Gujarat High Court
State Of Gujarat vs Ramanbhai R. Pandya on 9 November, 1990
Equivalent citations: (1993)1GLR881
JUDGMENT K.J. Vaidya, J.
1. "Whether the discretion exercised by the learned Magistrate under Section 256 of the Criminal Procedure Code, 1973 in acquitting the accused alleged to have committed the offences under the relevant provisions of the Factories Act, 1948 and the Rules made thereunder on the ground of the complainant remaining absent when the cases were called out, is illegal, erroneous and unjust calling for any interferance by this Court ?" (2) "How indeed this discretion of acquitting the accused under Section 256 of the Code, particularly with reference to any of the social beneficial pieces of the Legislation is required to be exercised so as to prevent patent miscarriage of justice ?" These two are the leading questions arising for consideration in group of the present four acquittal appeals.
2. To state few relevant facts briefly, as far as they are necessary to decide the questions raised above, it may be stated that Mr. L.V. Jaradi, Factory Inspector, Vododra, when on 29-4-1987, visited 'Kanan Plastics', a factory of the respondent herein namely Shri Ramanbhai R. Pandya, situated at Vadodra, it was found that the same was working with two of its workers - namely, Jivanbhai Govindbhai and Ashokbhai Ishwarbhai alongwith other co-workers, were found busy in production work without any identification cards, which the respondent, as per the Rules, was under obligation to furnish them free-of-cost as prescribed in Form No. 36, and thereby had contravened Rules 110(A)(1) and (2) of the Gujarat Factories Rules, 1963 (for short 'the Rules') read with Section 92 of the Factories Act, 1948 (for short 'the Act'). On further inspection, it was also noticed that the respondent had contravened Rules 61(1)(d) and 61(6) of the Rules and Section 7 read with Section 92 of the Act by not getting thoroughly examined the pressure vessel of the air-compressor tank used by a competent person and also not producing its report in the prescribed Form No. 11 for perusal and verification when asked for by the Factory Inspector. On the basis of these facts, the Factory Inspector on 27-7-1987 filed four complaints before the learned J.M.F.C., Vadodra, against the occupier of the said factory for the contravention of the aforesaid Rules punishable under Section 92 of the Act. This came to be registered as Criminal Case Nos. 1359 of 1987 to 1362 of 1987, and the summons were made returnable on 17-8-1987. Thereafter, it appears that on 17-8-1987, as the complainant - Factory Inspector did not appear before the Court despite the fact that these cases were called out thrice, the learned Magistrate on the said short ground only, at once, acquitted the accused under Section 256 of the Code giving rise to the present group of four acquittal appeals challenging the impugned judgment and orders dated 17-8-1987.
3. Mr. H. B. Antani, the learned Additional P.P. appearing for the appellant-State while challenging the impugned judgment and order of acquittal, submitted that the same were ex-fade illegal being arbitrary, capricious and unjust and the same has resulted into serious miscarriage of justice. The learned A.P.P. further submitted that to cursorily throw away such important cases under the beneficial Labour Legislation and that too on the first returnable date of the service of the summons, was not only illegal and unjust but the same was highly disgusting being offending to the very object and the spirit of the Act itself and verges on the side of unbecoming of a judicial officer. According to the learned A.P.P. no question as such could ever have arisen of acquitting the accused on the ground of complainant remaining absent more particularly in view of the fact that even the appearance and the plea of the accused were yet to be recorded. The learned A.P.P. further submitted that if the accused persons are permitted to be acquitted in chavaliar fashion like the one in the instant cases, the legislative objects under the social beneficial legislation and cause of justice would be seriously undermined. The learned A P.P. while severely lamenting upon such avoidable procedural lapses committed by learned Magistrate was at pains to submit that in number of such other cases, the accused persons were found being prematurely let-off, acquitted under Section 256 of the Code by some of the learned Magistrates either in undue haste or to score disposals labouring under some misconception of law without taking into consideration the relevant factors such as nature and seriousness of the offences, some genuine difficulties on the part of the complainant in not appearing before the Court on the date fixed for hearing and the resultant injustice to the genuinely aggrieved parties, namely, the workers, the beneficiaries under such social legislations. The learned A.P.P. further submitted that such an approach cannot be termed to be a judicial one as the premature acquittals like the one in the instant cases under Section 256 of the Code gives serious set-backs to the object and the spirit of the Act and the Rules made thereunder, and for that purpose, any other social beneficial legislation. The learned A.P.P. further submitted that in order to cry halt at once to such irresponsible display of cheap and quick disposal oriented casual approach of some of the learned Magistrates cutting at the very root of the labour justice occasioning serious failure of justice, some guidelines are required to be given to impress upon them to mend their ways in future. On the basis of these submissions, the learned A.P.P. finally urged that since the impugned judgment and orders being per se perverse and illegal, the same deserve to be quashed and set aside remanding them to the trial Court to be disposed of on merits according to law.
