Jaspal Singh vs Baljit Singh

S.C. Malte, J.

This is the appeal by special leave under Section 378(4) of the Code of Criminal Procedure.

The appellant/complainant had filed a criminal case against the respondent/accused and one Gurcharan Singh, who is an absconding accused.

The complaint can be briefly summarised as follows:

On 19.5.1990 at about 7.00 P.M., the complainant was in his ''Dera''. At that time, respondent Baljit Singh armed with a Sota (heavy stick) and absconding accused Gurcharan Singh armed with a Datar (Sickle) arrived there. The complainant asked their explanation for having come there thus armed. Thereupon, both these accused warned the complainant that they would teach him a lesson for having dared to purchase the land from one Mohinder Singh. These utterances were followed by a challenge and attack by the accused. Absconding accused Gurcharan Singh caught hold of the complainant by his long hairs and accused Baljit Singh gave a Sota blow on the back of the complainant. The complainant then fell down, and Gurcharan Singh whereupon gave a sickle blow on the right leg of the complainant. The complainant raised alarm. Witnesses Kashmir Singh and Sarup Singh witnessed the incident. The accused then fled away. The complainant was removed to the Hospital at Dhilwan. Since the doctor was not available there, the mediccolegal examination of the complainant was conducted on the following morning. Despite the report made to the police, no action was taken against the accused. The complainant, therefore, filed complaint in the Court of Judicial Magistrate Ist Class, Kapurthala. Process under Sections 326/324/323/34 of the Indian Penal Code was issued against the present respondent/accused Baljit Singh and the absconding accused Gurcharan Singh. Since the efforts to secure the presence of accused Gurcharan Singh failed, he was declared as Proclaimed Offender. The matter, therefore, proceeded against the present respondent Baljit Singh.

The papers before us indicate that initially vide order dated 5.5.1993, Judicial Magistrate Ist Class, Kapurthala, dismissed the complaint and discharged the accused. The complainant, therefore filed criminal revision No. 30 of 3.6.1993. Additional Sessions Judge, Kapurthala, who disposed of the revision, passed the order, the operative part of which is as follows :

"For these reasons, the order under revision is set aside and the case is sent back to the trial Court for proceeding further after framing charges u/s 326, 323/34 IPC. The complainant and the respondents should appear in the trial Court on 2.9.1994. File be consigned to the record room."

Pursuant to the order, the matter again came up before the same Judicial Magistrate Ist Class, Kapurthala, who had earlier dismissed the complaint and discharged the accused. The same Judicial Magistrate, vide his judgment dated 25.10.1994, acquitted the present respondent of the charge under section 323 IPC. Against that decision this appeal with special leave has been filed.

In this Court, on behalf of the appellant it was submitted that the learned Magistrate had disregarded the direction given by the Additional Sessions Judge, who vide his order dated 20.8.1994 had directed the trial Court to frame charges under section 326/323/34 IPC. It was further submitted that the trial Court has not at all followed the procedure, nor cared to frame the charge under section 326 IPC though the Additional Sessions Judge had directed to frame the charge u/s 326 IPC while disposing of criminal revision.

On behalf of the respondent, it was submitted that Gurcharan Singh, who is said to have given sickle blow and caused injury that would fall under section 326 IPC, was absconding and there was no question of framing the charge under section 326 I.P.C.

On going through the record, we find that the learned Judicial Magistrate Ist Class has totally ignored the procedure to be followed in this case. The order passed by the Additional Sessions Judge had clearly directed the Judicial Magistrate Ist Class to frame charges under Sections 326, 323/34 I.P.C. The allegations mentioned in the complaint also indicate that the complainant alleges that both the accused in furtherance of their common intention had caused him grievous hurt. Whether such grievous hurt was inflicted or not, would be a matter of further appreciation. Since Section 34 I.P.C.was applied in this case, the other accused who was before the Court should also be made answerable to all those acts which are alleged to have been committed in furtherance of common intention. The framing of charge under Section 326 IPC, therefore, did not depend on the presence or absence before the Court of the other absconding accused who is said to have used sickle and caused grievous injury. Learned Additional Sessions Judge had directed to frame the charges under particular Sections, and the Magistrate was, therefore, dutybound to follow that direction. Instead of following the direction, he seems to have simply issued a notice to the respondent/accused and proceeded to hear the matter. It appears that the Magistrate was totally unaware of the procedure to be followed in such cases. Obviously, the procedure made for trial of warrant cases on private complaint would be applicable in this case. The provisions of Sections 244 to 250 of the Code of Criminal Procedure would be applicable in such cases. The judgment passed by the trial Magistrate clearly indicates that initially he had discharged the accused pursuant to the provisions of Section 245 of the Code of Criminal Procedure on the finding that no case against the accused has been made out which, if unrebutted, would warrant his conviction. From that stage onwards the matter should have been proceeded further after the case was remanded by the Additional Sessions Judge. Therefore, the trial Magistrate was duty bound to frame the charges in respect of the offences as directed by the Additional Sessions Judge. The judgment of the Magistrate is unsatisfactory for the following reasons also:

His judgment does not indicate that he ever cared to follow the provisions of Chapter XVII of the Code of Criminal Procedure, which pertains to the writing of judgment. In particular, the attention of the Magistrate is invited to subclause (b) of clause (1) of the Section 354 of the Code of Criminal Procedure, which makes it mandatory that the judgment shall contain the points for determination, the decision thereon and the reasons for the decision. The learned Magistrate was expected to frame points for determination keeping in view the charges against the accused and necessary ingredients to prove these charges.

In the set of circumstances, we are left with no other alternative but to send this matter back to the trial Court. It is unfortunate that the litigants are, thus, required to run from pillar to post. If the Magistrate had taken proper steps and had followed the proper procedure; and if he had thus taken enough care to scan the evidence properly by giving sufficient and proper reasons for accepting or rejecting the prosecution case, probably the matter would have ended by this time. Further, on finding that the same Magistrate has decided this case twice and has disregarded even the direction given by the Additional Sessions Judge, we are of the opinion that this matter should be now sent to another Magistrate for hearing and disposal according to law.

We, therefore, allow the appeal. The case is remanded back to the trial Court. It shall be heard and decided by the Judicial Magistrate Ist Class other than Mr. S.S. Hundal, Judicial Magistrate Ist Class, Kapurthala. While dealing with the case, the Magistrate shall follow the direction given by the Additional Sessions Judge, as mentioned above. He shall also take into consideration the observations made in this judgment. He shall frame proper charges. In that event, and as may be necessary in view of framing of the charge, he shall allow both the parties to lead evidence, and, if found necessary, even recall the witnesses already examined. In the case of absconding accused, he shall follow the procedure as laid down under section 299 of the Code of Criminal Procedure after complying with the procedure as laid down under section 82 and onwards of the Code of Criminal Procedure in respect of proclamation of the absconding accused, if such steps were not taken earlier.