Gujarat High Court
B.J. Pandya, Octroi Inspector, Godhra ... vs Arvindkumar Kanubhai Hadial And Ors. on 24 December, 1991
Equivalent citations: (1995)2GLR1100
JUDGMENT K.J. Vaidya, J.
1. "Whether the learned Magistrate trying the criminal cases under Section 125 of the Gujarat Municipalities Act, 1963, involving evasion of large scale public revenue [by way of not paying the octroi duty] by the persons importing goods/vehicles within the Municipal limits, can ever be permitted to short-circuit the cirminal trial, illegally racing to register premature acquittal by enmass disposal of cases on the alleged stock ground of 'complainant being absent when the cases were called out"? This in short, is the question of quite great importance which though suitably discussed and dealt with earlier by this Court in some of its reported judgments, and yet at the same time, since the same has failed to impress upon the subordinate Courts to the desired extent, it is once again felt imperative to deal with the same at further length, in the overall interest of public justice!
2. In this group of acquittal appeals numbering as many as 219, involving more or less identical fact-situation and the law governing the same, it is decided to hear and dispose off all of them together by this Common Judgment.
3. To state few relevant facts as far as they are necessary constraining this Court once again to raise the above question and further express itself in this regard, the same has to be broadly divided into two categories, viz., firstly, the particular gross facts and circumstances of the instant cases wherein in as many as 219 criminal cases, premature acquittal came to be recorded at the stroke of a pen on patently unjustifiable ground of 'absence of the complainant when the matters were called out' and Secondly, the general continued, unabated irresponsible trend of illegally throwing away the criminal cases, at the very threshold of the trial in utter disregard to the clear-cut guidelines given on some of quite basic and elementary principle of the procedure to be followed when the complainant or witnesses are found absent on the date fixed for hearing, imparing the image and basic trust of the people in the administration of justice! 3.1. Taking first the basic allegations in these cases, according to Mr. B.J. Pandya, Octroi Inspector, Godhra Municipality all the concerned respondents herein are alleged to have illegally imported their respective vehicles and/or goods within the limits of the Municipality without paying any octroi dues payable thereupon, with an intention to defraud the Municipality of its legitimate octroi revenue. When the said facts came to be detected from the records of the R.T.O., the Municipal Authorities directed Mr. Pandya to file complaints against the said defaulting respondents as a result of which, 219 criminal cases were filed under Section 125 of the Gujarat Municipalities Act, 1963 [for short "the Act"] before the learned Chief Judicial Magistrate, Godhra. Further, as alleged by the appellant, out of the said 219 cases, in 210 cases, the respondents were not served at all, and in the remaining 9 cases, though they were duly served, seven out of them did not appear, and therefore, warrants were issued against them. Infact, according to the appellant, all these cases went on being adjourned mechanically from time to time, aimlessly drifting and tossing from one date to another, for as many as 2 to 2xh years for the reasons unknown - rather may be best known to the learned Magistrate, and thereafter, one day, i.e., on 31-8-1991, quite abruptly and surprisingly with a stroke of the pen, they came to be disposed off on the solitary ground that the complainant was absent when the cases were called out!! It is under these circumstances of enmass illegal disposal of important cases, affecting the public revenue by the learned Magistrate that the appellant has been constrained to file this group of appeals, challenging absolutely illegal, arbitrary, perverse and unjust orders of premature acquittals passed by the learned Magistrate.
