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Om Prakash Santuka Vs. Champalal Sethia and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Appeal No. 190 of 1981
Judge
Reported in1986(I)OLR48
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 256, 256(A), 313 and 378
AppellantOm Prakash Santuka
RespondentChampalal Sethia and anr.
Appellant AdvocateB. Panda and G. Tripathy
Respondent AdvocateSunakar Jena, Subaraj Jena and B. Routray
DispositionApplication dismissed
Cases Referred(Nidhi Jena v. Jaladhar Jena
Excerpt:
.....rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - if the main ground on which the acquittal is based is reasonable and plausible and cannot entirely and effectively be dislodged or demolished, the high court should not disturb the acquittal. when the learned subdivisional judicial magistrate took up the application, he endorsed the same to the transferee court. the presiding offers of courts are required to work for the full time for the day and are not expected to start the work late or rise early unless exceptional circumstance interferes with the normal requirement......of illness which also indicated the reason for absence of the witnesses and acquittal of the accused in absence of the complainant was not approved in 58(1984) clt 396 (satyanarayan mohapatra v. prafulla kumar patnaik and three ors.). in appeal, subsequent facts after the order of acqoittal as revealed from the records were considered in 30(1970) c l t 271 (jadumani das v. govind biswal), 1975 c. l. r. (cr,) 485 (nora dei v. dama naik and ors.) and 1984 (1) o. l. r. 69 (supra) to determine the correctness of the order of acquittal. there are two decisions of this court in which petitions for adjournment were fined in wrong court.10. in 57(1984) c l t 568 (nidhi jena v. jaladhar jena) the complainant had no notice of the transfer of the case by the sub-divisional judicial magistrate.....
Judgment:

S.C. Mohapatra, J.

1. Complainant, a monthly tenant in respect of a house in Cuttack town under the accused persons, is the appellant against an order of acquittal under Section 256, Criminal Procedure Code.

2. On the basis of the complaint dated 10-4-1981, cognisance was taken for offences under Sections. 323 and 504, I. P. C., and the accused persons were summoned to face the trial, They entered appearance on 22 5.1981 and were released on bail. The case was posted to 30-6-1981 for hearing. On 30-6-1981, the learned Chief Judicial Magistrate passed the following order :

'Accused is represented through their R/L. Complainant filed hazira. Call on 28-7-1981 for hearing. Case is transferred to the file of Shri P. C. Misra, M. F. C. for disposal A/L. Accused as before.'

The case record was received on transfer in the Court of Shri P. C. Misra on 1-7-1981 and was directed to be put up on the date fixed.

3. On 28-7-1981 when the case was taken up, the complainant being absent the following order was passed :

'Accused persons present and represented. No. P. W. complainant is absent on calls. Again call at 2 p.m.'

The learned Magistrate waited for the complainant till the last hour of the Court and had to pass the following order :

'Later-4 p. m. Complainant is absent on repeated calls. No steps are taken on his behalf. Therefore, the accused persons are acquitted under Section 256, Cr. P. C.'

It is revealed from the order dated 29-7-1981 that a petition for recalling the order dated 28-7-1981 acquitting the accused persons was filed on the ground that the complainant being ill, a petition for adjournment was filed, but on account of the mistake of the Advocates's Clerk, the same was filed in the Court of Shri A. K. Senapati, judicial Magistrate, First Class, Cuttack. The petition for adjournment in original was enclosed to the petition dated 29-7-1981 in support of the assertion. The learned Magistrate Rejected the petition finding no merit in it. The order reads as follows :

'7. 29-7-1981. A petition along with the petition for time dated 28.7.1981 filed in the Court of Shri A. K. Senapati, J. M. F. C, Cuttack, is filed to recall the order dated 28-7-1981. Heard the Advocate for the complainant. The petitions having no merit is rejected.'

The order of acquittal dated 28-7-1981 is assailed in this appeal.

4. In appeal against acquittal whether after considering the merits or under Section 256, Criminal Procedure Code, High Court can interfere only where miscarriage of justice has resulted on account of manifest error of law or fact. If the main ground on which the acquittal is based is reasonable and plausible and cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the acquittal.

5. The grounds of acquittal in the impugned order are the absence of the complainant or his witnesses when the accused persons were present and no steps were taken by the complainant in spite of the trial Court giving sufficient opportunity from the early hour of the day till the last hour. It is therefore, to be examined whether the impugned order suffers from manifest error of law or fact resulting in miscarriage of justice.

