Lichhmanram and Another vs State of Rajasthan

S.C. Mital, J.—The petitioners have preferred this petition u/s 482, Cr. P.C. aggrieved by the order dated 7-3-1998 passed by learned Judicial Magistrate, Sujangarh in Cr. Original Case No. 75/95 (State v. Lichhmanram) under Sections 341, 342 & 323, IPC whereby the petitioners'' application dated 11-4-97 for dropping the aforesaid proceedings was dismissed.

The brief facts giving rise to this petition are that S.H.O. Sujangarh after necessary investigation in FIR No. 196/94 under Sections 447, 341 & 323. IPC lodged by complainant Kanhaiya Lal submitted chargesheet against the petitioners in the Court of Judicial Magistrate, Sujangarh to stand trial for the offences mentioned above. The learned Judicial Magistrate took cognizance against the petitioners for the above mentioned offences on 14-2-1995. The accusation of the offence was not read over to the petitioners till 11-4-1097 and petitioners filed an application to drop the proceedings against them in pursuance of the decision Common Cause A Registered Society through its Director Vs. Union of India (UOI) and Others, The learned Judicial Magistrate heard the arguments and passed the impugned order rejecting the application holding that the petitioners were absent on 25-8-95, 15-12-95 and 24-5-96. Thereafter, they attended the Court on three dates but the accusation could not be stated to them due to their absence in the Court on the aforesaid dates of hearing. The learned Judicial Magistrate took the view that the petitioners cannot take advantage of their own fault of absence in the Court.

I have heard the learned counsel for the petitioners and the learned Public Prosecutor and perused the impugned order. The learned counsel for the petitioners contended that the proceedings were pending for more than two years on the date of filing the application on 11-4-97 by the petitioners. The learned Judicial Magistrate committed grave error in not dropping the proceedings in view of the principles and guidelines laid down in Common Cause A Registered Society through its Director Vs. Union of India (UOI) and Others, The petitioners were granted exemption of the attendance on their applications on the afore-mentioned three dates and it cannot be treated as lapse on their part because the proceedings could make progress by stating the accusation to the counsel for the petitioners. In this way, according to the learned counsel for the petitioners, the proceedings cannot be continued against the petitioners which are pending for more than one year without the commencement of the trial. The learned Public Prosecutor vehemently opposed the petition and supported the impugned order.

I have given my earnest consideration to the rival submissions and I have also gone through the judgments cited on behalf of the petitioners. The Apex Court laid down in Common Cause A Registered Society through its Director Vs. Union of India (UOI) and Others, as follows:-

2(e) Where the case pending in criminal Courts under IPC or any other law for the time being in force are punishable with imprisonment upto one year, with or without fine, and if such pendency is for more than one year and if in such cases trials have still not commenced, the criminal Court shall discharge or acquit the accused, as the case may, be, and close such cases.

Thus, it has been directed by the Apex Court that any case which is pending in criminal Court under IPC or any other law punishable with imprisonment upto one year with or without fine shall be closed by discharging or acquitting the accused if the pendency is for more than one year without commencement of the trial. The period of pendency of criminal case is to be reckoned from the date the accused are summoned to appear in the Court. However, the Apex Court in the recent judgment with the same title in Common Cause, A Registered Society Throough its Director Vs. Union of India and others, clarified the phrase ''pendency of trials'' and ''non-commencement of trial'' as employed in the judgment.

In cases of trials of summons cases by Magistrates the trials would be considered to have commenced when the accused who appear or are brought before the Magistrate are asked u/s 26-A whether they plead guilty or have any defence to make.

It is more than clear that in summons cases the trial shall be considered as commenced when the accused appears or is brought before the Magistrate and the accusation of the offence is read over to him.