4. Mr. Mohit Shah, the learned Advocate for the appellant, while challenging the impugned judgment and order of acquittal submitted that the learned Magistrate on the one hand had indiscreetly allowed the trial proceedings to be drifted on and on without exercising any control over the same, and on the other hand, thereafter has disposed of about 219 cases without any justifiable reasons in an undue and unholy haste, which has resulted into gross miscarriage of the Justice!! Highlighting this aspect, Mr. Shah further submitted that the complainant had practically all throughout remained present before the trial Court and had to return frustrated because the trial couldn't proceed ahead on account of non-service of summons, and in other cases, due to non-appearance of the respondents. According to Mr. Shah, the complainant had remained present on all the previous occasions, but for the last occasion, i.e., on 31-8-1991, on which day the respondents came to be acquitted on the short ground of his absence when the cases were called out. Mr. Shah further submitted that the manner in which after the protracted proceedings for about 2 to 2Vi years, respondents came to be prematurely acquitted by short-circuiting the trial was indeed something unbelievable, much less unthinkable, and yet to believe the same, one has to turn to the facts of the instant case! This indeed is quite serious thing inasmuch as the respondents-accused who are alleged to have robbed the Municipality of its precious octroi revenue, running into lacs of rupees, have been to say the least is indiscreetly let-off by the learned Magistrate as if they had committed some trivial offence! Mr. Shah further submitted that it is indeed unfortunate that the learned Magistrate could not appreciate the gravity and seriousness of the offences alleged against the respondents wherein the public institution like 'Godhra Municipality' was defrauded and robbed of its octroi revenue running into lacs of rupees! Mr. Shah further submitted that looking to the gravity and seriousness of the offence and the relevant penal provisions, the respondents were liable to pay fine ten times the amount of octroi evasion, and accordingly, they were liable to pay in all more than Rs. 5 lacs towards octroi to the Municipality. Mr. Shah on the point of indiscreet premature acquittal on the ground of'Complainant absent' has relied upon decision of this Court, rendered in the case of State of Gujarat v. Dr. C.K. Patel . Mr. Shah on the basis of aforesaid submission finally urged that the impugned orders of enmass acquittals being patently perverse and illegal, the same deserve to be atonce quashed and set aside and accordingly, all the cases be remanded to the trial Court to be decided on merits, according to law. Mr. D.K. Trivedi, the learned P.P. has supported the above submissions of Mr. Shah.
4.1 In all these appeals, respondents are duly served, however, for whatever reasons they have not remained present either personally or through learned Advocate before this Court. In this view of the matter, taking that they have nothing to say, it is decided to dispose of all these matters after hearing the learned Advocate appearing for the appellant and the State.
5. Now having heard the learned Advocate Mr. Shah appearing for the appellant and the learned P.P. Mr. Trivedi for the State at length, it may be stated at the very outset that the submissions made by the learned Advocates have considerable force, and therefore, the same merits to be accepted to allow all these appeals. Looking to the gravity and seriousness of the offence and the tell-tale sordid facts of all these cases and the proceedings before the trial Court, not only the impugned judgment and order of enmass acquittal deserves to be quashed and set aside, and the matters be remanded to the trial Court for de novo trial but the further pain, shock and surprise which they carry in their folds constrains this Court to take a very serious view of the matter in overall interest of 'justice', in particular, and the administration of justice in general. Thus, over and above the alleged patent illegality and the perversity of the impugned order of acquittal, the unbecoming conduct of the learned Magistrate raises in its turn many important questions in the mind of this Court, and to catelogue few of them, they are:
[i] How indeed in the first place, the learned Magistrate could have made the grievance about the absence of complainant when the cases were called out to acquit the accused, when in some of the cases either the summons were not served and/or when served, the accused never appeared before this Court and even the plea of the accused was yet to be recorded?
[ii] How indeed the learned Magistrate in second place could have thought it fit of acquitting the accused who are alleged to have committed serious economic offence of octroi evasion to the tune of lacs of rupees where the public institution like the Municipality came to be robbed of its precious income by way of octroi revenue?
[iii] How indeed the learned Magistrate in third place was unaware of the fact that the public institution like the Municipality carry on its ordinary public welfare activities as well as maintain its entire administration set-up on the basis of public revenue by way of tax and the octroi duty which is the most important source of its income?
[iv] How indeed the learned Magistrate in the fourth place, during the course of 2 to 2½ years when the cases were adjourned from one date to another, did not take any care to see as to why some of the respondents were yet unserved and those who were served, then why they were not remaining present before the Court, why in those cases warrants were not issued against them for securing their presence before the Court and further when those accused appeared before him, why pleas were not recorded?
