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Hari Nilkantha Patwardhan Vs. Mahadev Vinayak Sathe - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case Number Criminal Revision Application No. 258 of 1980
Judge
Reported in(1981)83BOMLR524; 1982MhLJ91
AppellantHari Nilkantha Patwardhan
RespondentMahadev Vinayak Sathe
Excerpt:
.....of complainant and his witnesses after charge is framed--whether magistrate has power to discharge accused--scope of inherent powers-order of discharge if can be treated as order of acquittal.;there is only one case in which the magistrate is empowered, to discharge the accused in default of appearance of the complainant and that is as provided in section 249 of the code of criminal procedure, 1973. there is no pro-vision in the code for discharging the accused for non-appearance after the charge is framed. if the complainant is absent after the charge is framed, the magistrate can adjourn the matter, but if the magistrate does not choose to adjourn the matter for default of appearance of the complainant or the witnesses the only course that the magistrate can adopt is to..........application, raises an important question of law, viz., whether the magistrate has got power to discharge the accused under section 249 of the code of criminal procedure in default of appearance of the complainant or of the witnesses, who were examined prior to the framing of the charge and whose presence was required for the purpose of cross-examination.2. the complainant is a teacher in vidya mandir prashala, miraj. he filed a complaint against the petitioner under section 408 of the indian penal code on the allegation that between june 30, 1963 and august 19, 1963, the petitioner misappropriated the amount of rs. 292.50, which was, alleged to have been entrusted to the petitioner. according to the complainant, the accused was the head master in a school called vidya mandir.....
Judgment:

Rele, J.

1. This revision application, raises an important question of law, viz., whether the Magistrate has got power to discharge the accused under Section 249 of the Code of Criminal Procedure in default of appearance of the complainant or of the witnesses, who were examined prior to the framing of the charge and whose presence was required for the purpose of cross-examination.

2. The complainant is a teacher in Vidya Mandir Prashala, Miraj. He filed a complaint against the petitioner under Section 408 of the Indian Penal Code on the allegation that between June 30, 1963 and August 19, 1963, the petitioner misappropriated the amount of Rs. 292.50, which was, alleged to have been entrusted to the petitioner. According to the complainant, the accused was the Head Master in a school called Vidya Mandir Prashala, in the year 1962-63. The said amount of Rs. 292.50 was received by the Prashala from the N.C.C. office for the clothes of A.C.C. students, it is alleged that this amount was received by the petitioner on March 30, 1963 being the Head Master. On June 11, 1963 ,the petitioner resigned from service. It was noticed that the said amount of Rs. 292.50 was not entered in the books of account of the Prashala. It is, therefore, alleged that the said amount was misappropriated by the petitioner. It is stated in the complaint that in August 1963, the petitioner was serving in Jubilee Girls English School at Miraj and the said amount was received by the Head Master of the school from the petitioner and it was sent to N.C.C. office. It is on these facts that the accused was charged under Section 408 of the Indian Penal Code for having misappropriated the amount. The complaint was filed on July 6, 1974, i.e., about 11 years after the commission of the offence although the amount was repaid as stated in the complaint in 1963.

3. On this complaint, summons was ordered to be issued and the complaint was tried as a warrant case and on behalf of the complainant witnesses, Mahadeo Vinayak Sathe and Anant Dattatraya Toro were examined. Thereafter on June 22, 1976, the learned Magistrate framed a charge against the petitioner under Section 409 of the Indian Penal Code, which is at exh. 37.

4. On August 8, 1979, the case was fixed for cross-examination of the witnesses by the petitioner and on that day, the petitioner gave an application, exh. 73, that some papers which were produced in the case and which were sent to the office of the Charity Commissioner should be called back to enable the petitioner to cross-examine the witnesses. On August 20, 1979 the learned Judicial Magistrate, First Class, Miraj, passed an order as follows:

Neither the complainant nor his advocate present when called out thrice. The case is an old one pending for many years. It was fixed for cross after charge. Hence the complaint is dismissed for absence under Section 249 of Cr. P. C. and the accused is discharged.