4. As against the above, the learned Advocate Mr. Nigam R. Shukla, appearing for the respondent submitted that taking into consideration the legislative mandate as reflected in expression 'shall acquit' appearing in Section 256 of the Code, the learned Magistrate was perfectly justified in acquitting the accused on the ground of non-appearance of the complainant when the cases were called out. Mr. Shukla in the alternative further submitted that apart from the legality of the orders, since the offences in question were petty pretty stale, it would not be expedient in overall interests of the justice to remand the cases to the trial Court.
5. Now in order to appreciate and find out as to whether the learned Magistrate while acquitting the accused on the ground of the complainant being absent, has exercised his discretion under Section 256 of the Code judicially or not, it is desirable first of all to usefully refer to Section 256 of the Code, which reads as under:
Section 256. Non-appearance or death of complainant:
(1) If the summons has been issued on complainant and on the day appointed for the appearance of the accused or any day subsequently thereto 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:
(Emphasis supplied).
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) xxx xxx xxx
xxx xxx xxx
6. On close examination of the said Section 256 of the Cede, it is very clear that the same does not clothe the learned Magistrate with any arbitrary, absolute power to mechanically throw away the case and acquit the accused merely on the ground of the non-appearance of the complainant on the date fixed for hearing as suggested by Mr. Shukla. In fact, whenever the learned Magistrate is faced with a situation where the complainant fails to appear before the Court on the date fixed for hearing instead of readily resorting to acquitting the accused under Section 256(1) of the Code, he must, as of imperative legal necessity, first of all advert himself to the directions of the expression - 'unless for some reasons he thinks it proper to adjourn the case to some other day' (emphasis supplied), meaning thereby the learned Magistrate must think and inquire of himself whether it would be proper to adjourn the case to some other day. As a matter of fact, the learned Magistrate is expected to be little more careful and circumspect in applying his mind to other relevant facts and circumstances of the case before resorting to such premature acquittals. Further, whenever the complainant is found absent before the Court on the stipulated date, the learned Magistrate must invariably ask himself whether by not adjourning the case to some other day, the real and substantial cause of justice was likely to suffer or not and only after considering the said question, he may pass an appropriate order. In short, merely because the complainant is found to be absent when the cases are called out, that by itself can never be just, legal and proper ground to mechanically acquit the accused as losely thought and understood by some of the learned Magistrates as has been done in the instant cases. In case if the learned Magistrate for want of the non-appearance of the complainant decides to acquit the accused under Section 256 of the Code, then in that event, he should record the reasons as to why he does not think it proper to adjourn the matter to some other date keeping in forefront the above discussions. Turning to the facts and circumstances of the instant cases, had indeed the learned Magistrate been little more alive to certain glaring aspects of the cases, namely (i) the nature and gravity of the alleged offences, (ii) that the offences alleged were under Labour Welfare Legislation, (iii) that the real sufferers at the hands of the accused were the poor workers and not the formal complainant, who for whatever reason was absent, (iv) the impersonal attitude and formal character of the complainant and such other things then in that case, instead of arbitrarily and capriciously exercising his discretion in favour of the accused under Section 256 of the Code, he would have surely thought it just and proper to adjourn the hearing of the matter to some other date as directed by expression 'unless for some reasons, he thought it proper to adjourn the hearing of the case to some other date'. This type of desired care and circumspection, unfortunately, are found to be totally wanting in the instant cases while prematurely acquitting the accused, and therefore the impugned orders of acquittal clearly deserve to be interferred with.
