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The Code Of Criminal Procedure, 1973
Section 203 in The Code Of Criminal Procedure, 1973
Section 249 in The Code Of Criminal Procedure, 1973
The Indian Penal Code
Section 202 in The Code Of Criminal Procedure, 1973

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Gujarat High Court
A.H. Pathan vs Amin Textiles And Ors. on 28 July, 1993
Equivalent citations: 1995 CriLJ 1843, (1995) 1 GLR 400
Author: B Patel
Bench: B Patel

ORDER

B.C. Patel, J.

1. Against the order of dismissal of a complaint and discharge passed on 12-3-1986 in Criminal Case No. 103/85 by Chief Metropolitan Magistrate, Ahrnedabad, present petition is filed.

( x x x Para 2 x x x )

3. When a complaint is lodged before the Magistrate and if the Magistrate is taking cognizance on it, then as per the mandate, Magistrate shall have to examine on oath the complainant and the witnesses present if any and the substance of such examination shall have to be reduced to writing and shall be signed by the complainant, witnesses and the Magistrate. However, in case of public servant, if while acting or purporting to act in discharge of his official duties complaint is filed, the Magistrate need not examine the complainant and the witnesses and may straightway issue process. This provision is made, it seems, with a view to save the valuable time of a public servant. On perusal of the record, it transpires that on 17-1-85 the process was issued and for service of the same to the accused matter was adjourned to 28-1-85. It appears that on 17-10-85 accused remained present. Thereafter, on 2-11-85, Acc No. 2 was present. However, the complainant was not present but on his behalf, a Junior advocate of Mr. R. K. Shah, advocate for complainant, was present. The matter was fixed for recording evidence on 16-12-85. The moment the matter is fixed for recording evidence, Section 244 pertaining to cases instituted otherwise than on a police report will apply. Section 244 reads as under:-

"244. (1). When in any warrant case instituted otherwise than a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the proseuction and take all such evidence as may be produced in support of the prosecution.

(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing."

There is nothing in the record to indicate that complainant appeared before the Court on any day thereafter or submitted any application for issuance of a summons to any of its witnesses directing him to attend or to produce any documents or other thing. The matter was adjourned to 16-12-85 for evidence. However, learned advocate for complainant remained present but on that date as accused No. 2 was not present on account of sicknes, prayed for time, which was granted by the Court and the matter was adjourned to 9-1-86. If on that day, even if the complainant would have been present, his evidence could have been recorded if exemption application was submitted by the accused, but that is not here or there as the complainant was not present nor any witness. On 9-1 -86, on behalf of the complainant, no one remained present. Even the learned advocate appearing for the complainant was not present on account of his engagment in other Court and some personal work in the second session. Application was forwarded and even in the absence of advocate or complainant, time was granted though the matter was fixed for evidence. On 24-1 -86, surprisingly, no one appeared on behalf of the complainant. Inspite of that, as the accused tendered an application through his advocate, the matter was adjourned to 5-2-86 for recording evidence. Even on 5-2-86, on behalf of the prosecution, no evidence was tendered. Accused with his advocate remained present. It is very clear that the complainant did not remain present, and therefore, evidence could not be recorded and the matter was adjourned to 17-2-86. On 17-2-86, again, no witness was present on behalf of the prosecution. Advocate for complainant was also not present but it appears that through a junior colleague, application was forwarded requesting the Court to grant adjournment on the grount that on the last date the complainant could not remain present and by mistake the complainant could not be informed. Learned Magistrate even accepted this application and adjourned the matter to 12-3-86. On that day, the accused remained present, but neither the complainant nor his advocate remained present before the Court and no evidence was tendered though the matter was fixed for evidence. Therefore, learned Magistrate passed an order indicating that neither the complainant nor his advocate has remained present on the last occasion also. However, on the ground that he was not informed, application was submitted by Mr. Shah and the matter was again adjourned. On that date also, neither the complainant nor his advocate remained present but the a-cused was present. No reasonable explanation is given for absence of complainant. True, complain-ant is a public servant; But when a complaint is filed1 and is fixed for hearing, it is essential that he should remain present. Observing this, the Court has dismissed the complaint and discharged the accused.

4. Section 249 of the Criminal Procedure Code contemplates as to what order can be passed in the absence of complainant. Of course, it is at the discretion of the Court. It reads as under:-

"249. 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."

The case was fixed for hearing and since 2-11-1985, the matter was fixed for recording evidence but neither the complainant nor the learned advocate appearing on behalf of the complainant has taken care. It is the primary duty of the complainant to remain present and equally of the advocate for complainant, more so when he has undertaken to inform the complainant. However, inspite of six dates given for tendering evidence on behalf of the prosecution, no evidence is produced before the Court. Therefore, learned Magistrate appears to have exercise powers Under Section 249 and this being not a cognizable offence, the magistrate has the discretion to pass such order.