As against the said order, the complainant preferred revision application in the Court of the learned Additional Sessions Judge, Sangli, and the learned Additional Sessions Judge, allowed the revision application and set aside the order dated August 20, 1979 passed by the learned Magistrate discharging the petitioner and remanded the matter for further trial according to law. Against the order, the petitioner has preferred this revision application.

5. Shri Apte, learned Advocate appearing on behalf of the petitioner, has contended that the learned Additional Sessions Judge has committed on error in law in setting aside the order of discharge passed by the learned Magistrate. According to him, the order of discharge was in effect an order of acquittal and the learned Additional Sessions Judge had no jurisdiction to set aside an order of acquittal. In interfering with the order passed by the learned Magistrate, the learned Additional Sessions Judge has acted in excess of his jurisdiction. He has relied upon the decisions of the Calcutta High Court, of the Allahabad High Court and of the Pepsu High Court, which have been referred to in the Judgment of learned Additional Sessions Judge in support of the proposition that an order of discharge passed after the charge is framed amounts to an order of acquittal.

6. Shri Vaze, the learned Advocate appearing on behalf of the first respondent-complainant, has submitted that the order passed by the learned Additional Sessions Judge was, the correct order to be passed and that this Court should not interfere with the order that has been passed by the learned Additional Sessions Judge. Shri, Vaze has contended that the Magistrate had no jurisdiction to order discharge of the petitioner after the charge was framed and the order of discharge being itself an incorrect and an illegal order that was passed by the learned Magistrate, the learned Additional Sessions Judge was right in interfering with the order. He has relied upon the two decision's of this Court reported in Ganesh Narayan Dangre v. Eknaih Han Jhatnpe [1978] Mah. L.J. 387, and Sagunabai Lahanu Shende v. Patru Goma Lengure [1979] Mah. L.J. 18, and he has submitted that once the charge is framed the magistrate must proceed as required by Chapter XXI of the Code of Criminal Procedure and appreciate the evidence in this case and only thereafter may pass an order acquitting the accused or convicting him. According to Shri Vaze, there is no power conferred upon a Magistrate to discharge the accused in the absence of the complainant or any of the witnesses. He has further submitted that on the date, viz., August 20, 1979, when the learned Magistrate passed an order of discharge of the petitioner, the case was not fixed for hearing. It was only fixed for the say of the complainant on the application, exh. 73, of the petitioner-accused. He has referred to the Rozanama dated August 20, 1979, which reads:

Accused and Advocates present. Complainant absent when called out. Advocate absent when called out. Case is dismissed under Section 249 Criminal Procedure Code. Accused acquitted.

and he has submitted that the learned Magistrate has committed an error in law in discharging the petitioner-accused.

7. The complaint in this case is filed by Mahadeo Vinayak Sathe, a teacher in Vidya Mandir Prashala. It is a complaint filed otherwise than on police report and the learned Magistrate took cognizance of the offence and directed issue of summons under Section 204(2)(a) of the Code of Criminal Procedure. The Magistrate proceeded with the case as provided in Part B of Chapter XIX of the Code of Criminal Procedure Code, which deals with the procedure in cases instituted otherwise than on police report. The learned Magistrate proceeded to try the case in accordance with the warrant case procedure and in this case two witnesses were examined before framing charge as required by Section 244(1). The Magistrate did not consider that there was no case against the accused and he framed a charge as required by Section 246(1) of the Code. After the charge was framed, it appears that the case was posted for cross-examination by the petitioner of the witnesses who were examined before charge and on August 20, 1979 the order of discharge was passed as stated above.

