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Showing contexts for: section 338 ipc in Gaurav Aggarwal vs State on 22 July, 2019Matching Fragments
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ACMM"
15. The settlement agreement (Ex.P1) to which reference is made in the third order-sheet (quoted above) reflected that the parties, i.e., (the petitioner being the accused through counsel, on one hand, and injured Divik Kashyap with his father, on the other) had "agreed to settle/compound" the offence under section 338 IPC, subject to payment of Rs.2 lacs (by the former to the latter) by pay order No.532033 dated 25.04.2013 drawn on Karnataka Bank in his favour. The statement of Divik Kashyap affirming the compounding by him of the offence under section 338 IPC was separately recorded on 26.04.2013 (at page 67 of the trial court record), he also having acknowledged the receipt of the aforementioned instrument (referred to as "DD").
18. It is only after the offence under section 338 IPC had been compounded by one of the victims (Divik Kashyap @ Mikki) that the ACMM realized that the case involved another victim as well. On the request of the petitioner (through counsel), summons were issued to the said other victim Manoj, not for his evidence, but for "exploring the possibility of settlement". The proceedings are totally silent as to whether Pateshwar Prasad had been given up or his evidence had been abandoned or as to why he remained unexamined. The ACMM forgot that the petitioner was on trial for two offences one punishable under section 279 IPC and the other under section 338 IPC (which concerned more than one victim). Divik Kashyap @ Mikki, one of the victims, may have compounded the offence under section 338 IPC in so far as it concerned him. But, he remained a crucial witness for the trial for the offence under section 279 IPC as indeed in respect of offence under section 338 IPC qua the other victim(s). The proceedings are silent as to why his evidence in such regard was not taken on 26.04.2013.
24. The petitioner was called upon, by order dated 09.05.2019, to indicate, by affidavit, his clear position as to whether Mr. Manoj Tiwari had acted on instructions or otherwise, this in view of the response dated 16.04.2019 to above effect of the counsel. He filed an affidavit sworn on 15.05.2019 stating, inter alia, that he would not press the legal plea of Mr. Manoj Tiwari, Advocate having acted without any authorisation conceding that he had been engaged by vakalatnama formally executed and that he may have acted "in good faith and bonafide" entering the plea of guilty on his behalf on 21.08.2013 adding that the need to file criminal revision petition before court of sessions, and the petition at hand, had arisen because of the confusion that had "cropped up" on account of he having been (earlier) acquitted for offence under Section 338 IPC and later convicted under Section 338 IPC, without charge being framed.
50. Before concluding, it is necessary to place on record strong dis- approval of this Court to the manner in which the trial in the above- mentioned criminal case has been regulated by such senior judicial officer as holding the rank of Additional Chief Metropolitan Magistrate (ACMM). To recapitulate, the defect and deficiency in the notice under Section 251 Cr.PC. tells poorly on the comprehension of the prosecution case by the presiding judge. The record demonstrates that for seven years, no effort was made to secure the presence of material witnesses, which is unacceptable. Crucial witnesses were present on 26.04.2013 but no interest was shown by the Magistrate in securing their evidence. Matter was adjourned because the ACMM was informed that there is a possibility of settlement. The ACMM should have borne in mind that offence under Section 279 IPC was not compoundable. Before sending away the eye-witness (Pateshwar Prasad), without his evidence being recorded, the ACMM should have remembered that even if the offence under section 338 IPC were to be compounded by the victim(s), he would still need the testimony of the said eye-witness for the offence (under section 279 IPC) the charge of which would remain pending for adjudication. Only, one of the two victims (of offence under Section 338 IPC) had compounded the offence qua him by receiving Rs. 2 lakhs as compensation. In the opinion of the ACMM, ends of justice would stand satisfied with fine of Rs. 500/- only with regard to the charge under Section 338 IPC which had survived qua other similarly placed victim Mikki. A total disparity in the approach, even in the matter of sentencing in the same case, is also a matter of concern and discomfort. It smacks of a whimsical approach which the criminal system justice can only ill- afford.