6. The power under Section 256, Cr. P. C., to acquit the accused can be exercised only when the complainant is absent on the date fixed for appearance of the accused or for hearing. Order of acquittal on a date which was neither for appearance of the accused nor for hearing, being without jurisdiction is a nullity and the trying Magistrate can recall the said order, [See ILR 1962 Cutt. 547 (Brundaban Bastia v. Birabar Bastia), 33 (1967) C. L. T. 1061 (Judhistir @ Jujesti Sahu and seven Ors. v. Padmalochan Sahu) and 30 (1970) C. L. T. 529 (Lakhiram Pansari v. Narasingh Misra)] Even on a date fixed for appearance of the accused or for hearing, where a complaint has been filed in official capacity, the acquittal on account of the absence of the complainant is not to be given undue importance. [See 26 (I960) C. L. T. 658 (State v. M. V. Apparao) 29(1963) C. L. T. 657 (State v. Birendra Kumar Sahu) and I. L. R. 19 6 Cutt. 317 (Jagannath Sahu v. State and Ors.).]

7. Wide discretion is vested with the trying Magistrate where the complainant is absent in a summons case on the date of hearing either :

(i) to proceed to hear the case if the complainant is represented by an Advocate ; or

(ii) to adjourn the case ; or

(iii) to acquit the accused.

See 1984 (I) OLR 69 (Chandra Pati v. Badi Gigiria and Ors.), 53(1982) C. L. T. 71 (Nityananda Samal v. Nara Prasad @ Narottam Singh) and Criminal Appeal No. 7 of 1980 decided on 27-1-1983 (Sankar Sethi v. Deva Prasad Mohapatra and Ors.) wider the discretion, the greater is the responsibility of exercising the same and in all such cases the crying Magistrate has a duty to exercise the discretion judiciously. Care and caution gives rise to inference of reasonableness of the Magistrate and his exercise of the power judiciously. Each case has to be examined in its own context to determine if the Magistrate has exercised the discretion properly. See I. L. R. 1968 Cutt. 149 (Shyamsundar Sahu v, Saroj Kumar Ghose) and 53 (1982) C. L. T. 71 (supra). Hasty or arbitrary action would be antithesis of reasonableness. Absence of reason in the order winks at improper exercise of power. In the absence of specific reasons in the order, in some cases subsequent conduct of the complainant has been taken into consideration by the High Court to find out whether the trial Court exercised the descretion properly. Conduct anterior and subsequent and on the date fixed for hearing when the order of acquittal was passed, real necessity for the presence of the complainant for progress of the trial are some of the considerations which weighed with this Court in the past in the facts and circumstances of each case to interfere with the orders of acquittal. The duty of the trial Court in the absence of a complainant has been expressed in ILR 1968 Cutt. 149 (supra), 30 (1970) CLT 204 (Sanatan Sahu v. Sagari Dei), 30 (1970) CLT 271 (Jadumani Das v. Govind Biswal and 7 Ors.) and in 53(1982) CLT 71 (supra).

8. A complainant may remain absent at various stages:

(a) at the time of argument; or

(b) after examination of the accused under Section 313 Cr, P. C, is over; or

(c) when some of the witnesses for complainant have been examined; or

(d) when the complainant has already been examined as a witness; or

(e) when the accused or soma of the accused are absent and the hearing cannot be taken up; or(f) when the hearing of the case has not commenced after appearance of the accused.

In respect of the cases classified in (a) to (e) this Court has held that the presence of the complainant was not necessary. See 38(1972) C. L. T. 840 (State v. Jagatram Sahn and Anr.), 24(1958) C. L. T. 389 (Narendranath Mohanty v. Anirudhanath Mohanty), 41(1975) C. L. T. 1155 (Dwijendranath Dutta v. Sirla Jena and 4 Ors.), 26 (1960) CLT 602 (Khagendranath Naik v. Nila Bhol and 2 Ors.) and 1972 (1) C. W. R. 261 (Satrughna Padhan v. Chlintamani Tiwari and Ors.). These cases may not be directly applicable to the present situation.

9. This present appeal involves a case of the last category. Even in this category, acquittal in the first hour of the Court was depricated in C. L. R. 1968 Cut. 159 {supra) being treated as a hasty action. In 30(1370) C. L. T. 204 (supra) non-consideration of the application for adjournment supported by medical certificate before passing the order of acquittal was treated to be injudicious. Rejection of application for adjournment on the ground of illness which also indicated the reason for absence of the witnesses and acquittal of the accused in absence of the complainant was not approved in 58(1984) CLT 396 (Satyanarayan Mohapatra v. Prafulla Kumar Patnaik and three Ors.). In appeal, subsequent facts after the order of acqoittal as revealed from the records were considered in 30(1970) C L T 271 (Jadumani Das v. Govind Biswal), 1975 C. L. R. (Cr,) 485 (Nora Dei v. Dama Naik and Ors.) and 1984 (1) O. L. R. 69 (supra) to determine the correctness of the order of acquittal. There are two decisions of this Court in which petitions for adjournment were fined in wrong Court.