8. Now, there is no provision in the Code of Criminal Procedure, 1973, of dismissing a case for default of appearance of the complainant or witness. There is, however, a provision for discharging the accused before the charge is framed. Under Section 249 of the Code of Criminal Procedure, the Magistrate is empowered to discharge the accused in the absence of the complainant, but he can do so only in case where the offence may be lawfully compounded or is not a cognizable offence. In no other case is the Magistrate empowered to discharge the accused. Section 249 of the Code of Criminal Procedure, 1973, states:

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 Scheme of Part B of Chapter XIX of the Code, which deals with the procedure in cases instituted otherwise than on police report, shows that after the charge is framed, the Magistrate is bound to recall witnesses for the purpose of cross-examination and re-examination as provided in Section 246(4) and (5) and thereafter the Magistrate is required to record the evidence of the remaining witnesses as provided in Section 246(6). It is only thereafter the accused is required to enter upon his defence as provided in Section 247 read with Section 243 of the Code of Criminal Procedure. It is only thereafter that the Magistrate can either convict the accused or acquit him as provided in Section 248 of the Code of Criminal Procedure. Therefore, there is only one case in which the Magistrate is empowered to discharge the accused in default of appearance of the complainant and that is as provided in Section 249 of the Code.

9. There is no provision in the Code of Criminal procedure for discharging the accused for non-appearance after the charge is framed. Section 249 of the Code of Criminal Procedure, 1973, empowers the Magistrate to discharge the accused of the offence which may be lawfully compounded or if the offence is a non-cognizable one, if the complainant is absent on a day fixed for the hearing of the case, at any time before the charge is framed. But what is to happen if the complainant is absent after the charge is framed? What should the Magistrate do in such a case? The Magistrate can adjourn the matter, but if the Magistrate does not choose to adjourn the matter for default of appearance of the complainant or the witnesses, the only course that the Magistrate can adopt is to proceed with the case on the evidence on record and dispose of the matter on the basis of the evidence on record. In the present case, the learned Magistrate has passed on, order of discharge. It is really an order of acquittal passed without giving any reasons.

10. I may now refer to the various decisions which have been cited before me. In the case of Sadik Mohammad Ahmad Hasan v. Jyotish Chandra Pandit : AIR1948Cal83 the complaint was under Section 504 of the Indian Penile Code and after the charge was framed and the case was posted for cross-examination of witnesses of the prosecution, the complainant was absent as also no witnesses were present on that day. The learned Magistrate passed an order under Section 253 of the Code of Criminal Procedure, 1898, (i.e. Section 247 read with Section 243 of the Code of Criminal Procedure, 1973) discharging the accused. It was held;

The proper order that the Magistrate should have passed in such a case was that 'as the prosecution witnesses are absent and cannot be cross-examined their evidence in examination -in-chief should lie expunged and as there is no evidence in the case the accused is acquitted.

The Allahabad High Court in the case of Naza Hussain v. Emperor (1935) 36 Cr. L.J. 912, was considering a case where a Magistrate was succeeded by another Magistrate and the latter Magistrate upon re-examining the complainant discharged the accused under Section 253 of the Code of Criminal Procedure, 1898. The Sessions Court in revision held that the dismissal of the case was unjustifiable and set aside the order discharging the accused and remanded the case to the Magistrate for further inquiry. It was held that the learned Sessions Judge had no jurisdiction to order a further inquiry on the ground that when a charge has once been framed under Section 254 it must be followed either by an acquittal or a conviction. It was observed (at p. 913):.the Magistrate in this ease proceeded on the basis of the charge already drawn and acquitted the present applicants and did not, as is urged on behalf of the opposite party, merely discharge them.

A Division Bench of the Madras High Court in Tanguturi Sriramulu v. Nalam Krishna Row A.I.R. [1915] Mad. 23, has taken the view that the Magistrate who recommences an inquiry or trial under Section 350 does not thereby modify its nature or the stage at which it has arrived. Therefore, once a charge is framed and trial begun, the charge cannot be cancelled by reason of recommencement of the trial under Section 350, and the only order which the second Magistrate can pass is that of acquittal under Section 258, and not that of discharge under Section 253(2), Criminal Procedure Code. This decision is altogether on a different footing and does not apply to the facts of this case.

