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Santhosh and ors. Vs. State of Kerala and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1985CriLJ756
AppellantSanthosh and ors.
RespondentState of Kerala and anr.
Excerpt:
- - was present the magistrate can very well dispense with the presence of the complainant. it is only if all these conditions are satisfied, the aggrieved party could seek relief under that section......sitting on the public road at pazhangad bazar, edayanakkad and thereby caused annoyance to the public. accused 1 and 3 to 6 in s.t. 125 of 1983 are the petitioners in crl. m.c. 190 of 1983 and accused 3 to 6 in s.t. 126 of 1983 are the petitioners in cri.m.c. 188 of 1983.3. i shall consider the various grounds on which the proceedings are sought to be quashed. the magistrate issued summons under section 204 of the criminal p.c. instead of issuing summons under section 206. this is said to be a serious irregularity vitiating the proceedings. the offence alleged is under section 290 of the penal code. maximum punishment is only a fine of rs. 200/-. both are private complaints coming under section 190(1)(a) of the criminal p.c. it is a petty offence which is non-cognizable. procedure to.....
Judgment:
ORDER

S. Padmanabhan, J.

1. The Sub Inspector of Police, Narakkal in his official capacity filed two complaints before the Judicial First Class Magistrate, Parur against six persons each for an offence punishable Under Section 290 of the Indian Penal Code. They were petty cases Nos. 23 and 24 of 1983. The Magistrate took them to file as S.T. Nos. 125 and 126 of 1983. The present petitioners are invoking the inherent powers of this Court Under Section 482 of the Criminal P.C. for quashing the proceedings in the above two cases. Cri.M.C. 190 of 1983 relates to S.T. 125 of 1983 and Crl.M.C. 188/1983 relates to S.T. 126 of 1983.

2. In both the cases the allegations revealed from the complaint as summarised in the petitions are that on the evening of 14-1-1983 the respective accused persons played cards and made noise sitting on the public road at Pazhangad Bazar, Edayanakkad and thereby caused annoyance to the public. Accused 1 and 3 to 6 in S.T. 125 of 1983 are the petitioners in Crl. M.C. 190 of 1983 and accused 3 to 6 in S.T. 126 of 1983 are the petitioners in Cri.M.C. 188 of 1983.

3. I shall consider the various grounds on which the proceedings are sought to be quashed. The Magistrate issued summons Under Section 204 of the Criminal P.C. instead of issuing summons Under Section 206. This is said to be a serious irregularity vitiating the proceedings. The offence alleged is Under Section 290 of the Penal Code. Maximum punishment is only a fine of Rs. 200/-. Both are private complaints coming Under Section 190(1)(a) of the Criminal P.C. It is a petty offence which is non-cognizable. Procedure to be followed is that of a summons case. The Magistrate took cognizance of the cases and issued summons Under Section 204(1)(a) of the Criminal P.C. For issuing summons in cases of petty offences there is a procedure Under Section 206 of the Criminal P.C. to issue special summons. These are cases which could be summarily tried Under Section 260 of the Criminal P.C. Even Under Section 260, the First Class Magistrate is having the discretion to decide whether the case has to be tried summarily or not. He need adopt the summary procedure only if he thinks fit to do so in the circumstances of the case. Under Section 206 of the Criminal P.C. also the Magistrate taking cognizance of the offence is having the discretion to decide whether the case has to be tried summarily or not. If only he decides to try the case summarily, he need issue special summons Under Section 206 giving the option to the accused in the summons to plead guilty without appearing before the court. Only in case such a summons is issued, the punishment need be specified in the summons in order to afford the accused an opportunity, if he desires to plead guilty, to do so and pay off fine without taking the trouble of appearing before court. In case the Magistrate decides to try the case summarily alone, he need record reasons in writing, if special summons, as contemplated by Section 206, is not issued. It is true that the provision for issuing special summons Under Section 206 of the Criminal P.C was enacted with a view to protect the persons guilty of minor infractions from the harassment of appearing before courts. There may be petty offences in which summary trial may not be desirable. When the Magistrate is having the discretion, exercise of that discretion, unless shown to be illegal or having resulted in prejudice, cannot be said to have vitiated the proceedings. These are cases in which the accused-petitioners did not plead guilty. In fact they pleaded not guilty and claimed to be tried. Therefore, at any rate, there cannot be any question of prejudice in not issuing special summons. It goes without saying that there is no illegality also. Therefore, this ground is not available for invoking the inherent jurisdiction to quash the proceedings.

