Gujarat High Court
Govindkumar Kantibhai Patel vs State Of Gujarat on 23 March, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/938/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 938 of 2018
==========================================================
GOVINDKUMAR KANTIBHAI PATEL
Versus
STATE OF GUJARAT
==========================================================
Appearance:
KUMAR H TRIVEDI(9364) for the PETITIONER(s) No. 1
NOTICE SERVED(4) for the RESPONDENT(s) No. 2
MS MOXA THAKKAR, APP (2) for the RESPONDENT(s) No. 1
RULE NOT RECD BACK(63) for the RESPONDENT(s) No. 2
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 23/03/2018
ORAL ORDER
1. The respondent No.2 - original complainant, although served with the notice issued by this Court, yet has chosen not to remain present before this Court either in person or through an advocate and oppose this application.
2. By this application under Article 227 of the Constitution of India, the applicant - original complainant calls in question the legality and validity of the order dated 15.09.2017 passed by the learned Sessions Judge, Sabarkantha at Himmatnagar in the Criminal Revision Application No.28/2017.
3. The facts giving rise to this application may be Page 1 of 18 R/SCR.A/938/2018 ORDER summarized as under:
3.1 The applicant herein filed a private complaint against the respondent No.2 herein in the Court of the Chief Judicial Magistrate, Himmatnagar, for the offence punishable under Section 138 of the Negotiable Instruments Act. The complaint came to be registered as the Criminal Case No. 3237 of 2011.
It appears that for some reason or the other, the summons issued by the Court below could not be served upon the accused for quite a period of time. Ultimately, the learned 3rd Additional Chief Judicial Magistrate, Himmatnagar, by his order dated 24.05.2017, dismissed the complaint for non-
prosecution. The order passed by the Court below, which is impugned in this application, is extracted hereunder:
"Complaint and record have been taken into consideration. In the present case, the complainant has filed the present complaint u/s. 138 of Negotiable Instrument Act. Considering the record of the present case, it appears that, the present case is pending for service of process upon the accused since 19/01/2015, that is, 2.5 years. That, the prosecution has failed to make the accused remain present. Further, Page 2 of 18 R/SCR.A/938/2018 ORDER in spite of issuance of process frequently, the accused has not been found. Whereas, the complainant also does not remain present or it does not appear that, any attempt has been made to make the accused appear before the Court. As the present case is summons triable private complaint, it is the responsibility of the complainant to see that the process is served upon the accused and attempts should be made to make the accused remain present before the court. Despite that, it appears that the complainant has not made any such efforts and therefore, the present complaint is pending for 2.5 years without any progress in that regard. Under such circumstances, as it appears that the prosecution of the present case is no longer interested in further proceedings of this case by making the accused remain present before the Court, it is ordered to dismiss the present complaint."
4. Being dissatisfied with the order passed by the Court below, referred to above, the applicant preferred a Criminal Revision Application before the Sessions Court. The revision Page 3 of 18 R/SCR.A/938/2018 ORDER application came to be rejected by the Court concerned, thereby affirming the order passed by the trial Court.
5. Being dissatisfied, the applicant has come up with this application.
3. Section 256 of the Code of Criminal Procedure, reads as under;
(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, notwithstanding 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.
4. Thus, section 256 makes it clear that if the complainant fails to appear, the Page 4 of 18 R/SCR.A/938/2018 ORDER Magistrate shall acquit the accused, unless for some reason, he thinks it proper to adjourn the hearing of the case to some other day.
6. Thus, instead of preferring a Criminal Revision Application, the right legal remedy in law for the applicant herein would have been to file a Criminal Appeal before this Court under Section 378(4) of the Cr.P.C. In the misconception of law, though a revision application is maintainable, the applicant pursued a wrong legal remedy. I could have relegated the applicant to avail of an appropriate statutory remedy. Further, as the accused has also not thought it fit to appear before this Court, although served with the notice issued by this Court, I am inclined to exercise my inherent powers under Section 482 of the Cr.P.C.
6. The question is, whether this Court can exercise its inherent powers under Section 482 of the Cr.P.C. to quash the order passed by the Magistrate dismissing the complaint under Section 256 of the Cr.P.C.
7. This question has been answered by the Supreme Court in the case of Punjab State Warehousing Corp., Faridkot Page 5 of 18 R/SCR.A/938/2018 ORDER vs. Shree Duragji Traders & Ors., 2011 (14) SCC 615, wherein the Supreme Court has taken the view that availability of alternative remedy of filing an appeal is not an absolute bar to entertain an application under section 482 of the Code. I may quote the relevant observations made by the Supreme Court thus:
9. The short question that falls for consideration is whether in the fact situation the High Court was justified in declining to exercise its jurisdiction under Section 482 of the Code?