[v] How indeed the learned Magistrate in the fifth place did not realise by way of common sense that by dismissing the complaints in such a cavalier and unjudicial fashion, he was indirectly encouraging the offenders of such a gross economic offences by putting premium over the wrong of their octroi-dodging!! [vi] How indeed the learned Magistrate in sixth place did not realise that he was duty bound to enforce the law enacted by the Parliament and the technical premature acquittals have no place in any case, more particularly, in serious cases involving the economic offences pertaining to public revenue, beneficial social and/or labour legislation or any legislation of public interest! [vii] How indeed the learned Magistrate in seventh place did not realize that even the technical ground of acquitting the accused under Section 256 of the Code was not available to him as such offences pertain to social beneficial piece of legislation where the complainant being a public servant, due to some all of a sudden other pressing appointments could not present himself before the Court on the date of hearing. Rather, in the facts of the present case, particularly when in most of the cases accused were not served even with the summons and in other cases, though served no plea was recorded, now, where was the question of complianant remaining present when the cases were called out?
[viii] How indeed the learned Magistrate became oblivious to the ordinary judicial propriety of not following the judgment of this Court rendered in case of Stale of Gujarat v. Dr. C.K. Patel decided on 13-2-1991 which already stands and the copies of which came to be circulated to all the learned Magistrates on 25-3-1991. In this regard, it indeed cannot be disputed that as per the record [a] the judgment in case of State of Gujarat v. Dr. C.K. Patel (supra) was delivered on 13th February, 1991 [b] as per the direction of this Court, copies of the same were circulated to all the learned Magistrates on 25th March, 1991, and that [c] thereafter only an enmass acquittal orders in 219 criminal cases came to be passed on 31st August, 1991; that is to say 5 months after the circulation of aforesaid judgment, on the ground "complainant remaining absent". Not to follow decision of this Court directly on the point, more particularly when the copy of the same was duly circulated to all the learned Magistrates of the State, by no stretch of imagination, the same can be treated to be a simple and mere judicial error, as the same is nothing less than grave impropriety, which can as well amount to Contempt of this Court!! What else indeed it could be other than total disregard of the directions given by this Court in case of Dr. C.K. Patel, where despite the said decision on the point, the learned Magistrate went on to outrageously dispose of as many as 219 criminal cases with the stroke of a pen! What further else it could be to throw away such great number of cases more particularly on the last day of the month, that is to say, on 31-8-1991, except the perverse illegal practice of scoring the cheap disposal!. And in case if on inquiry it is found to be by way of wilful disobedience, then less than the contempt of Court!!! 5.1 All these questions combined together clearly demonstrate three things, viz., Firstly, as to in what utter care-free and irresponsible manner the respondents came to be perversely acquitted, Secondly, the public body like Godhra Municipality denied the justice by rendering it financially weak to efficiently discharge its functions and duties to people of Godhra town, Thirdly, how indeed the learned Magistrate irresponsibly abdicated the judicial function in throwing away large number of cases on totally unjustifiable ground. Rather the combined effect of all these negligence on the part of the learned Magistrate prima facie demonstrates not only how the cases involving huge fraud on the public revenue came to be indiscreetly thorwn to the winds but also his scant respect for the 'Law' and ultimate disregard for the 'Justice' and overall 'public cause'!! Further still, prima facie what indeed can there be any greater proof of unbecomingness on the part of the learned Magistrate, where it is found that enmass disposal of 219 criminal cases on totally unjustifiable ground resulting into premature acquittals came to be ordered by a judgment and order dated 31-8-1991, which is just about 5 months after the judgment of this Court in case of State of Gujarat v. Dr. C.K. Patel [supra] came to be circulated to all the learned Magistrates of the State! It is really unfortunate that despite the clear-cut guidelines given by this Court in the said judgment, "as many as 219 criminal cases of public importance came to be bull-dozed as if they were some sort of illegal and unauthorised encroachments upon the public road made by some anti-social elements!" Trying a case and discharging corresponding duty of doing justice is indeed a "Divine Act" which every Magistrate has got to perform with all sense of solemnity, sincerity and accountability firstly, to its own judicial conscience, secondly, to the public in general, and thirdly, to the higher-ups in the administration of justice. In other words, the act of doing justice is not an act to be mechanically performed like warding off some annoying flies or mosquitoes attempting to sit on ones face!! As a matter of fact, over and above the knowledge of law, basic philosophy underlying the same, proper sense of judicial discretion, over-all judicial pragmatism, as warranted