11. The Tripura High Court has in the case of Aswini Kumar Bhowmick v. Dwijen Dey A.I.R. [1966] Trip 20, held:

In a warrant case after a charge is framed the complainant will be out of the picture and it is the duty of the Court to secure such of the witnesses for the prosecution as required by the accused for further cross-examination. Under such circumstances, no duty is cast upon the complainant to secure the witnesses for the prosecution unless he had undertaken to produce them.

The proper procedure to be adopted by a Magistrate under such circumstances is to make an effort to secure the attendance of the witnesses, if so required by issue of coercive process. It is illegal to acquit the accused on account of the absence of the complainant as that procedure in such cases is not contemplated under steps 250 of the Criminal Procedure Code or on account of the absence of the prosecution witnesses without taking adequate steps to secure their attendance.

12. The case was, therefore, remanded for retrial.

13. I may now refer to the two decisions of this Court. In Ganesh Narayan Dangre v. Eknath Hari Jhampe, (supra) a complaint under Sections 423 and 465 of the Indian Penal Code was tried by the Magistrate as a warrant case from its inception. During the trial the complainant died and her husband filed a purshis intimating that fact. The Magistrate thereupon discharged the accused though the complaint made out a prima facie case. In revision Kambli J. held:

That though in absence of statement by the husband to that effect the Magistrate might have bona fide felt that he did not want to proceed with the case, the fact remained that he did not want to proceed; that as in view of the gravity of charge it was not proper to discharge the accused, this was case for interference even in exercise of inherent powers.

It was observed by Kambli J. as follows (p. 391 para. 13):

Now, as in indicated above, the discretion granted by Section 249 of the Code is the judicious discretion. Whether the accused should be discharged or not has to be decided upon consideration of various circumstances, including the gravity of the offence. The Magistrate is not to make an order of discharge automatically in case of absence of the complainant. He has to take into consideration the facts and circumstances governing the case.

That case could be distinguished from the facts of this case in that in that case the discharge of the accused was before the charge as framed and, therefore, the observations would not apply to the facts of this case.

14. In Sagunabai Lahanu Shende v. Patru Coma Lengure (supra), a charge was framed under Section 323 and Section 354 read with Section 109 of the Indian Penal Code and the case was tried as a warrant case and after the charge was framed, the case was fixed for evidence after charge and on the date fixed for evidence neither the complainant nor the Advocate nor his witnesses were present and the learned Magistrate dismissed the case for want of prosecution and it was held by V. V. Joshi J. that it was not correct for the learned Magistrate to dismiss the case for want of prosecution merely because the complainant and his advocate were absent and in support of this view V. V. Joshi J. relied upon the decision of the Punjab High Court in the case of Bunta Singh v. Gurbux Singh [1967] Cr. L. J. 1447. In that case it was held that once the trial is commenced as the trial of a warrant case, it is not permissible to invoke the provisions of Section 247 of the Code of Criminal Procedure if the complainant is absent and dismiss the complaint for default.

15. The Pepsu High Court in the case of Parsa v. Mst. Parsini A.I.R. [1954] Pepsu 80, observed:

Where in a private complaint the complainant was asked to produce certain witnesses for cross-examination after the charge but on the appointed date, none including complainant was present and the Magistrate dismissing the case for default or appearance by the complainant, discharged the accused.

It was held by the Pepsu High Court that (at page 80):

The term 'dismissed for default' was unknown to the Code of Criminal Procedure and that no criminal case could be dismissed for default of appearance of any party or witness.