10. It is trite law that the inherent power of the High Court ought to be exercised to prevent miscarriage of justice or to prevent the abuse of the process of the Court or to otherwise secure the ends of justice. The Court possesses wide discretionary powers under the Section to secure these ends. In this behalf it would be profitable to refer to the decision of this Court in Jeffrey J.
Diermeier & Anr. Vs. State of West Bengal & Anr.4, wherein one of us (D.K.Jain, J.), speaking for the bench, explained the scope and ambit of inherent powers of the High Court under Section 482 of the Code as follows:
"20.The Section itself envisages three circumstances under which the inherent jurisdiction may be exercised, namely,
(i) to give effect to an order under the Code; (ii) to prevent abuse of the process of Court; and (iii) to otherwise secure the ends of justice. Nevertheless, it is neither possible nor desirable to lay down any inflexible rule which would govern the Page 6 of 18 R/SCR.A/938/2018 ORDER exercise of inherent jurisdiction of the Court. Undoubtedly, the power possessed by the High Court under the said provision is very wide but it is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice.
The power exists to prevent abuse of authority and not to produce injustice.
22. In Dinesh Dutt Joshi v. State of Rajasthan [(2001) 8 SCC 570], while dealing with the inherent powers of the High Court, this Court has observed thus (SCC p. 573, para 6):
"6. ...The principle embodied in the section is based upon the maxim: quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest i.e. when the law gives anything to anyone, it gives also all those things without which the thing itself would be unavailable. The section does not confer any new power, but only declares that the High Court possesses inherent powers for the purposes specified in 4 (2010) 6 SCC 243 6 the section. As lacunae are sometimes found in procedural law, the section has been embodied to cover such lacunae wherever they are discovered. The use of extraordinary powers conferred upon the High Court under this section are however required to be reserved, as far as possible, for extraordinary cases."
11. Bearing in mind the afore-stated legal position in regard to the scope and width of the power of the High Court under Section 482 of the Code, we are of the Page 7 of 18 R/SCR.A/938/2018 ORDER opinion that the impugned decision is clearly indefensible. As noted above, the High Court has rejected the petition under Section 482 of the Code on the ground of availability of an alternative remedy without considering the seriousness of the nature of the offences and the fact that the Trial Court had dismissed the complaint on a hyper technical ground viz. since the complainant had been appearing in person, despite order dated 16th April 1999, exempting him from personal appearance, the said exemption order became redundant and the complainant should have sought a fresh exemption from personal appearance. We feel that such a view defies any logic. An order of exemption from personal appearance continues to be in force till it is revoked or recalled.
12 We are convinced that in the instant case, rejection of appellant's petition under Section 482 of the Code has resulted in miscarriage of justice. Availability of an alternative remedy of filing an appeal is not an absolute bar in 7 entertaining a petition under Section 482 of the Code. As aforesaid, one of the circumstances envisaged in the said Section, for exercise of jurisdiction by the High Court is to secure the ends of justice. Undoubtedly, the Trial Court had dismissed the complaint on a technical ground and therefore, interests of justice required the High Court to exercise its jurisdiction to set aside such an order so that the Trial Court could proceed with the trial on merits."
8. Mr. Trivedi has also placed reliance on one decision of the Page 8 of 18 R/SCR.A/938/2018 ORDER Delhi High Court in the case of M/s. J.S. Engineering Works vs. The State & Ors., Crl. M.C. No.1280 of 2014, decided on 1st December, 2014. I may quote the relevant observations as under;
9. The first and foremost question which comes for consideration is whether the dismissal of the complaint by the trial court for non- appearance of the petitioner is justified. At this juncture it is relevant to reproduce Section 256 of Cr.P.C., which reads as under: -
"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 notwithstanding 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."Page 9 of 18
R/SCR.A/938/2018 ORDER
10. On a perusal of the aforesaid provisions of Section 256 of Cr.P.C., it is manifestly clear that the Magistrate has discretionary powers to acquit the accused in the absence of the complainant unless he thinks it fit to adjourn the hearing for another day. Section 256 of Cr.P.C. affords some deterrence against dilatory tactics on the part of the complainant. This section affords protection to an accused against such dilatory tactics of the complainant. But it does not mean that if the complainant is absent the Court is bound to acquit the accused in invitum. If the Court considers that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. If the Magistrate considers that personal appearance of the complainant was required on that day the Magistrate has power to dispense with his attendance and proceed with the case.
11. In S. Anand's case (supra) relied upon by learned counsel for petitioner, it was held that: -
"12. Section 256 of the Code provides for disposal of a complaint in default. It entails in acquittal. But, the question which arises for consideration is as to whether the said provision could have been resorted to in the facts of the case as the witnesses on behalf of the complainant have already been examined.