5. Formerly, under the Old Criminal Procedure Code 1889, (hereinafter referred to as the Old Code) it was considered as the duty of the Court to issue summons. Section 252 of the old code reads as under:-

"252. (1) In any case instituted otherwise than on a police report, when the accused appears or is brought before a Magistrate, such Magistrate shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution: Provided that the Magistrate shall not be bound to hear any person a complainant in any case in which the complaint has been made by a Court.

(2) The Magistrate shall ascertain from the complainant or otherwise the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon to give evidence before himself such of them as he thinks necessary."

Reading that section, it clearly appears that it was the duty of the Magistrate to ascertain from the complaint about persons likely to be acquainted with the facts of the case and from the language of the section it appears that it was the duty of the Court to issue summons to-give evidence before him. There is departure from it in the new Code. Sections 244 and 249 read together, it becomes very clear that when the case is fixed for hearing the Magistrate shall proceed to hear the prosecution and take such evidence as may be produced in support of the prosecution. It is the duty of the prosecution to produce evidence before the Court. However, in a given case, the complainant may not be able to produce evidence. Then in that case, he has to apply to the Magistrate for a summons. Thus, comparing the provisions in the old and new code, it is very clear that the Magistrate is not under and obligation to summon any witness of his own. It is the responsibility of the prosecution to move the Magistrate by an application to issue summons to any of its witnesses. In the instant case, therefore, it cannot be said that the Magistrate should have waited till the complainant appears before him and their witnesses are brought before the Court.

6. When a Public Servant has filed a prosecution, it becomes his duty to see that the trial proceeds as quickly as possible and he should not become an instrument in delaying the trial. In the instant case, in the memo of application, it is mentioned that simply because of on one or two occasions the complainant was not present, there was no justification in dismissing the complaint and discharging the accused. As discussed above, the rojnama clearly reveals that the complainant was not present on any date. It is also mentioned in the memo of application that the Chief Metropolitian Magistrate ought to have appreciated that on earlier occasion, no intimation was sent as admitted by the learned Public Prosecutor and therefore the complainant was not knowing the date on which the case was adjourned and obviously, for that reason, he could not remain present, while the Public Prosecutor remained present and gave an application for adjournment.

7. Mr. Nayak, learned counsel states that Mr. Shah who was the Superintendent of Central Excise has stated on oath that he did not receive any communication from the Public Prosecutor about the date. It is essential that a Public servant must be vigilant. Mr. Shah should have been careful once the prosecution was launched to see that the matter proceeds as quickly as possible. It should not be forgotten that under Article 21 of the Constitution, the State cannot avoid its obligation to provide speedy trial to the accused by pleading financial or adminstrative inability. The State is under a constitutional mandate to ensure speedy trial. Though the prosecution is launched at the instance of a public servant, the public servant states before the Court that he was not informed by. the Public Prosecutor. It is their internal matter. This Court has nothing to do with it. Public servant must be more careful in prosecutions.

It is required to be noted that in the instant case, no affidavit is filed by the Public Prosecutor who was in charge of this matter at the trial Court indicating that he could not inform the complainant in time. It is only after the dismissal of the complaint that the complainant states that he was not informed by the learned Public Prosecutor. To complete the chain, there must be affidavit of the Public Prosecutor indicating either that he could not communicate to the complainant or that the communication was sent by him but it might not have reached the complainant. In such a situation, a different view could have been taken, but in the absence of such affidavit of the Public Prosecutor who Was in charge of the matter, it is not possible to accept this contention.

8. Learned trial Magistrate has passed an order of discharge. It is not an order of acquittal. Section 300 of the Criminal Procedure Code prohibits the trial of a person once convicted or acquitted. The explanation to that section is relevant for the purpose of this case and it clearly states that dismissal of a complaint or discharge of the accused is not an acquittal for the purpose of this section. Hon'ble Supreme Court in the case Of Mohammed Safi v. State of West Bengal reported in AIR 1966 SC 69 : (1966 Cri LJ 75) has observed that for the applicability of rule autrefois acquit three essential conditions have to be satisfied, viz: (1). There must be a trail of the accused for the offences for which the accused was charged; (2) The trial must be by a Court of competent jurisdiction, and (3) There must be an order of acquittal. In the instant case, the complaint is dismissed for non prosecution and the accused has been discharged for want of evidence.

Section 203 of the Code of Criminal Procedure 1889 has been considered by the Hon'ble Supreme Court in the case of Pramatha Nath v. Saroj Ranjan, AIR 1962 SC 876: (1962 (1) Cri LJ 770). As per the majority view: (Para 48)

"an order of dismissal under Section 203 of the Code is no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, eg. where the previous order was passed on an incomplete record or on a misunderstandingof the nature of the complaint or it was manifestly absurd, unjust or foolish on where new facts which could not with reasonable diligence, have been brought on the record in the previous proceedings, have been adduced. It cannot be said to be in the interest of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into."

