Dagu Gudghe vs Sukhdeo Gudghe and Others

Shrihari P. Davare, J.—Heard learned respective Counsel for the parties. With the consent of learned respective Counsel for the parties,

taken up for final hearing.

Present appeal has been directed by the appellant (original complainant), challenging the order dated 17-7-2008, passed by the learned Judicial

Magistrate (First Class), Kopargaon, in S.T.C. No. 362/2006, thereby dismissing the complaint filed by the complainant, in default, and acquitting

the accused for the offences punishable under Sections 323 and 506, read with Section 34 of Indian Penal Code.

It is the case of the complainant, that the accused had been to his house and assaulted him, his brother, mother, as well as, wife, on 14-5-2006

at about 10 a.m. Hence, the complainant filed private complaint bearing S.T.C. No. 362/2006 before the learned Judicial Magistrate (F.C.),

Kopargaon, on 18-5-2006, as the Police authorities did not take his complaint. Learned Judicial Magistrate (F.C.), Kopargaon, after recording

verification of the complainant, issued process against the accused for the offences punishable under Sections 323 and 506, read with Section 34

of Indian Penal Code, on the same day i.e. 18-5-2006. Thereafter, it appears that the accused persons appeared in the said matter and the said

case was posted for production of evidence by the complainant on various dates and it was ultimately kept for recording of evidence on 17-7-

2008. However, since the complainant remained absent on the said date, learned trial court dismissed the said complaint u/s 256 of the Code of

Criminal Procedure, 1973, and acquitted the accused and cancelled their bail bonds, by passing order on the same day i.e. on 17-7-2008. Being

aggrieved and dissatisfied by the said order, the appellant (original complainant) has preferred the present appeal challenging the same.

It is the contention of the appellant that the learned trial court failed to appreciate the fact that the appellant had remained present on every date

of hearing earlier, and despite said fact, learned trial court passed the impugned order acquitting the respondents. It is also contention of the

appellant, that the appellant was present on 17-7-2008 for production of his evidence, but due to illness, he had been to medical store to take the

medicines and during the said period, matter was called out and since the appellant was absent, it came to be dismissed in default and acquitted the

accused. It is further contention of the appellant, that the principles of natural justice require that the appellant be given opportunity to prosecute his

case on its own merits since dismissal of the complaint and acquittal of the accused is without giving opportunity to the appellant to produce the

evidence. Hence, according to the appellant, matter deserves to be remanded back to the learned Judicial Magistrate (First Class), Kopargaon,

and opportunity is required to be given to the appellant to adduce his evidence before the court, by setting aside the impugned order dated 17-7-

2008, and accordingly, learned Counsel for the appellant urged that the present Appeal be allowed.

Learned Counsel for the respondents countered the said arguments and opposed the present Appeal vehemently, and submitted that the

impugned order dated 17-7-2008 is self-explicit which reflects that the appellant remained absent on various dates earlier also prior to the date of

dismissal of the complaint i.e. 17-7-2008, and the appellant also failed to adduce any evidence on the date of dismissal i.e. 17-7-2008, and

therefore, learned trial court has made observations to that effect and dismissed the complaint and acquitted the accused rightly, and no

interference therein is called for in the present appeal.

(6) Criminal Appeal No. 36 of 2012

Learned Counsel for the respondents invited my attention to the fact that the process came to be issued by the learned trial court on 18-5-2006,

but thereafter appellant failed to adduce / produce evidence for a period of more than two years, and hence, learned trial court dismissed the

complaint u/s 256 of the Code of Criminal Procedure, 1973, on 17-7-2008, since the complainant remained absent on numerous dates, as well as,

remained absent on the date of dismissal also, i.e. on 17-7-2008, and failed to adduce / produce evidence on the said date, and hence, learned

Counsel for the respondent submitted that the learned trial court is justified in dismissing the said complaint, and therefore, said order cannot be

construed as erroneous, and hence, no interference therein is called for. Accordingly, learned Counsel for the respondents urged that the present

appeal bears no substance and same is devoid of any merits, and therefore, same be dismissed.

I have perused the impugned order dated 17-7-2008, passed by the learned Judicial Magistrate (F.C.), Kopargaon, as well as, perused the

grounds put forth by the appellant in the present appeal and the annexures therewith, as well as, heard learned Counsel for the parties anxiously,

and at the outset, bare perusal of the contents of the impugned order dated 17-7-2008, passed by the learned Judicial Magistrate (F.C.),

Kopargaon, discloses that the complaint filed by the complainant was dismissed in default due to his absence on the said date, u/s 256 of the Code

of Criminal Procedure, and therefore, said dismissal is a technical dismissal and not dismissal of the complaint on its own merits. Moreover, record

discloses that the appellant remained present before learned trial court on the very day, may be later on, and preferred an application for

restoration of the said complaint, contending that he has gone to medical shop to purchase the medicines, since he was not feeling well on the said

date, and hence, it cannot be construed that the appellant remained absent totally before the court, on the said date i.e. date of dismissal i.e. 17-7-

2008, and hence, further it cannot be construed that the appellant was negligent and was not diligent. Moreover, it also appears from the record

that after issuance of process on 18-5-2006, the appellant (original complainant) remained present before the learned trial court except five dates.