by the facts and circumstances of the case and the judicial discipline are further invaluable qualities which every learned Magistrate doing justice worth the name must possess before he occupies the throne of justice. Talking individually, in a particular given case of evasion of octroi duty, the amount involved may be quite small and insignificant, not warranting any serious view of the matter to be taken but that is not the way to look at the things in such type of offences where the accused displays tendency of evading octroi! The reason is - one may like it or not, year after year, the offences involving evasion of public revenue takes place and go on increasing, some involving small amount while others involving quite large. This is quite instinctive greed of the most of the persons, and therefore, there is indeed no way to root it out from the complex human mind, unless every person becomes an ideal citizen. This is sheer impossibility and hoping against the hope. In this view of the matter, merely because evasion amount involved is small, if the Court gets relaxed and takes lenient view of the matter and lets off lightly the offender, not only he will be surely encouraged to repeat the same in future at the cost of the public revenue, which may or may not be detected, but even the law will lose all its sanction and respect to control such offenders. Not only this but further also we cannot afford to ignore that the coffers of public exchequer are filled up mostly and ordinarily with the help of small amounts that just drips into it, meaning thereby every small pie is precious and important to be ignored, as in totallity, it ultimately swells the public exchequer or there is deficit every year to meet with the financial challenges of the institution! To illustrate this further, every drop of water has its own value, standing by itself perhaps little but as collected one invaluable! In fact what is the ocean, if drop after drop of water is taken away from the same, that is to say no ocean can ever be made and exist without collection of drops of water. Thus, if we look at the drop of water alone, it may appear quite insignificant but if we look at the same in totallity, it can as well shape into either pond, lake, river or even ocean, and even for little purpose, a small tank of water in house, which stands to utility for much needed daily household works! Similarly, the offences pertaining to the public revenue or any other such public interest which may in a given case appear to be quite small and insignificant but at the same time taking the collective view of the matter, it is indeed quite grave and serious to countenance the same lightly!
6. Further, bearing in mind the facts and circumstances of the case, like the present one, all the learned Magistrates, as of their duty, first of all must appreciate and know the basic difference between the "substantial justice" and the "technical or mechanical justice" on the one hand and his ultimate accountability towards the overall object and spirit of the particular act and the affected public interest in general, on the other! The gravity and seriousness of the offence and its overall impact on the socio-economic set-up in the Society can never be under-estimated or ignored by any learned Magistrate while conveniently opting for cheap acquittals on the sole ground of 'absence of compalinant and/or witness[es]'. It is this honesty, anxiety and sensitivity of the judicial conscience, the light of wisdom and the resultant public-oriented judicial activism and involvement in cases which make them "the learned Magistrate" truly capable of rendering real and substantial justice, and thereby worthy to sit on the "Divine throne of Justice". Had indeed the learned Magistrate, before disposing of 219 criminal cases, just paused for a while and cared to look into the "Rojkam proceedings" and checked-up the same by putting few questions to himself, as to whether - [i] summons were served? and if not served, why not? [ii] Whether if issued, why not returned either served or unserved? [iii] Who was the duty constable to whom such summons/warrants were entrusted for service? [iv] What steps the Court was required to take for issuance of fresh summons? and also [v] What further steps the Court was required to take against the Process Serving Agency for diregarding the orders of the Court, either in not serving and/ or delaying the service of process either on the accused or the prosecution witnesses]; as the case may be? and [vi] Whether in case if the process server is found to be at fault, whether mere admonishing him for the same was by itself sufficient or some more stringent action by way of notice of contempt of Court, etc. etc., was required to be taken against him? If this sort of initiative and the resultant judicial activism was evinced by the learned Magistrate then perhaps, these matters would not have lingered for as many as 2½ years. Not only that but had indeed the learned Magistrate taken steps to effectively serve summons upon the accused right in the beginning, all these cases perhaps could have been disposed of much earlier! Thus, the learned Magistrate having not taken the aforesaid care has prima facie exposed himself to the comment of acquiescing in the negligence and inaction of the process serving agency to commit such blunders at the very first and important step of the trial proceedings, and thereafter, not to take care to rectify the same demonstrates total remissness on the part of the learned Magistrate. This