The provision considered by the Hon'ble Supreme Court in that case is of course for Section 203, but the principle settled therein is that when a complaint is dismissed, second complaint is not barred. In the instant case, an order of discharge is passed and that too, not based on complete records, and therefore, in the facts of this case, a second complaint was entertainable.

It is also further held by the Hon'ble Supreme Court that:-

"Where a complaint is filed and the Magistrate in an inquiry held under Section 202 takes the evidence offered by the complainant into consideration and comes to the conclusion that there is no ground to proceed, that the evidence is not worthy of credit and that he is not satisfied with the correctness of the complaint, he is entitled to refuse the issue of process and dismiss the complaint under Section 203. In such a circumstance, the order of dismissal made by the Magistrate cannot be said to be in any manner manifestly absurd, unjust or foolish, nor can it be said that the Magistrate ignored any principles which arc necessary to apply under Sections 202 and 203 of the Criminal Procedure Code nor that there are no sufficient grounds for doing so."

In another case reported in AIR 1986 SC 1440 : (1986 Cri LJ 1074) (A.S. Gauraya v. S.N. Thakur) the Hon'ble Supreme Court has considered Section 249 and 250 of the Criminal Procedure Code 1974. In that case, complaint came to be dismissed for default and for want of prosecution on 6-1-1972; The complainant filed an application for restoration of complaint; On 20-1-1972, the Magistrate passed the following order: "I heard Shri T. S. Sodhi. The complaint be restored. Summon accused for 21/2."

In para 9 of the judgment, the Hon'ble Supreme Court has observed as under:-

"9. Section 249 of the Criminal P.C. enables a Magistrate to discharge the accused when the complainant is absent and when the conditions laid down in the said section arc satisfied. Section 256(1) of the Criminal P. C. enables a Magistrate to acquit the accused if the complainant does not appear. Thus, the order of dismissal of a complaint by a criminal Court due to the absence of a complainant is proper order. But the question remains whether a Magistrate can restore a complaint to his file by revoking his earlier order dismissing it for the non-apperance of the complainant and proceed with it when an application is made by the complainant to revive it. A second complaint is permissible in law if it could be brought with in the limitations imposed by this Court in Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar, 1962 Supp (2) SCR 297 : AIR 1962 SC 876 : (1962 (1) Cri LJ 770), filing of a second complaint is not the same thing as reviving a dismissed complaint after recalling the earlier order of dismissal. The Criminal P. C. does not contain any provision enabling the Criminal Court to exercise such an inherent power."

(emphasis supplied)

In the facts of that ease, when the learned Magistrate recalled his own order, the Hon'ble Supreme Court held that the Magistrate cannot exercise any inherent jurisdiction. In the instant case, as there was no evidence on record and therefore the complaint came to be dismissed for non-prosecution, a second complaint is permissible in law, if it could be brought within the limitations imposed by Hon'ble Supreme Court in the decision reported in AIR 1962 SC 876 : (1962 (1) Cri LJ 770). Hon'ble Supreme Court has in clear terms observed that filing of a second complaint is not the same thing as reviving a dismissed complaint after recalling the earlier order of dismissal.

There is a distinction between acquittal and discharge. Discharge of the accused does not amount to acquittal. A person is said to be discharged when he is relieved from legal proceedings by an order which does not amount to judgment which is the final order in a trial terminating in either conviction or acquittal of the accused. An order of discharge is not a judgment. Discharge may take place cither after the preliminary inquiry or during the trial before a Magistrate. It may be that such a stage may arise before the accused has been called upon to plead. When no charge is drawn up against the accused to which he could plead, and in such a situation, an order would be of discharge and not acquittal. Discharge leaves the matter at large for all purposes of judicial inquiry and there is nothing to prevent the Magistrate from discharging the accused from inquiring into the case.

In view of the aforesaid position, it was open for the complainant to file afresh complaint subject to the limitations prescribed by the Hon'ble Supreme Court referred to hereinabovc. It was for the complainant to point out whether the case falls within the four corners or not. If, therefore, another complaint would have been filed immediately after dismissal of the first complaint, possibily the trial would have been over by now. In the instant case, it is not possible to say that the order passed by the learned Magistrate is illegal or erroneous. If the complainant is not prosecuting his complaint though sufficient time is given, then there is no other option for the Court but to dismiss it for non-prosecution, and as such, the order is not perverse and it is not possible to say that the trial Court has committed an error.

In the result, no interference is called for and this application stands rejected. Rule discharged.