7. Further, in these appeals, three things just stand out quite distinctly catching immediate attention of this Court. They are - First of all, the alleged contravention of Rules for which the accused came to be prosecuted are undoubtedly important beneficial provisions which are serious enough to be countenanced lightly by any learned Magistrate. Secondly, the learned Magistrate has somehow got rid of these four cases in the manner, to say the least, cannot be said to be judicial by any standard of measure; and thirdly, as long as the accused had not appeared before the Court in response to the summons issued to him and his plea recorded, no question as such of the complainant not appearing before the Court on the date fixed for hearing could ever arise.
8. It is simply difficult to comprehend as to how and why the learned Magistrate thought it proper to rush up acquittals on the very first date fixed for the appearance of the accused before the Court ? How indeed could the learned Magistrate further afford to remain oblivious to the fact that the accused was prosecuted for contravention of the Rules, which are essentially meant for the benefit, viz., protection and promotion of the welfare and well-being of none too enviable weaker section of the society, viz., poor and helpless workers. As a matter of fact, in all such types of cases under labour beneficial legislations striving for social justice, whenever and for whatever reasons, the complainant remains absent, the learned Magistrate is expected to take special care and must exercise judicial discretion in a manner which is found to be more in consonance with the spirit and object of the Act by adjourning the case to some future date so as to decide the same on merits rather than unceremoniously disposing of them abdicating judicial duty. The absence of formal complainant ordinarily should never be allowed to detract the judicial attention from the avowed objectives of the Act, the class of persons for whom such Acts are specially enacted, and the overall sense and goal of doing social justice in such matters. Though in letter and spirit under the Act, the Factory Inspector has an ideal and important role to play as a statutory functionary in voicing, ventilating, expounding and thereby vindicating and upholding the cause of helpless victim workers against comparatively better equipped and organised, strong influential employers by taking necessary steps including filing of the complaint (on behalf of the workers) before the Court, still however it is a matter of hard reality that these days we do come across several such unfortunate incidents and experiences wherein the said functionaries exist more or less in letter and form rather than in its true spirit. They in many cases are found to be more or less, dull carry-forward formal passive agents of the aggrieved workers without their any involvement and participation in workers' cases and causes for whom in fact they exist statutorily. Thus, in order to avoid the possible risk of accused getting acquitted under Section 256 of the Code due to some lapse of some such indolent care-free complainants, the learned Magistrates once having taken the cognizence of the offence, by issuing summons to the accused, indeed should not be at once that hyper-sensitive, annoyed or exasperated over the absence of the complainant reacting in to instant acquittals of the accused, throwing the sense of duty and the cause of social justice to the wind. The wrong committed by the formal complainant in not appearing before the Court cannot be permitted to turn into concession of immediate acquittal in favour of the accused.
