Bombay High Court
Jamnaprasad Sarju Tiwari vs Saban K. Dhone And Others on 17 September, 1991
Equivalent citations: 1992(1)BOMCR403, 1993CRILJ1470
JUDGMENT
1. This is a criminal appeal filed by one Jamnaprasad Sarju Tiwari, a resident of Goregaon, who is supposed to have been conducting a panshop at plot No. 62, Jawahar Nagar. It is alleged that on 14-8-1981, the four accused who are officers/employees of the Bombay Municipal Corporation demolished the pan shop in spite of protests of the appellant. He, therefore, prosecuted the four public servants for offences under sections 427, 447 read with Section 114 of the Indian Penal Code in the Court of the learned Metropolitan Magistrate, 26th Court, Borivali, Bombay, in Case No. 227/S/81. Ultimately, on 10-8-1983, the learned Magistrate acquitted all four accused, the main ground being that the complainant gave evidence and thereafter went away to his native place and was not available for further cross-examination. Not being content with having harassed the public officials for two years through such proceedings, the complainant thereafter filed the present appeal and obtained the leave of this Court in the year 1984 to present an appeal against the order of acquittal. The appeal has been on board for the last several days and when the appeal was called out for hearing yesterday, neither the appellant nor his advocate was present. Regardless of that fact, I have gone through the paper-book carefully. I have heard learned Counsel appearing on behalf of the Bombay Municipal Corporation and its officers as also the learned A.P.P., and I am constrained to observe that the present appeal is not at all justified as the appellant abruptly left when the proceedings before the trial Court were part heard and, therefore, cannot complain about the order of acquittal.
2. It is unfortunate that process was even issued against the employees of the Bombay Municipal Corporation who were apparently carrying out their function within the framework of law. The complainant has made out a rather involved case contending that he had every right to continue with his pan shop at that place and, furthermore, that the Bombay Municipal Corporation was obliged to provide him with an alternative spot even if it was justified in demolishing the pan shop in question. Be that as it may, it is extremely difficult to fathom as to how and under what circumstances the public officials on the facts of this case could have been hauled up as accused before the criminal Court on the alleged charges when there does not appear to be any valid licence in favour of the appellant.
3. The only point raised in the present appeal is that the learned Magistrate had erred in law in having acquitted the accused in spite of the evidence of the complainant. The deposition of the complainant was required to be totally ignored in so far as if he had decided to indulge in the luxury of prosecuting the public officials, obviously in order to pressurise them, it was a requirement of law that he should have seen that proceeding through. Having gone away to his native place, he cannot except a Court of law to indefinitely keep a proceeding that was three years old pending and longer nor could he have, for that matter, expected that the Court can convict the accused without there being any justification therefor. Under these circumstances, even an application that the trial should continue from the point at which it was stopped is wholly misconceived because, to my mind, no case whatsoever is made out in the first instance.
4. Mrs. Chheda, learned Counsel representing the Bombay Municipal Corporation officers, has made a serious grievance to this Court in the course of her submissions by pointing out that this tendency of indiscriminately prosecuting the Bombay Municipal Corporation's officials who have discharged their official functions is on the increase and that they are made to face prosecutions before criminal Courts. She has pointed out that even if they are placed in different parts of the city by virtue of subsequent transfers that they have to give up their work and personally attend Court because even exemption applications are not granted. The facts of the present case would amply justify the grievance made by learned Counsel and to my mind it is necessary to take a stringent view of the situation. Even though the appellant before me is not the accused but a complainant before the Court, in exercise of inherent powers of this Court, I do not think that the High Court is powerless to set right this state of affairs. Under these circumstances, the appeal is dismissed, and I direct that the original complainant, Jamnaprasad Sarju Tiwari, shall pay compensatory costs to each of the four accused personally in the sum of Rs. 1,000/- and to the Bombay Municipal Corporation in the sum of Rs. 5,000/- for having instituted this prosecution and for having followed it up in the present appeal and expended so much of judicial time. The authorities of the Bombay Municipal Corporation shall, with the assistance of the Court, take all necessary steps to ensure that these payments are recovered.
5. Order accordingly.