16. The authorities cited above undoubtedly show that in a trial of a case as a warrant case the Magistrate has no power to dismiss the case for default and to discharge the accused. It appears from the provisions of Chapter XI of the Code of Criminal Procedure, 1973, that it is incumbent upon the learned Magistrate to apply his mind to the facts and circumstances of the case and then come to a conclusion whether he should acquit the accused or convict him. If for any reason the complainant or any of the witnesses are absent, it is competent for the Magistrate to consider the case on its merits on the evidence that is already before the Court and then to pass an order; but it is not competent for the Court to dismiss the case for default and to discharge the accused. This seems to be the consistent view taken by the different High Courts of which decisions have been referred to above.

17. The question for consideration in the present case is as to whether the learned Magistrate had passed an order of discharge or whether he intended to pass an order of acquittal. It appears from the order which has been reproduced above by the learned Magistrate that what the learned Magistrate intended to do was to pass an order of acquittal.

18. In any case in considering whether the matter should be remanded) to the trial Court for further trial, it would not be out of place to consider the provisions of Section 482 which saves inherent powers of this Court. In, considering the provisions of Section 482, a Division Bench of this Court has in the case of Chhatru Shobraj Taleraj v. State of Maharashtra [1978] Mah. L. J. 817 , observed (at p. 819 and 820):

As far as the provisions of Section 482 of tile Code of Criminal Procedure are concerned, it is well settled that it does not confer any new power nor adds to the powers which are in the very nature of things organic and as such available to a Court of justice. See Emperor v. Khawaja Nazir Ahmed (1944) 47 Bom. L.R. 245 P. C.. The State of Uttar Pradesh v, Mohammad Naine : [1964]2SCR363 , A.H. Satranjiwala v. The State of Maharashtra [1973] Mah. L.J. 18 (1970) 74 Bom. L. R. 742, Bombay Cycle & Motor Agency Ltd. v. Bhagwanprasad Ramragubir Pattdey : (1974)76BOMLR612 , and The Public Prosecutor, Andhra Pradesh v. Devireddi Nagi Reddi I. L.R. (1963) A.P. 144. The concept of inherent power of the Court cannot be conceived as divorced from its constitution. In law it is organic as opposed to super-imposed; as one necessary for effective functioning as opposed to mere addition thereof. The provisions of this section are declaratory and are to be exercised as the section itself indicated by the High Court as and when occasion arises so as to make such orders necessary to give effect to any order of the Court made in accordance with the Code of Criminal procedure or to prevent the abuse of the process of any Court or otherwise to meet the ends of justice.

The inherent powers have to be exercised in a given case to secure the ends of justice and I consider this to be an eminently a fit case where I should exercise the inherent powers and consider the facts and circumstances of this case whether at this stage the matter should be remanded for further trial. The allegation in this case is that the petitioner-accused committed criminal breach of trust of a paltry amount of Rs. 292,50 between June and August 1963. For nearly 13 years thereafter the complainant did not feel aggrieved by the alleged defalcation and it was only on July 6, 1974 that the complainant thought it fit to file the present complaint nearly after 11 years. This case has dragged on from 1976, i.e., for the last nearly five years. For a paltry amount of alleged defalcation committed some 11 years, ago before the complaint was filed, the petitioner-accused has been required to go through the mental tension and agony for the last five years. It appears to me that something else has happened which has prompted complaint to be filed after 11 years and does not appear to be a bona fide complaint by reason of the lag of time. The petitioner was required to expend for engaging an Advocate in the trial Court and in two different Courts for proceeding after the order of discharge. I feel that the petitioner has undergone sufficient punishment for the alleged defalcation and considering the very paltry amount, I do not think that the petitioner should be made to suffer any further. I, therefore, feel that the order of discharge on the facts and circumstances of the case should be read as an order of acquittal.

19. I, therefore, pass the following order:

20. Rule absolute. Order dated February 4, 1980 of the Additional Sessions Judge, Sangli, set aside. Accused acquitted. Bail bond cancelled.


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