Gopi Nath Raina vs Pt.Nila Kanth

(1) This revision is directed against the order dated 2261973 passed by the Judicial Magistrate 1st Class (Judge Small Causes) Srinagar dismissing

the case against the accused respondent under section 408 RFC and acquitting him of the charge framed against him.

(2) A challan under section 408 RPC was presented by the police Shergarhi against Nila Kanth the accused respondent before the court of

Judicial Magistrate 1st class (Judge Small Causes) Srinagar. The allegation against the accused was that as a salesmancumAccountant of the firm

Raina House Wine Merchants Amirakadal, Srinagar he was entrusted with the goods of the firm and there was a direction to him to keep proper

and regular accounts of the sales and to deposit the sale proceeds daily in the Bank. The accused in violation of the directions did not deposit the

sale proceeds in the Bank but dishonestly misappropriated them to his personal use. On a report filed by the complainant before the police a case

under section 403 RFC was registered which resulted in initiation of criminal proceedings against the accused. The accused was charge sheeted

under sect ion 408 RPC by the trial court and the prosecution was directed to produce its evidence. Part of the statement of Gopi Nath witness

was recorded by the trial court but afterwards neither he nor any other witness was examined by the prosecution with the result that the court

below closed the evidence of the prosecution and in consequence thereof dismissed the case against the accused respondent.

(3) I have heard the learned counsel for the parties.

(4) A preliminary objection has been raised on behalf of the accused respondent that the revision is not competent in as much as no appeal has

been preferred by the State against the order of acquittal. But this preliminary objection has got no force. There is catena of authorities in favour of

the propositions that revision by the complainant is competent where the State has failed to prefer an appeal against the order of acquittal. In the

instant case it was when the State did not prefer an appeal against the order of acquittal that the complainant felt obliged to move this court in

revision. That this court has got power under section 439 Cr. P. C to examine the propriety of the order of acquittal even when no appeal has

been preferred is unquestionable. In AIR 1970 SC 272 it has been laid down that an appeal against an order of acquittal is maintainable only at the

instance of the State and not at the instance of the complainant. The remedy of the complainant in such cases is under section 439 by invoking the

revisional jurisdiction of the High Court. The question however is in what cases should the High court interfere in revision. In my opinion on the

authority of the language employed in section 139. the High court can always interfere with an order of acquittal passed by the court below where

there has been manifest illegality committed in the proceedings and gross miscarriage of justice resulting in the order of acquittal of the accused. It is

true that the jurisdiction vested in tins court by virtue of section 439 Cr. P. C. is to be exercised sparingly only in. cases, to quote the observation

of the Supreme Court, when there has been some glaring defect in the procedure and there has been manifest error on a point of law and

consequently there has been a flagrant miscarriage of justice.' Vide also AIR 1959 Calcutta 457 (e) AIR 1963 J&K 39 (b). There is therefore no

merit in the preliminary objection which is hereby overruled.

(5) Corning to the merits of the case I find that the court below has committed a serious illegality in closing the evidence of the prosecution which

has resulted in the acquittal of the accused. The record of the case discloses that Gopi Nath Raina and Pt. Balbhadur Wazir two witnesses of the

prosecution were present on 22771, but their statements were not recorded as the counsel for the accused was engaged elsewhere. The court

directed these witnesses to appear on the next date of hearing Gopi Nath appeared, but his statement could not again be recorded because of the

absence of the counsel for the accused The statement of this witness was deferred at the instance of the accused. On 14 21972 however part of

the statement of Gopi Nath was recorded and was thereafter postponed. The witness was directed to appear on the next date of hearing. On

4472 this witness again appeared but again for the reason that counsel for the accused was not available on that date his remaining statement could

not be recorded and was deferred at the instance of the accused. The witness was directed to come again on the next date of hearing. Thereafter

neither Gopi Nath nor any other witness appeared before the court for successive hearings and on 11673 the court closed the evidence of the

prosecution and acquitted the accused. Now this was not the way in which the court below should have proceeded in the case. When the

recording of the statement of Gopi Nath witness was deferred at the instance of the accused and his counsel and there was a direction to him to

appear on the subsequent date and he did not appear, and when also there was a direction to Pt. Balbhadur Wazir on 22771 to appear on the

next date of hearing but he also failed to make his appearance, the court in such a situation was not powerless in enforcing the attendance of these

witnesses. It should have resorted to coercive methods by issuing warrants against them in order to procure their attendance. Surely no blame

could be thrown on the prosecution that it had failed to discharge its obligation.

(6) when witnesses appear in a court and the court does not record their statement on particular date for one reason or another & it gives direction

to witnesses to appear on the next date & subsequently the witnesses fail to make their appearance, the court has to exercise its ordinary powers

for enforcing their attendance, in the ends of justice. In my opinion the procedure adopted by the court in closing the evidence for the prosecution

when the prosecution could not be said to be at fault was a glaring procedural mistake which had resulted in miscarriage of justice.

(7) I may also mention here that it become equally the responsibility of a legal practitioner while accepting the brief of an accused to seriously

defend the case of his client. It is quite understandable that due to some unforeseen reasons the counsel may be prevented from attending the court

on a particular date of hearing but it should not be a routine affair with him. In no case can the counsel be absolved of his responsibility toward s his

client and the court in a criminal case because he is engaged elsewhere and this thing is repeated on more than one occasion. A counsel defending

the accused in a criminal case owes responsibility to the court and his client and he must therefore discharge the same causing least embarrassment

or inconvenience to the court especially when witnesses are present and they are to be examined by the court. Repeated requests made by the

accused seeking adjournments after adjournments because his counsel is not available is hand ly a healthy procedure too and this should not be

encouraged by the court charged with the administration of criminal justice. This is also not desirable in the interests of speedy disposal of cases.

(8) I, therefore, allow this revision petition, set aside the order dated 11673 and also the order dated 22 673 of the trial court acquitting the

accused and direct that the case will be readmitted by the trial court and the trial in the case will proceed according to law. Counsel for the

accused to directed to cause the appearance of the accused before the trial court on 18th April The trial court will decide the case as expeditiously

as possible.