It further appears from the record that some of the respondents i.e. accused also remained absent before the court and even warrants were

required to be issued against them. Hence, principles of justice require that opportunity be given to the complainant to adduce / produce his

evidence in support of his complaint and to prosecute the complaint filed by him on its own merits.

In the said context, reliance can be placed on the following judicial pronouncements :

(a) Judgment of Punjab and Haryana High Court in the case of Manjit Kaur vs. State of Punjab & Anr. reported in 2006 (6) ALL MR (Journal)

27, and more particular on paragraph 6 thereof which reads :

The above provisions clearly provide that the real test in such like cases is of good faith. The Court has to consider the facts of each case and to

see as to whether the complainant was absent for any good reason or not. The Apex Court in Mohd. Azeem''s case (2007 (7) SCC 726) (supra),

in similar circumstances, set aside the order of the learned Magistrate and restored the complaint observing that one singular default in appearance

on the part of the complainant was not sufficient to dismiss the complaint in default when the cause shown by the complainant for the absence had

not been disbelieved and was a valid ground for restoration of the complaint. In the present case, even the process had not been issued to the

accused and petitioner had placed on record the medical certificate of the doctor advising her rest for 10 days with effect from 30-6-1997. The

proviso to sub-section (1) of Section 256 of the Code of Criminal Procedure clearly provides that where the complainant is represented by a

pleader or by the officer conducting the prosecution or where the Magistrate thinks that the personal attendance of the complainant is not

necessary, the same may be dispensed with. The Court need not adopt a shortcut method to put an end to the litigation. The learned Magistrate,

before dismissing the complaint in default should have recorded the reasons as to why he does not deem it proper to adjourn the hearing.

However, no such reasons were forthcoming and, therefore, the impugned order cannot be sustained.

(b) Judgment in the case of Narender Parashar vs. Jagbir Sing 2009 ALL MR (Cri.) Journal 329, and more particularly on para 5 thereof which

reads:

The cause shown by the appellant for his non-appearance before the learned Trial Court is noting down the next date of hearing as 24.11.2007

instead of 5.11.2007 due to communication gap between Reader of the Court as well as his counsel. As is well known, a party should not be

allowed to suffer because of a negligence of his counsel''s part. In re: Purushotam Mantri vs. Vinod Tandon alias Hari Nath Tandon, 2008 (4) Civil

Court Cases 64 (P & H): 2008 (3) PLR 595 (P&H), it has been observed that it would be too harsh on the petitioner to non-suit him merely for

his non-appearance on one date. In the instant case too, the facts are similar. To my mind, the cause put-forth by the appellant for setting aside the

impugned order is sufficient. The doctrine of ""audialteram partem"" too contemplates that no one should be condemned unheard. If the impugned

order is allowed to hold ground without any fault of the appellant, he will feel prejudiced in his right. In the orders of F. Bucan ""Nothing rankles

more in the human heart than brooding sense of injustice."". If the appellant is not afforded the opportunity to substantiate the allegations contained

in complaint by leading evidence, it will go on ranking in his mind that injustice has been done to him. The Courts are here to administer justice.

Therefore, without sojourning any longer on this short point, the impugned order dated 5.11.2007 passed by the Court of learned Additional Chief

Judicial Magistrate, Faridabad, is set aside with a direction to restore Complaint Case No.378/ (sic) 19.10.2006 bearing caption ""Narender

Parashar vs. Jagbir Sing'' to its original number and proceed further according to law. The appellant through his counsel has been directed to put in

his appearance before the aforementioned Court on 16.4.2009 at 20.00 A.M. The Registry is directed to transmit a certified copy of this judgment

to the said Court at the earliest possible.

In the circumstances, the impugned order dated 17-7-2008 deserves to be quashed and set aside and the matter is required to be remanded

back to the learned trial court, but simultaneously respondents should be compensated reasonably and costs is required to be imposed upon the

appellant, and the parties are required to be directed to remain present before the learned trial court on a specified date and to adduce / produce

their respective evidences, if any, without seeking any further adjournment unless warranted emergently, and the learned trial court is required to be

requested to decide the said matter afresh on its own merits.

In the result, present Criminal Appeal is allowed, and the impugned order dated 17-7-2008, dismissing the complaint and acquitting the accused

u/s 256 of the Code of Criminal Procedure, 1973, stands quashed and set aside, and the matter is remitted back to the learned trial court, but

subject to payment of costs by the appellant to the respondents, on or before 15th February 2012, and the said costs is quantified at Rs. 2,000/-

[Rupees two thousand only], and the appellant to deposit the costs before the learned trial court, and the parties are directed to remain present

before the learned trial court on 15th February 2012, at 11.00 a.m., and they are permitted to adduce / produce their respective evidences, if any,

without seeking any further adjournment, unless warranted emergently, and the learned trial court to decide the said case on its own merits afresh,

in accordance with law, and the present Appeal is disposed of finally.