4. The next attack was that when the complainant did not appear on the first day posted for hearing, the Magistrate has not chosen to acquit the accused Under Section 256(1) of the Criminal P.C. Section 256 of the Criminal P.C. reads thus :

256. Non-appearance or death of complainant-- (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, not withstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day :

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.(2) The provisions of Sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.

5. The words used in Section 256(1) are 'on the appointed day' and 'any day subsequent thereto.' There are certain decisions which go to the extent of saying that the complainant need appear only at any time during the day and the court cannot acquit the accused simply for the reason that complainant was not present when the case was called for hearing. That is an extreme view which, if accepted, may make it incumbent on the court to wait for the appearance of the complainant till the end of the day. That means the court may have to wait for the convenience of the complainant. Such an extreme situation might not have been contemplated by the legislature. But there may be various reasons which prevent the complainant from appearing in time in spite of vigilance on his part. Courts are existing for the purpose of advancing justice and not for denying it. Acquittal of the accused for the simple reason that the complainant came a little late may not be what was intended by the legislature. Every person approaching the court is presumed to do so for vindication of justice. The approach of the court must be to advance that purpose and not to defeat it on technical grounds. There may not be anything wrong in waiting for the arrival of the complainant for a reasonable time especially when the court's work is not thereby affected. The purpose is not to allow the cases to go by default, for statistical purposes. There may be cases where the complainant who is present in court might not have heard the case being called. So also he might have left the premises for a short while for personal reasons thinking that the case may not be taken up immediately. If for the simple reason that the complainant was not present when the case was called on for the first time, the accused is acquitted, it may result in injustice at least in some cases. Such contingencies will have to be avoided.

6. The word used in the section is 'shall' and it could be said that the Magistrate has no option but to acquit the accused. But Section 256(1) itself gives ample discretion to the court in this respect. It is provided in the section 'unless for some reason he thinks it proper to adjourn the hearing of the case to some other day'. This discretion is given for the advancement of justice. 'Some reason he thinks it' is not something which the Magistrate has to record in each case with supporting reasons. Mere adjournment of the case itself may be indicative of the fact even in the absence of the complainant the Magistrate considered that for some reason that the case had to be adjourned. That discretion cannot be ordinarily subject to challenge except for valid reasons. In a case coming Under Section 256(1) of the Criminal P.C, the Magistrate has three options in the absence of the complainant. He can acquit the accused or adjourn the case or dispense with the presence of the complainant and proceed with the case. He has ample discretion to adopt any one of the courses which he deems fit in the circumstances.

7. The cases in hand are complaints filed by the Sub Inspector of Police in his official capacity. The Public Prosecutor says that the Asst. Public Prosecutor was there to conduct the prosecution on behalf of the S.I. of Police. The proviso to Sub-section (1) of Section 256 says that when the complainant is represented by a pleader or by the officer conducting prosecution or when the Magistrate feels that the personal attendance of the complainant is not necessary, he can dispense with his attendance. A Sub Inspector of Police is having other official duties also. He cannot be expected to be present in court always except when his presence is necessary. In his absence, the court is definitely having the discretion to adjourn the case even on a date when his presence was necessary. So far as these particular cases are concerned on the particular day the appearance of the complainant was not at all required for any purpose. It is true that the presence of the A.P.P. was not noted by the Magistrate as a reason for adjournment of the case in the absence of the complainant. It is not necessary that the Magistrate should note the presence of the A.P.P. in all the cases as a ground for adjournment. If the A.P.P. was present the Magistrate can very well dispense with the presence of the complainant. Absence of the complainant cannot invest the accused with any right to get an acquittal. That cannot operate as a ground for invoking the inherent jurisdiction of the court to quash the proceedings as illegal.

