Calcutta High Court
Khagendranath Chattopadhya vs Samdud Huda And Ors. on 17 June, 1991
Equivalent citations: 1992CRILJ2836
JUDGMENT Gitesh Ranjan Bhattacharjee, J.
1. This criminal appeal, filed on special leave, is directed against the order of acquittal passed by Judicial Magistrate, First Class, Krishnagar, Nadia in Case No. 1797C of 1974. That was a complaint case filed by the appellant-complainant on the 9th November, 1974 alleging that the respondents-accused persons stealthily cut and took away paddy worth about Rs. 200/- grown by the complainant on his land. The accused were summoned in respect of offence punishable under Section 379, I.P.C. On 9-5-81 the learned Magistrate examined two witnesses including the appellant-complainant. It is the case of the appellant that on 9-5-81 after examining the said two witnesses, the learned Magistrate, on the prayer of the appellant, fixed 20-6-81 as the next date for examination of further witnesses and this was announced by the learned Magistrate in presence of the appellant in Court. It is the further case of the appellant that accordingly the complainant produced one witness in Court on 20-6-81 and filed hazira, but to his utter surprise he then came to know from the Bench Clerk of the Court that the case had been disposed of on 6-6-81 and the accused persons had been acquitted. Being aggrieved by such order of acquittal, the appellant has preferred the present appeal on special leave.
2. The allegation of the appellant is indeed a very serious one. Nothing can be more deplorable than a situation that while the Magistrate announces a date in Court for next hearing he in fact records a different date for the purpose in his order-sheet. Going by the order-sheet of the record it appears that after examining two witnesses, namely P.Ws. 1 and 2 before charge on 9-5-81, the learned Magistrate adjourned the case to 2-6-81 on the prayer of the complainant for examination of all remaining prosecution witnesses. The order-sheet dated 2-6-81 shows that although the accused filed hazira on that date the complainant was absent without steps and in the circumstances the learned Magistrate recorded an order closing the prosecution case. It further appears that on that very date the learned Magistrate framed charge under Section 379, I.P.C. and fixed 6-6-81 for cross-examination of all P.Ws. and examination of the accused under Section 313, Cr. P.C. On 6-6-81 also all the accused persons filed hazira, but the complainant was absent without steps. In the circumstances the learned Magistrate recorded an order expunging the evidence, examined the accused persons under Section 313, Cr. P.C. and heard argument (obviously ex parte) on that very date. The order-sheet dated 6-6-81 further records that the judgment was also delivered on that date and the accused persons were acquitted. We thus find that the order sheets of the record do not show that on 9-5-81 the case was adjourned to 20-6-81 as alleged by the appellant/complainant. It is also to be noted that although it is alleged that on 20-6-81 the complainant filed hazira and then came to know from the Bench Clerk that the case had been disposed of on 6-6-81 and the accused persons had been acquitted and that on perusal of the record the complainant's Lawyer came to now that the next date was fixed on 2-6-81 and not 20-6-81 as told by the learned Magistrate, yet no application was filed by or on behalf of the complainant on 20-6-81 or ever thereafter in the Court of the learned Magistrate drawing his attention to the grievance of the complainant in this regard. Had any such application been filed by the complainant before the learned Magistrate at the earliest opportunity which by way of a normal repercussion he was expected to do, that would not only have betrayed some measure of bona fide on the part of the complainant in respect of his contention that contrary to the record the learned Magistrate had announced a different date as now alleged by him, but would have at the same time required the learned Magistrate to record his comments on the matter in disposing of or dealing with the application which might have been of some assistance to the superior Court in arriving at a decision in respect of the grievance of the aggrieved party. Ordinarily the superior court will be loath to entertain or accept any allegation of error, irregularity or impropriety against the lower court in respect of any factual aspect of matter unless the attention of the concerned Court is first drawn to the matter by the aggrieved party by filing an application there at the first instance, except of course where such factual error, irregularity or impropriety is patent or manifest on the face of the record. In the case under consideration although no such application was filed by the complainant before the learned Magistrate and although the record on the face of it does not sustain the allegation that 20-6-81 was fixed by the learned Magistrate as the next date of hearing and on the contrary it appears that the accused persons attended the Court on 2-6-81 as per the programme fixed by the order dated 9-5-81 thereby exposing the allegation of the complainant to a grave suspicion inasmuch as if really the complainant was misled by any announcement of the learned Magistrate regarding the fixation of the next date of hearing it was only expected that the accused persons also would have been equally misled by the same announcement which however did not happen as is evident from the fact that they appeared on 2-6-81 consistently with the order recorded on 9-5-81, yet however some indication is there in the order-sheet itself which reflects a gross subsequent inconsistency between what the learned Magistrate professed to have done and what he actually did. Order No. 37 dated 6-6-81 shows that in the absence of the complainant the learned Magistrate expunged the evidence, examined the accused persons under Section 313 Cr. P.C., heard argument (obviously, advanced on behalf of the accused persons only) and delivered judgment on that very date acquitting all the accused persons. The said order purports to have been recorded by the Magistrate himself in his own hand and is not a dictated one. Strangely enough, and rather to our utter surprise we however find that the hand written two-page judgment of the learned Magistrate which is there is the record is dated the 18th June, 1981. To say the least, it is an act of gross impropriety on the part of the learned Magistrate to record an order in the order-sheet showing that the judgment was delivered on the 6th June, 1981 which as a matter of fact no judgment was at all delivered on that date and the judgment that was subsequently rendered is dated the 18th June, 1981. Such kind of a glaring and misleading inconsistency between order-sheet and record painfully indicates that the learned Magistrate is not sufficiently conscious of the necessity of accuracy and faithfulness of records in the matter of administration of justice. We will only advise and hope that the learned Magistrate will, in future, take due care in this regard so that the records maintained by him in discharge of his official responsibilities may regain credibility. The Registrar, Appellate Side, shall inform the concerned officer accordingly, wherever he may be posted now.