When we read the above direction and the clarification together, it leads us to the conclusion that if the cases under IPC or any other law punishable with imprisonment upto one year, with or without fine are pending for more than one year and accusation has not been read over to the accused i.e. the trial has not commenced then the criminal Court shall discharge or acquit the accused, as the case may be, and close such cases. It is also very relevant and important to note that the Apex Court has further given directions in Common Cause A Registered Society through its Director Vs. Union of India (UOI) and Others, in the later judgment that the time limit shall not apply if the pendency is wholly or partly attributable to the dilatory tactics or any other action of the accused resulting in the delay of the trial. The delay must have occasioned despite full co-operation by the accused. The delay should not also result due to the stay of the proceedings by the higher Courts. Thus, it is not only by arithmetical calculation that the accused can claim to close the proceedings but he will also have to show that he has co-operated with the Court for the disposal of the proceedings and he has not committed any fault on his part during the pendency of the proceedings.

We shall now examine the instant case on the touch stone of the above mentioned directions and clarifications laid down by the Apex Court. The allegations against the petitioners are of the offences under Sections 341 (punishable with one month simple imprisonment or fine Rs. 500/- or both), 342 (one year simple imprisonment or fine of Rs. 1000/- or both) and 323 (one year simple imprisonment or fine of Rs. 1000/- or both). The trial shall commence on the day when the accusation is stated to the accused. In the instant case, the accusation of the offence has not been stated to the petitioners till the date of filing of the application by the petitioners on 11 -4-1997 and the case was pending for more than two years. Therefore, the instant case is covered within the time limit given in 2(e) as quoted above but at the same time we have also to consider the directions laid down by the Apex Court in the later judgment that the pendency should not be due to the fault of the petitioners or any stay order granted by the superior Courts.

In this case before us the petitioners did not attend the Court on 25-8-95 to 24-5-96 and their attendance was dispensed with on their request and as such particulars of the offences could not be stated to them upto 24-5-96. Thereafter they attended the Court on three dates and ultimately filed the application on 11-4-97. The learned counsel for the petitioners contended that their attendance was dispensed with and it cannot be treated as a lapse or fault on the part of the petitioners. Reliance has been placed on Chander Mohan and Others Vs. State of Rajasthan, It was a case under Sections 447, 323, 341 read with 34, IPC. Some of the accused persons were not present on four dates but on all the dates application was filed for dispensing with their attendance and the same was allowed to dispense with their attendance. The learned Presiding Officer was on leave on two dates out of the four dates. In such circumstances, the view was taken that it could not be said that the trial in the case could not proceed due to the fault of the accused persons. However, in the instant case, the facts are different because on three dates petitioners accused were not present. The learned Presiding Officer was not on leave on those dates and I am of the view that the particulars of the offence could not be stated to the accused persons because they were absent and their attendance was dispensed with. The learned counsel on behalf of the petitioners contended that the particulars of the offence could be stated to the counsel for the petitioners even if the accused were not present and their attendance was dispensed with. It cannot be held that the case could not proceed due to the absence of the petitioners. I am not inclined to agree with the learned counsel for the petitioners. Section 251, Cr. P.C. provides that in a summons case when an accused appears or is brought before the Magistrate, the particulars of the offence shall be stated to him and he shall be asked whether he pleads guilty or has any defence to make. Since, the petitioners were not present, the particulars of the offence could not be stated to them. I am of the view that while applying for dispensing with their attendance, the accused cannot as a matter of right claim that the accusation may be stated to their counsel. The judicial discretion lies with the learned Judicial Magistrate because the recording of the plea of the accused is an important and crucial stage of trial and the Court can adjourn the proceedings to state the accusation to the accused personally. In this case, in the above circumstances, I am of the view that the plea of the accused could not be recorded because they did not attend the Court and sought exemption of their attendance on three dates. This delay is attributable on their part and merely dispensing with their attendance should not be interpreted to mean that the petitioners are not responsible for the delay. I am of the opinion that the learned judicial Magistrate has not committed any error in not closing the case for the reasons given in the impugned order and the same does not suffer any infirmity.

Consequently, I do not see cogent ground to exercise the inherent powers of this Court u/s 482, Cr. P.C. Accordingly this petition is hereby dismissed.