13. The date was fixed for examining the defence witnesses. The appellant could have examined witnesses, if he wanted to do the same. In that case, the appearance of the complainant was not necessary. It was for her to cross-examine the witnesses examined on behalf of the defence.
Page 10 of 18R/SCR.A/938/2018 ORDER
15. Presence of the complainant or lawyer would have been necessary, as indicated hereinbefore, only for the purpose of cross-examination of the witnesses examined on behalf of the defence. If she did not intend to do so, she would do so at her peril but it cannot be said that her presence was absolutely necessary. Furthermore, when the prosecution has closed its case and the accused has been examined under Section 311 of the Code of Criminal Procedure, the court was required to pass a judgment on merit of the matter."
12. In Associated Cement Company's case (supra) it was held that the purpose of conferring power on the Magistrate under Section 256 of Cr.P.C. is to deter dilatory tactics on the part of the complainant, once he sets in motion criminal proceeding by instituting a complaint. The purpose being that accused is perforce required to attend Court proceedings on dates fixed by the Court and is thus put to harassment if the complainant does not turn up in the Court on dates when his presence is necessary. This provision afforded protection to the accused against such tactics being adopted by the complainant. This, however, does not mean that if the complainant is absent the Court is duty bound to acquit the accused. If the situation mandates the Magistrate has the power to adjourn the hearing. On the other hand, if the Magistrate considers that some personal appearance of the complainant is not necessary it has the power to dispense with his attendance and proceed with the case. It is for the Court to consider whether the presence of the complainant is necessary for the progress of the case on the day when the complainant is absent or the situation is such that the case be adjourned to another Page 11 of 18 R/SCR.A/938/2018 ORDER date. If the situation mandates that there is no reason to adjourn the case, the Magistrate is empowered to dismiss the complaint and acquit the accused.
13. The ratio of aforesaid judgment in Associated Cement Company's case (supra) has been followed by the Apex Court in S. Anand's case (supra) and observed as under: -
"12. Section 256 of the Code provides for disposal of a complaint in default. It entails in acquittal. But, the question which arises for consideration is as to whether the said provision could have been resorted to in the facts of the case as the witnesses on behalf of the complainant have already been examined.
13. The date was fixed for examining the defence witnesses. The appellant could have examined witnesses, if he wanted to do the same. In that case, the appearance of the complainant was not necessary. It was for her to cross-examine the witnesses examined on behalf of the defence.
15. Presence of the complainant or lawyer would have been necessary, as indicated hereinbefore, only for the purpose of cross-examination of the witnesses examined on behalf of the defence. If she did not intend to do so, she would do so at her peril but it cannot be said that her presence was absolutely necessary. Furthermore, when the prosecution has closed its case and the accused has been examined under Section 311 of the Code of Criminal Procedure, the court was required to pass a judgment on merit Page 12 of 18 R/SCR.A/938/2018 ORDER of the matter."
14. In the present case, the complaint was fixed for arguments on application under Section 145(2) of NI Act and the presence of petitioner was not necessary.
15. The second question which comes up for consideration is whether the complainant can file a petition under Section 482 of Cr.P.C. seeking setting aside of dismissal of complaint as the remedy of filing special leave to appeal is available.
16. It is correct that the dismissal of a complaint in a summons case results in acquittal of the accused as envisaged in Section 256 of Cr.P.C. It is also true that the complainant can challenge the order of acquittal by filing an application for special leave to appeal. A similar question came up for consideration before the Apex Court in Punjab State Warehousing Corporation vs. Shree Durga Ji Traders, (2011) 4 SCC 615. In the said case the High Court had dismissed the petition under Section 482 of Cr.P.C. for setting aside of complaint in default and restoration thereof by holding that dismissal in default of complaint amounts to acquittal of accused and statutory remedy exists in Cr.P.C., a petition under Section 482 of Cr.P.C. cannot be entertained. The Honble Supreme Court while considering various judgments passed from time to time observed as under: -
"9. The short question that falls for consideration is whether in the fact situation the High Court was justified in declining to exercise its jurisdiction under Section 482 of the Code?
