone through the impugned order as well as above referred pronouncements of the Supreme Court. In view of ratio of aforesaid judgments, I do not find any illegality, irregularity or perversity in the impugned order passed by the Magistrate. Accordingly, present petition is dismissed with observation that this Court has not expressed any opinion on merits of the case/trial pending before the Trial Court. Parties are at liberty to raise all contentions before the Trial Court, as permissible under law. 6. Accordingly, present petition is dismissed with observation that this Court has not expressed any opinion on merits of the case/trial pending before the Trial Court. Parties are at liberty to raise all contentions before the Trial Court, as permissible under law. 6. Petition stands disposed of in above terms, so also pending applications, if any.