Madras High Court
Kassimbai vs State By The Inspector Of Police, Devala on 28 August, 2002
JUDGMENT Malai. Subramanian, J.
1. The appeal is directed against the conviction of the appellant, who is Accused No.1 in S.C.No.32/95, for the offence under Section 436 I.P.C., for which he was sentenced to undergo R.I. for five years and to pay a fine of Rs.1000/-, in default to suffer R.I. for one more year. The allegation against the petitioner is that on 14.2.1995 at about 5.30 p.m., he set fire to a small hut belonging to P.W.2, Beevikunju @ Chellammal and caused damage worth Rs.5000/-. Though the appellant was charged for having assaulted P.W.2, he was not convicted of that charge and though the second accused was also charged under Section 436 r/w 34 I.P.C., he was acquitted by the trial Court. In this appeal, we are concerned only with the conviction of the first accused for the offence under Section 436 I.P.C.
2. When the appeal was called, neither the appellant nor his counsel was present, while the prosecution was represented by the Addl. Public Prosecutor. If it is an usual working day and if any representations were made that the learned counsel appearing for the appellant could not come to court, this Court will have no hesitation to postpone the matter to enable the counsel to come and argue, but the reason for non appearance of the counsel for the appellant is boycott of courts, which is deprecated by the Supreme Court. No court is obliged to adjourn a case because of the strike call given by any Association of Advocates or a decision to boycott the courts as held by the Apex Court. It is the solemn duty of every court to proceed with the judicial business during court hours. Moreover, the Supreme Court in the case of BANI SINGH AND OTHERS vs. STATE OF U.P. reported in 1996 SCC (Cri) 848 has been pleased to hold as follows:
"It is the duty of the appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Sections 385-386 of the Code. The law does not enjoin that the court shall adjourn the case if both the appellant and his lawyer are absent. If the court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial Court. If the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused/appellant if his lawyer is not present. If the lawyer is absent, and the court deems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from doing so."
From this ruling it is clear that the Court can show indulgence and adjourn the matter even for the nonappearance of the lawyer, provided his nonappearance is unavoidable. But, when the nonappearance of the lawyer is only and purely due to boycott of courts, we have to follow the ruling of the Apex Court rendered in the case of Mahabir Prasad Singh v. M/s. Jacks Aviation Private Ltd. , wherein their Lordships have been pleased to hold as follows:
"Judicial function cannot and should not be permitted to be stonewalled by browbeating or by bullying methodology, whether it is by litigants or by counsel. Judicial process must run its even course, unbridled by any boycott call of the Bar, or tactics of filibuster adopted by any member thereof. High Courts are duty bound to insulate judicial functionaries within their territory from being demoralised due to such onslaughts by giving full protection to them to discharge their duties without fear...
No court is obliged to adjourn a case because of the strike call given by an association of Advocates or a decision to boycott the courts either in general or any particular court. It is the solemn duty of every court to proceed with the judicial business during court hours. No court shall yield to pressure tactics or boycott calls or any kind of browbeating."
3. In yet another case reported in 2000 SCC (Cri) 21 rendered in the case of Rishi Nandan Pandit and others vs. State of Bihar, the Apex Court has been pleased to hold that when the counsel engaged by the appellants in a criminal appeal does not turn up, there is no obligation on the court of appeal to wait for him or even to adjourn the case awaiting his presence. However, if the counsel is absent there is nothing in law which precludes the court of appeal from appointing another counsel at the State's expense to assist the court. It is a matter of prudence that the court may, in an appropriate case, appoint a counsel at the State's expense to argue for the cause of the accused.
4. The situation presently does not facilitate appointment of any counsel from legal aid. If the appellant is unable to bring his advocate to Court for any other reason, this Court can take steps to appoint an amicus curiae or a counsel from legal aid to panel assist the Court in dealing with the matter, but the situation is otherwise. When the advocates fail to appear only because they are participating in the boycott, Courts cannot wait for the appearance of the advocate concerned for any unlimited period. Under such situation, if the courts go on adjourning the cases, then it would virtually amount to lending support to the boycott call resulting in vacuum in the sphere of administration of justice which would demoralise one of the pillars of the Constitution. Therefore, on perusal of records and after hearing the learned Addl. Public Prosecutor, the following judgment is pronounced.
5. The brief facts necessary to dispose of the appeal are as follows:
The appellant is a former husband of P.W.2, Beevi Kunju @ Chellammal. She was originally married to one Govindan, who died when his daughter was about 2 1/2 years of age. The appellant used to go to her house for taking food and they, thereafter, developed intimacy resulting in their marriage. P.W.2 was cultivating two acres of land assigned by the Government. Sometime later, the appellant brought one Kasimbeevi to the hut of P.W.2 which was objected to by her. Therefore, the appellant necked her out of the house. She thereafter, stayed in the house of her daughter, Rajammal, who was married to somebody and then in her sister's house for some time. Thereafter, four months prior to the occurrence, she put up the hut in question by roofing it with grass.