10. It is trite law that the inherent Page 13 of 18 R/SCR.A/938/2018 ORDER power of the High Court ought to be exercised to prevent miscarriage of justice or to prevent the abuse of the process of the court or to otherwise secure the ends of justice. The Court possesses wide discretionary powers under the section to secure these ends. In this behalf it would be profitable to refer to the decision of this Court in Jeffrey J. Diermeier v. State of W.B. [(2010) 6 SCC 243 :(2010) 2 Crl. M.C. No.1280/2014 Page 8
of 12 SCC (Civ) 656 : (2010) 3 SCC (Cri) 138] wherein one of us (D.K. Jain, J.), speaking for the Bench, explained the scope and ambit of inherent powers of the High Court under Section 482 of the Code as follows: (SCC p. 251, paras 20 & 22)
20. ... The section itself envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court;
and
(iii) to otherwise secure the ends of justice. Nevertheless, it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Undoubtedly, the power possessed by the High Court under the said provision is very wide but is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to Page 14 of 18 R/SCR.A/938/2018 ORDER act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice.
22. In Dinesh Dutt Joshi v. State of Rajasthan [(2001) 8 SCC 570: 2002 SCC (Cri) 24] , while dealing with the inherent powers of the High Court, this Court has observed thus: (SCC p. 573, para 6) 6. ... The principle embodied in the section is based upon the maxim:quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest i.e. when the Crl. M.C. No.1280/2014 Page 9 of 12 law gives anything to anyone, it gives also all those things without which the thing itself would be unavailable. The section does not confer any new power, but only declares that the High Court possesses inherent powers for the purposes specified in the section. As lacunae are sometimes found in procedural law, the section has been embodied to cover such lacunae wherever they are discovered.
The use of extraordinary powers conferred upon the High Court under this section are however required to be reserved, as far as possible, for extraordinary cases.
12. We are convinced that in the instant case, rejection of the appellant's petition under Section 482 of the Code has resulted in miscarriage of justice. Availability of an alternative remedy of filing an appeal is not an absolute bar in entertaining a petition under Section 482 of the Code. As aforesaid, one of Page 15 of 18 R/SCR.A/938/2018 ORDER the circumstances envisaged in the said section, for exercise of jurisdiction by the High Court is to secure the ends of justice.
Undoubtedly, the trial court had dismissed the complaint on a technical ground and therefore, interests of justice required the High Court to exercise its jurisdiction to set aside such an order so that the trial court could proceed with the trial on merits."
17. In Subhash Chand's case (supra) relied upon by learned counsel for respondent, Honble Supreme Court has not considered the question of maintainability of a petition under Section 482 of Cr.P.C. against an order dismissing the complaint in default resulting in acquittal of the accused.
18. In the instant case, the complaint was filed in the year 2011, after recording pre-
summoning evidence and respondent Nos.2 and 3 were summoned. The respondent Nos.2 and 3failed to appear on 07.10.2011 on which bailable warrants were issued against them. Thereafter, respondent Nos.2 and 3 appeared on 24.03.2012. Notice under Section 251 of Cr.P.C. was served on respondent Nos.2 and 3 on 03.04.2013. An application under Section 145(2) of NI Act was filed and the case was adjourned to 03.08.2013 for reply and arguments on the said application. On 03.08.2013 the complaint was transferred and the transferee court adjourned the complaint to 28.09.2013. The petitioner/ complainant did not appear on 28.09.2013 and Court notice was issued to complainant for 07.12.2013. Again the complainant was absent on 07.12.2013 and the complaint was dismissed for non- appearance of the complainant and non-prosecution of the matter. It is not Page 16 of 18 R/SCR.A/938/2018 ORDER clear whether the Court notice issued to the complainant on 28.09.2013 was served or not.
19. Taking into account the aforesaid facts and circumstances of the case, this Court is of the opinion that it is a fit case whether the Court should exercise its discretion under Section 482 of Cr.P.C. instead of relegating the petitioner to avail his alternative remedy of filing an application for special leave to appeal.
8. It can be said that the acquittal of the accused was on a technical ground. The purpose of conferring the power on the Magistrate under section 256 of the Code, is to deter dilatory tactics on the part of the complainant, once he sets in motion the criminal proceedings by instituting a complaint. The purpose being that the accused is obliged to attend the Court proceedings on the dates fixed by the court and is thus put to harassment if the complainant does not turn up in the court on the dates when his presence is necessary. This, however, in my view, does not mean that if the complainant is absent, the court is duty bound to acquit the accused. If the situation demands or mandates, the Magistrate has the power to adjourn the hearing.
9. In the result, this application is allowed. The impugned Page 17 of 18 R/SCR.A/938/2018 ORDER orders passed by the Courts below are hereby quashed. The proceedings are remitted to the Court of the learned 3rd Additional Chief Judicial Magistrate, Himmatnagar. The proceedings of the Criminal Case No. 3237/2011 shall commence from the stage it had stopped on the complaint being dismissed for default.
Rule is made absolute. Direct service is permitted.
(J.B.PARDIWALA, J) MAYA Page 18 of 18