3. Again the procedure adopted by the learned Magistrate due to the absence of the complainant cannot be approved. It was a warrant procedure case started on the basis of a complaint. On 6-6-81 the learned Magistrate expunged the evidence which the complainant had earlier tendered before framing of charge. The reason of expunging the evidence seems to be that the concerned witnesses including the complainant who had been earlier examined did not turn up on 6-6-81 for cross-examination after framing of charge. We are however of the opinion that the learned Magistrate was not justified in expunging the evidence simply because the witnesses concerned did not turn up. In this connection we may look to the relevant provisions of of Section 246, Cr. P.C. which runs thus :
Section 246(1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which in his opinion, could be adequately punished by him he shall frame in writing a charge against the accused.
(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty or has any defence to make.
(3) If the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion, convict him thereon.
(4) If the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under Sub-section (3), he shall be required to state, at the commencement of the next hearing of the case, or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and, if so, which of the witnesses for the prosecution whose evidence has been taken.
(5) If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged.
(6) The evidence of any remaining witnesses for the prosecution shall next be taken, and after cross-examination and re-examination (if any), they shall also be discharged."
From a reading of the said provisions it will appear that after framing of charge the Magistrate is required to recall only such of the witnesses earlier examined as the accused shall wish to cross-examine and this he will do after ascertaining the wish of the accused in this regard. In the present case, however, the learned Magistrate, without ascertaining the wish of the accused, fixed 6-6-81 by his order dated 2-6-81 for cross-examination of all P. Ws. after charge. It is not known whether as a matter of fact the accused persons would wish to further cross-examine those witnesses whom they had already examined before charge. That being so, it was not proper for the learned Magistrate to expunge their evidence on the ground of their non-appearance, without ascertaining the wish of the accused persons as to whether they really required the presence of those witnesses for further cross-examination. And even where their presence is so required, Sub-section (5) of Section 246, Cr. P.C. casts a positive duty upon the Magistrate to recall such witnesses which duty is not discharged by merely fixing a date for their cross-examination. In order to discharge that duty the Magistrate shall have to issue summons, if necessary, and enforce the attendance of the confirmed witnesses which unfortunately he did not do. In the circumstances, we are of the view that the learned Magistrate was not justified in expunging the evidence and thereafter passing the judgment of acquittal on the footing that there was no evidence in the case.
4. Now, even if we set aside the order of acquittal on the ground of material irregularity in following the procedure prescribed by law, the case will have to be remitted back to the learned Magistrate for re-trial according to proper procedure starting from the stage of Sub-section (4) of Section 246, Cr. P.C.
5. The charge is of theft of paddy committed in the year 1974. The loss alleged is of Rs. 200/- only. This appeal is pending here for more than a decade, the same having been filed in 1981. In these circumstances, an order of re-trial now, we are afraid, will be plainly contrary to the principle enunciated by the Supreme Court in S. Guin v. Grindlays Bank Ltd., . In that case on a complaint alleging that the accused persons had without reasonable cause obstructed the officers of the Bank from lawfully entering the Bank premises and also obstructed the transaction of normal business of the Bank pursuant to a call of strike given by its employees, the accused persons were summoned in respect of offences punishable under Section 341, I.P.C. and Section 36AD, Banking Regulation Act, 1949. After trial, the learned Magistrate however, acquitted the accused persons. The Bank then filed an appeal before the High Court against the said order of acquittal. The High Court felt that the trial Court had missed the essence of the offences and therefore, there was a failure of justice and hence remanded the case for retrial. On appeal the Supreme Court set aside the judgment of the High Court and restored the order of acquittal passed by the Magistrate, not on merit but mainly on the ground of delay. In that connection the Supreme Court referred to an earlier decision of the Court in S. Veerabadran Chettiar v. E.V. Ramaswami Naicker, and made the following observation :
We are of the view that following the above principle the High Court should have dismissed the appeal before it even if it disagreed with the view taken by the trial Court with regard to the gist of the offence punishable under Section 341, I.P.C. having regard to the inordinate delay of nearly six years that had ensued after the judgment of acquittal, the nature and magnitude of the offences alleged to have been committed by the appellants and the difficulties that may have to be encountered in securing the presence of witnesses in a case of this nature nearly 7 years after the incident. The termination of the criminal proceedings in that way would secure the ends of justice as it would bring about reconciliation between the management and the employees and also put an end to a stale criminal proceeding in which the public had no longer sufficient interest. We accordingly set aside the judgment of the High Court and restore the order of acquittal passed in this case by the Metropolitan Magistrate without however expressing any opinion on the issues of fact and law involved in the case.
6. Going by the aforesaid decisions of the Supreme Court and having regard to the facts and circumstances of the present case, such as the lapse of time, the nature of the offence, the value of the alleged loss, etc., we are of the view that the ends of justice will be better served by dropping the proceedings, although we strongly disapprove of the manner in which the learned Magistrate disposed of the case.
7. Accordingly, this appeal is dismissed. The order of acquittal not having been passed on the merit of the case, and the dismissal of this appeal also being not on merit, we make it clear that the same shall have no effect one way or the other, on any question of title or possession.
8. The appeal stands dismissed.
Mukul Gopal Mukherji, J.
9. I agree.