10. In 57(1984) C L T 568 (Nidhi Jena v. Jaladhar Jena) the complainant had no notice of the transfer of the case by the Sub-divisional Judicial Magistrate as the order was passed later fixing the date of hearing that day. On the date fixed complainant filed an application for adjournment in the Court of the Subdivisional Judicial Magistrate and waited for orders. In the meantime, the order of acquittal was passed by th.2 transferee Court. When the learned Subdivisional Judicial Magistrate took up the application, he endorsed the same to the transferee Court. The complainant rushed to the transferee Court to move the same to find that the order of acquittal had already been passed. Taking into consideration these facts this Court interfered with the order since the transferee Court did not take into consideration the fact that it was the first date of hearing and the complainant had no notice of the transfer of the same to it which was clear on the face of the order.

In 1975 C. L. R. (Criminal) 485 (supra), strongly relied upon by Mr. Panda, the learned counsel for the appellant, the case was in the Court of Subdivisional Judicial Magistrate. By mistake, the application for adjournment was filed in another Court. As no steps were taken in the Court of the Subdivisional Judicial Magistrate, the order of acquittal was passed at 4 30 p. m. for absence of the complainant Immediately thereafter, a fresh complaint was filed in the Court of the Subdivisional Judicial Magistrate explaining the circumstances. In those circumstances, this Court set abide the order. There being no discussion in the reported decision as to how the Subdivisional Judicial Magistrate exercised the discretion improperly, it has no binding effect and is to be confined to the facts of that case only.

From the discussions made above, the following conclusion follows;

i) It is the duty of the Magistrate to act judicially.

ii) Before passing the order of acquittal, he is to determine if the presence of the complainant is necessary for bearing of the case that day.

iii) In case it is necessary, he is to examine whether ends of justice demand the adjournment of the case for absence of the complainant.

11. It is to be remembered that the delay in disposal of cases has reached a stage that a feeling is gradually creeping in that the few is not able to cater to the need of the present day community, The Court best serve the law which recognises that the rule of law which grew up in remote generation, may, in the fullness of experience, be found to serve another generation badly and which discard? the old rule when it finds that another rule of law represents what should be according to the established' and settled judgment of the society. It is not and should not be stationary. Change of this character should not be left to the legislature and the existing law should be, interpreted in a manner to cater to the present day need. This would be easy where the decision depends upon facts and circumstances of a case.

12. In the present case, the complainant had knowledge that the case was in the Court of Shri P. C. Misra. The learned Magistrate waited till 2 p. m. for appearance of the complainant which indicates chat he did not act hastily. Even at 2 p. m. he did not take up the case and waited till 4 p. m. He could have taken up the case in absence of the complainant if the witnesses would have been present since the complainant was represented by a counsel. No witness was present. The offence is alleged to have been committed in Cuttack town. The three witnesses named in the complaint petition were of Cuttack town. The complainant had time for twenty eight days to summon the witnesses through Court prior to 28-7-1981. He preferred not to take the assistance of the Court to summon the witnesses. Even if there was a mistake committed by the Advocate's Clerk in filing the petition for adjournment in a wrong Court, the learned counsel for the complainant could have ascertained the result of the petition for adjournment in the Court of Sri P. C. Misra as he had no knowledge of the mistake. The Presiding Offers of Courts are required to work for the full time for the day and are not expected to start the work late or rise early unless exceptional circumstance interferes with the normal requirement. The General Rules and Circular Orders (Criminal) Volume-I (1977 Edition) of this Court provide that when day sittings are held, the Courts shall ordinarily commence the sittings not later than 11 a. m. and rise at 4 p. m. With this rule in force when the learned Magistrate was anxious to hear the case to meet the present day demand for early disposal and did not act hastily, it cannot be said that he exercised his discretion improperly or illegally, I am not able to find any reason how the learned Magistrate anxious to hear a case, could have justifiably adjourned it when the accused was ready to face the trial that day. The casual manner in which the litigation was being conducted is clear from not taking steps to summon the witnesses for attending the Court, asking for a month's adjournment in the petition for adjournment for having suffered from fever and his learned Counsel not being vigilant about the result of the application for adjournment.

13. In the result, the appeal has no merit and it stands dismissed.


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