8. The third ground is that there are six accused in each cases and they are charged together in each case without the aid of Section 34 or 149 of the I.P.C. The argument was that in the absence of common intention or common object of an unlawful assembly having alleged in the complaint, the S.I. could have filed only separate complaints against each individual offender. Section 34 of the IPC embodies the principle that if two or more persons intend to do a thing jointly, it is the same as each of them having done it individually. Vicarious or notional liability is east on the persons who have not actually done the acts only because of the common intention on the basis of prior meeting of minds in furtherance of which the acts were done. In each and every case in which several persons are involved in a crime committed in the course of the same transaction, in the absence of common intention, each of the offenders will be liable only for his individual acts and not for the acts of others. That does not mean that all persons who participated in the commission of crime cannot be charged together without the aid of common intention. In these cases, the allegation in the complaint, as narrated in the petitions, is that all the accused together played cards sitting on the road and made noise, thereby causing annoyance to the public. The allegation appears to be that each one of the accused committed the offence individually in the course of the same transaction resulting in annoyance to the public. I do not think that these are cases where the complaints are defective for the reasons alleged. So also, for charging several persons together for offences committed in the course of the same transaction, it is not necessary that there should be allegation of unlawful assembly or common object. My opinion is that the complaints are proper. Separate complaints against each individual offender was unnecessary.

9. The last contention is that the allegations in the complaint do not constitute the offences alleged. Copies of the complaints were not produced. Therefore, I am not in a position to understand what exactly are the allegations. When the original complaint or at least a copy of the same being not produced, it may not be correct to enter a finding in that respect and quash the complaints exercising the inherent powers Under Section 482. It is an admitted fact that the complaints are for offences punishable Under Section 290 of the I.P.C. That section deals with punishment for public nuisance in cases not otherwise provided for. It deals with public nuisance coming under the four corners of the definition in Section 268 of the IPC but not punishable under any other sections. Those specific sections are Sections 269 - 289 and 291 - 294 (a).

10. Section 268 of the Penal Code reads thus :

268. Public nuisance -- A person is guilty of a public nuisance, who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.

A common nuisance is not excused on the ground that it causes some convenience or advantage.

The offence involves any act or illegal omission causing common injury, danger or annoyance to the public. Such ingredients against the people in general who reside or occupy property in the vicinity is also sufficient to make out an offence. It is also sufficient if the acts must necessarily cause injury, obstruction, danger or annoyance to person who may have occasion to use any public right.

11. The gist of the complaint, as extracted in the petitions, is that the accused sat on the public road, played cards there, made noise and caused annoyance to the public. If these facts were done sitting on the public road, which is intended for vehicles and persons to pass, it cannot be said that obstruction and annoyance to the public were not the results. Gambling in a public place is definitely public nuisance. It is not known what is alleged if the complaint is gambling on the public road. Sitting together on the public road could cause obstruction and annoyance to the public. That may also be the result if noise was made in a public place. With the available materials, 1 am not in a position to find that an offence as defined Under Section 268 of the IPC is not disclosed. If so, on this ground also the petitioners cannot claim that the complaints are to be quashed.

12. It appears that the provisions of Section 482 of the Criminal P.C. which is intended to save the inherent powers of the High Court to make orders for giving effect to any order or to prevent abuse of process of the court or otherwise to secure the ends of justice is now a days often being misused. In order to seek shelter under the provisions of the section the injustice must be grave and not trivial. It should be clear and not doubtful. There should not be any other provisions of law under which the aggrieved party could have sought relief. It is only if all these conditions are satisfied, the aggrieved party could seek relief under that section. Almost all the contentions raised in these petitions filed Under Section 482 of the Criminal P.C, could have been raised by the petitioners during trial before the court in which the cases are pending. They could have claimed appropriate reliefs from the trial court itself. The provision is intended to enable the court by saving its inherent existing power to do real and substantial justice for which the courts exist or to prevent abuses. It is a pity that even for trifles the inherent power is sought to be used. To me it appears that these two petitions are instances of such misuse. I am of opinion that the petitions are abuses of process of court.

13. Both the petitions are dismissed.


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