cannot be permitted. The learned Magistrate conducting the trial ought to be the master of the situation and in commanding position right from taking cognizance of the offence till the trial is terminated and judgment pronounced. If the process serving agency, the most vital link in the administration of justice is allowed to play foul and is not kept under control, no case can ever make any speedy progress. Not only that but because of such remissness on the part of the process serving agency, the cases after cases will go on stock-piling, protracting the trial proceedings and thereby delaying and ultimately defeating the "justice". It is hardly required to be said that the conduct of the trial does not mean mere mechanical issuance of the summons, warrants, recording the plea of the accused, framing-up the charge, examining and re-examining the witnesses, recording statement of the accused under Section 313 of the Code, hearing of the arguments and ultimately recording the order of conviction or acquittal by writing the judgment. All these will surely stand to defeat, if the learned Magistrate remains neglient in matter of early and effective service of summons and in case of non-service, to take defaulting process serving agency to task! Before the trial proceeds, the learned Magistrate has to be very cautious at the very first step, viz., issuance of the summons. It has got to be seen that the same is duly served, if not served, what are the reasons for the same being not served and to take further effective steps to see that the summons/warrants; as the case may be, are effectively served on the accused or the witnesses]. This can be done only if the learned Magistrate personally keeps an eye on the "Rojkam" proceedings, supervise the proceedings in each and every case. The judicial consciousness in order to do speedy justice and avoid piling up of the cases has to start reflecting and clicking right from the first step of issuing the process and then by follow-up action of the verification of the service of summons, the reasons for non-service and the further effective steps to be taken to secure presence of the concerned accused or witnesses; including appropriate action against the defaulting process serving agency; as the case may be. This sort of ordinary judicial activism and awareness is absolutely necessary for the speedy justice and for that purpose, at every stage, the learned Magistrate has got to be alert and see that he does not slip into unconsciousness of mechanically adjourning the cases without verifying whether the process is issued or not, etc. etc. This Court feels that in the instant case, had indeed the learned Magistrate evinced little desired care and concern as suggested above, in the matter of service of summons and recorded plea of the accused, then perhaps, the complainant would not have been driven to approach this Court to file all these acquittal appeals!! Such criminal cases like the present one which hardly involves examination of one or two witnesses], requiring any time and yet, when they are found to be aimlessly drifted for 2 to 214 years, is something too difficult to be imagined!
7. Taking the hint from the facts and circumstances of this case where the learned Magistrate without caring to see as to whether the process issued by him against the accused in fact have been served or not, mechanically adjourned the case from date to date, it appears that some remedial measures are required to be evolved to meet with the situation. Accordingly, this Court feels that first of all, once the process is issued at any subsequent stage of the proceedings, the cases should not be mechanically adjourned without properly checking up the "Rojkam proceedings" to verify the service or non-service of the process. Whenever cases are called out and the process issued on the parties are found to be either not served or has not returned either served or unserved, the learned Magistrate should pause for a while and look into the "Rojkam proceedings" to take appropriate immediate steps. This Court can quite appreciate that these days because there are number of cases to be attended on a particular date, perhaps reeling under the acute pressure, the learned Magistrate has no time to verify the position as regard the service or non-service of the process issued by him, and thereby mechanically goes on adjourning the case after case. But then, this excuse of pressure of work is hardly any answer to the good administration of justice, and accordingly, the tendency to mechanically adjourn the case on the said ground is required to be immediately curbed. This, the concerned learned Magistrate can do well by maintaining a special "Process Service Monitoring Register" on the basis of Chart tabulated below:
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Sr. CC or C.R. Police Summons Warrant Returnable Name of No. SC No. No. Stn. dated Date on accused
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[1] [2] [3] [4] [5] [6] [7] [8]
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Name of Handed Date of Remarks Court Result Remarks, if any,
Witness over service/ by action against Court
to PC non- Police duty Police
on duty service Constable
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[9] [10] [11] [12] [13] [14] [15]
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Thus, a mere look at the chart will give an idea to the concerned learned Magistrate as regard the position of the processes and where the shoe pinches at the point, as to set it right.