There were cases pending between the appellant and P.W.2. On 14.2.1995 at about 5.30 p.m., the appellant along with his son born through his first wife, who is the second accused in this case came to the hut in which P.W.2 was staying and assaulted her and the appellant set fire to the hut. This incident was witnessed by P.W.1-Kasiraj, P.W.3-Sathyanarayanan and others. They advised P.W.2 to go to the police and lodge a complaint. Being a lady and as she was not well, she did not go to the police station immediately. The next day, when P.W.1 came there, P.W.2 requested him to lodge a complaint on her behalf. Thereafter, P.W.2 went to Devala Police Station at about 9.15 p.m. and lodged a complaint, Ex.P.1 on the strength of which P.W.6, the Sub Inspector of Police registered a case in crime No.49/95 under Section 436 I.P.C. The printed first information report is Ex.P.4. Subsequently, the appellant went to the same police station and gave a report stating that P.W.2 and others set fire to that hut which belongs to him. A case was registered in Cr.No.50/95 and the first information report is Ex.P.3. P.W.7, the Inspector of Police took up investigation in both the cases.
P.W.7 went to the scene of crime and caused the same to be photographed by P.W.5. M.O.8 series are the photographs and M.O.9 series are the negatives. P.W.7 prepared observation mahazar, Ex.P.2 and drew a sketch, Ex.P.12. He also seized some burnt articles under Ex.P.3, Mahazar. P.W.4 attested Exs.P.2 and P.3. When P.W.7 was questioning the witnesses at the scene of crime at about 3.00 p.m. on 15.2.1995, he received Ex.P.5, the first information report given by the appellant and took up investigation. On 16.2.1995 at about 2.00 a.m., he arrested the second accused and forwarded him for remand. On 22.2.1995 at about 8.30 a.m., P.W.7 arrested the appellant and forwarded him for remand. After investigation, he referred the case given by the appellant and filed a final report in the case given by P.W.1.
6. Since the second accused was acquitted and the appellant was also not convicted for the third charge framed under Section 323 I.P.C., no discussion is necessary with regard to those aspects and I confine only with the offence under Section 436 I.P.C.
7. P.Ws.1 to 3 are the eyewitnesses to the occurrence. P.W.2 claims to be the owner of the hut which was burnt by the appellant. There is no dispute that the appellant married P.W.2, though he was already married and P.W.2 also lost her husband. They have been living for sometime together. According to the evidence of P.Ws.1 and 2, cases were filed by both of them. The litigation was going on from the year 1987. It is the evidence of P.W.2 that she was driven away by the appellant after the latter brought one Kasim Beevi to the house. Thereafter, she was staying with her daughter and sister for sometime and then came to stay in the place where the hut was burnt. According to the evidence of P.Ws.1 and 3, it was the appellant who set fire to the hut. P.Ws.1 are 3 are the independent witnesses. P.W.1 of course in the cross examination has admitted that he was asked to give Rs.550/- to the appellant by the police on the complaint given by the appellant that P.W.1 stole away some coffee nuts. Of course, this may be a ground to advance an argument that P.W.1 is an inimical witness. But the presence of P.W.1 at the scene of crime is spoken to by P.W.3, another independent witness against whom there was no suggestion in the cross examination imputing any motive or animosity against the appellant. Moreover, P.W.2 also speaks about the presence of P.W.1. Therefore, merely because P.W.1 was asked to pay some damages to the appellant, his evidence cannot be said to be interested in the prosecution or he is motivated against the accused.
8. P.W.1 in the chief examination would say that P.W.2 was living in the hut, which was burnt. Subsequently, in the cross examination, he has also admitted that he told the police that only four months prior to the occurrence, she was residing in the hut after thatching it with grass. In the re-examination, he had clarified that the appellant after driving away P.W.2, dismantled the hut, but subsequently 4 months prior to the occurrence, P.W.2 constructed the hut and started living. Therefore, there is absolutely no discrepancy in the evidence of P.W.1 to discredit his testimony. P.W.3, who is another independent witness also speaks about the fact that at the time of the occurrence, he was working in his field, while P.W.1 was working in his own field and both the fields are side by side. It is his further evidence that on hearing the noise, both of them rushed to the scene of crime and saw the appellant throwing a lighted match on the roof of the hut and setting it ablaze.
9. The only point that could be urged by the appellant is that the complaint was lodged only at 9.00 a.m. on 16.2.1995 for an offence that took place at 5.30 p.m. on the earlier day. The answer finds place in the evidence of P.W.1 himself. Though according to P.W.1, he advised P.W.2 to lodge a complaint to the police, P.W.2 did not go there. But the next day, when P.W.1 came to the scene of crime which is nearby his field, P.W.2 requested him to go and lodge a complaint and then only he gave Ex.P.1 report to the police. The delay in lodging the complaint has been properly explained. When it is not the case of the defence that the hut was not set fire, the delay does not loom large. On the contrary, the case of the appellant is that he did not set fire to the hut, but P.W.2 and other witnesses had set fire. This was found to be false by the investigating agency and the case given by the appellant was referred as mistake of fact; but no steps were taken by the appellant to lodge a private complaint before the Court as a counter case or cross case. Therefore, the evidence adduced in this case only go to prove that it was the appellant who set fire to the hut, in which P.W.2 was residing. Even assuming that the land belongs to him, he has no business to set fire to the hut in which P.W.2 was staying and he can only take legal steps to evict her. Mere bona fide claim of right does not in any away absolve the appellant from the crime committed by him.
10. Coming to the question of sentence, this is not a case where due to any motive third parties have set fire to the hut of P.W.2. After all it appears to be a family feud between P.W.2 and her erstwhile husband and a small hut was set fire. Therefore, I feel that interest of justice would be met if the sentence of five years R.I. is reduced to one year.
11. In fine, the conviction of the appellant under Section 436 I.P.C. stands confirmed, but the sentence of imprisonment is reduced to one year R.I. With this reduction in sentence, the appeal stands dismissed on merits.