9. In this view of the matter, whenever the complainant is absent at the time when the case is called out, what is required to be appreciated by the learned Magistrate is the fact that the formal complainant (Factory Inspector) has nothing to lose if the accused scores chance unmeritted premature acquittal on that ground, as against that, the real and substantial loss would be to the real heartburn grievances of a genuinely affected aggrieved party namely the working class on whose behalf, by way of statutory obligation only, the Factory Inspector has filed complaint, which remains uncared and unredressed. It is simply unfortunate that because of such unjust premature acquittals, instead of justice being done, the grievances and sufferings of the working class get further aggravated and frustrated at the hands of no less an institution than the Court itself from where nothing but the justice is expected. In order to do the real and substantial justice, whenever the complainant fails to appear before the Court on the date so fixed for hearing, the first and foremost duty of the learned Magistrate must be to invariably consult his judicial conscience and ask whether the default committed by the complainant - Factory Inspector in not so appearing before the Court can ever be allowed to white-wash the alleged wrong committed by the employer for not fault of the real aggrieved party (namely the workers not before the Court) by granting rough and ready acquittals under Section 256 of the Code ? It hardly requires to be impressed upon the minds of the learned Magistrates that by such short-cut unjust acquittals neither the cause of justice not the image of the judicial system nor the object of the Act for which a special Act came to be enacted by the Legislature stands honoured and vindicated. There cannot be any greater act of injustice than to refuse to do justice by arbitrarily disposing of the matter in absence of the complainant, more particularly when taking into consideration the importance of the statute, the case could and should have been conveniently adjourned to some future date for deciding the same on merits according to the law. Even after adjourning the case, if by chance, the complainant persists in not appearing before the Court, then even in such type of cases, the learned Magistrate should not feel himself powerless to coerce and enforce his presence before the Court by awarding cost, issuing summons, warrants, etc. (depending upon the exigencies of each case) in order to decide the case on merits. When the question involved in any case is a question of social justice, the learned Magistrate is also expected to rise to the occasion to activate himself in a manner which promotes and enhance the said cause rather than be a passive functionary with sole goal of cheap disposals. Neither any employer nor complainant nor even the Court can be permitted to trifle with such labour legislation in care-free manner as has been done in the instant cases. Unless we protect the law, we cannot expect law to protect us. This is what Geeta also says - 'Dharam Rakshti Rakshitah'. None of us can ever afford to forget the most important thing namely that no amount of social beneficial legislation with howsoever lofty and laudable objectives, the same may be proud to have to its credit, can ever fruitfully deliver the desired social justice to class of persons for whom the same is enacted unless and until the law enforcing agencies viz., the executive and the judiciary both stand equally and harmoniously committed and resolved to share, care, carry forward and implement the said sacred ideals and objectives with missionary zeal. Once the Parliament enacts any particular statute, unless and until the same is declared to be ultra vires or repealed, its objects and honour has got to be protected and uphold by all - by seeing that mere technicality does not cloud the judicial vision and to defuse and defeat the same.
10. What boils down from the above discussion is the fact that the learned Magistrate while acquitting the accused has passed the impugned orders in utter disregard of four important aspects, viz. (i) the manner in which discretion vested in him by virtue of Section 256 of the Code has to be exercised in such cases; (ii) the being philosophy of the 'social justice' underlying these cases; (iii) heartburning or sense of commitment to cause and call for social justice; and (iv) the overall judicial accountability involved. In fact, it has been rightly pointed out by the learned A.P.P. that the present appeals are not the only matters where such indiscreet and irresponsible orders of acquittal have been passed, as a matter of fact, the working class has a misfortune of coming across number of such cases wherein similar fate has been meted out to them by illegal acquittal or orders of unduly lenient sentences frustrating the very spirit and object of the Act against which many such appeals are filed, are pending before this Court.
11. In view of the aforesaid discussion, the impugned orders of acquittal deserve to be quashed and set aside. The arguments of Mr. Shukla, that as the offences alleged against the respondent being petty and pretty stale, these matters should not be remanded at such a belated stage, has no substance whatsoever, as to do so would be simply encouraging and perpatrating injustice at the hands of this Court. The alleged contravention by the respondent by no stretch of imagination can be said to be trivial as the non-compliance of the relevant Rules can even result into fatal accident costing life of some poor workers. As a matter of fact, taking into consideration the facts and circumstances of these cases, the acquittal like the one in the instant cases deserves to be strongly deprecated and the cases must be remanded in order to see that the offending exercise of the judicial discretion and power are properly set right.
12. In the result, these appeals succeed and are allowed. The impugned judgments and orders of acquittal passed by the trial Court are quashed and set aside. The matters are remanded to the trial Court to be disposed of on merits according to law. Taking into consideration the fact that the offence is. of the year 1987, the trial Court is directed to dispose of all these matters as expeditiously as possible. Mr. Antani, the learned A.P.P. also undertakes before this Court to inform the concerned Factory Inspector to co-operate with the trial Court in disposing of the cases as expeditiously as possible.