8. The ways and means suggested above are the only remedies with the help of which process serving agency can be effectively made accountable and thereby checked and controlled in avoiding delay of Court proceedings. To appreciably improve the efficiency of the Court proceedings in the matter of shortening the delay in doing justice, the above Process Service Monitoring Register may be written by the Clerk of the Court, but at the same time, the same is also required to be invariably personally supervised and checked before going to the next matter.
9. As stated above, moment any non-service of the process or process issued not received back either served or unserved comes to the notice of the learned Magistrate; as suggested above, he should take up the matter with the learned Public Prosecutor, District Superintendent of Police or the Police Commissioner, as the case may be. Over and above the suggestions hinted above, in order to further iron out the difficulties in the matter of service of the processes, periodical meetings with the learned P.P.s, Investigation Officers, District Superintendent of Police, District Magistrate and Commissioner of Police, etc., should be arranged. Not only that but to cut-short the matter, cases in which the public servant is a complainant, the summons to the accused as well as witnesses can as well be handed over to the complainant himself for the service and in case he has any difficulty in serving the same, the Police Officer of the concerned area can be directed to help-assist the complainant in service of the Courts summons, etc. In short and substance, once the complaint is filed, it is the paramount duty of the learned Magistrate to see that the process issued by him on accused/witness are effectively and expeditiously served so as to deliver speedy justice.
10. While parting, of course there cannot be any justification or the defence to say that as the criminal Courts are over-burdened with the back-log of cases, and further still because of ever increasing accelerated spate of more and more cases, the Courts reeling under the acute pressure in an unguarded weak moment gives way and dispose of cases on any short available ground like either 'complainant absent' or 'witness not examined by the prosecution' etc., etc. The pressure of work can never be permitted to be a problem to play upon the nerves of the learned Magistrate as in fact what he is required to do is to examine each case independently on merits and decide the same according to law! The learned Magistrate who is unnecessarily obsessed and bogged down with the back-log of cases, in process always wander away and cripples his own judicial discretion, capacity and metal to discharge his duty as a Judge. In this regard, to cite illustration - Can any Doctor be permitted to just touch the patient and ask him to go, calling other patients after patients for examination on the ground that outside his chamber, there was a huge rush of patients to be examined in the course of the day before the time is over? The obvious answer to this is definite "No" because if the Doctor is permitted to casually examine any patient in such a "touch and go" or in "open-shut" manner then it is almost certain that he will not be in a position to properly examine and diagnose the disease so as to effectively treat and cure him! In fact when the Doctor undertakes to examine any partient, it is his ethical and legal duty to thoroughly examine him to his heart satisfaction so as to properly diagnose the disease, prescribe the medicines pursuant thereto and cure him of his ailments, at the earliest! Rather, it is precisely for the redressal of medical problem that the partient goes to the Doctor. Accordingly, when a patient goes to a Doctor for the treatment purpose, and said Doctor hardly has he taken pulse, calls another patient and in some such similar fashion cursorily goes on examining patients after patients, haunted by the pressure of number of patients to be examined were far too more than the time permitted, then take it from this Court that the said Doctor has failed to discharge his duty, and indeed there was no fun, charm and drama in mechanically examining him in such 'touch and go' and/or 'open and shut' manner! Similarly, the learned Magistrate, when he calls upon himself to hear and decide the case, it is his first and foremost duty to see that the case which he undertakes for trial is satisfactorily conducted and decided on merits without being in any way influenced either by the back-log or increasing number of cases! This must be present to the mind of all the concerned Magistrates with a view to see that under pressure, in a weak moment, while rushing to register quota disposal, he does not succumb to misconduct resulting into failure of justice!
11. In the result, these appeals are allowed. The impugned judgment and orders of acquittal passed by the learned Magistrate are quashed and set aside. The cases under these appeals are remanded to the learned Magistrate with a direction to restore all complaints on record and proceed with the cases and decide the same on merits, according to law, especially in the light of the decision of this Court rendered in case of State of Gujarat v. Dr. C.K. Patel . The complainant or his successor is further directed to appear before the learned Magistrate on or before 31st January, 1992 and take the date of the proceedings. The learned Magistrate is further directed to issue the summons to the respondent-accused and get it served through the complainant with the help of police officer of the concerned area.