State of Gujarat vs Gulamnabi alias Fakir Mohmad and Another

K.J. Vaidya, J.—The controversy in this acquittal appeal is -- who is responsible for acquittal of two accused? The prosecution Agency for ''want of prosecution'' as held by the trial Court? Or the trial Court, for ''want of fair trial to the prosecution'' as submitted by the appellant State.

The above acquittal appeal arises out of the judgment and order, dated 3rd Oct. 1980, in Criminal Case No. 679/80, passed by the learned J.M.F.C., Rajpipla (for short hereafter referred to as the trial-court) whereby the respondent accused No. 1 Gulamnabi alias Fakir Mohmad and Accused No. 2 Bashirkhan Nawazkhan came to be charge-sheeted for the offences punishable under Sections 453, 114 and 506 of I.P.C. came to be acquitted on the very threshold of the trial on the ground of want of prosecution.

Briefly the prosecution case, as disclosed from the complaint filed by the complainant Gulamrasul Mahmadbhai Qureshi, is that the complainant is doing a business in the name and style of ''Firoz Cutpiece Centre'' at Rajpipla. And for this he had taken on rent a house from one Chunilal Motilal Pancholi, for being used as a godown by him. On 14th February, 1980, the said complainant had gone to Vadodara and Dabhoi to attend some social functions. On 15th February, 1980, when he returned to Rajpipla, he came to know that the aforesaid two accused persons had broken open the lock of godown and had forcibly entered into it committing a criminal-trespass, and therefore the complainant approached the said accused persons making grievance for the alleged illegal action, whereupon both of them administered threat of death to the complainant by saying "do your worst, we are not going to handover the possession of the godown and will also dispose of the goods which were lying therein". As a result of this, a complaint came to be filed against both the accd. on 16th February, 1980, before P.S.I. Rajpipla. The police thereafter investigated the case and submitted a charge-sheet against the accused persons for the offences Under Sections 453, 114 and 506, I.P.C. to stand the trial.

On the said charge-sheet being submitted before the trial court on 7th April, 1980, a criminal case No. 679/79 came to be registered and summons were ordered to be issued to the accused.

Ultimately, before a trial can actually proceed ahead by examining any prosecution witnesses, on the ground of want of prosecution, the accused came to be acquitted by trial court by its judgment and order, dated 3rd October, 1980, giving rise to this acquittal appeal.

Mr. D. K. Trivedi, learned Addl. P.P. appearing for the State has made the following submission:

(i) That the impugned judgment and order of acquittal on face of it is illegal, and unjust. According to the learned Addl., P.P. very perusal of the Rojkam makes it abundantly clear that the accused are acquitted not for want of prosecution, but they in fact came to be acquitted for want of fair trial to the prosecution.

Now in order to appreciate the aforesaid contention of learned A.P.P., it is necessary first to have a look at the reasons for acquittal given by the trial Court, which are as under:--

i) That the prosecution has been given fairly sufficient time to keep their witnesses present, after recording the statement and framing the charge of the accused, but till today the prosecution has not cared to keep their witnesses present in the Court.

ii) Hence, in the interest of justice, and being an old case for want of prosecution, the accused are required to be acquitted.

Now let us see whether the aforesaid reasons given by the trial Court have any substance and are sustainable as borne out from the Rojkam proceedings. For this purpose, we will have to refer to the Rojkam proceedings in order to have the truthful account. First of all, it appears that the charge-sheet came to be submitted before the trial court on 7th April, 1980 and the summonses were ordered to be issued to the accd. to remain present on next date that is on 9th May, 1980. It appears that the said summons for one reason or the other could not be served upon them till of course 19th June, 1980, when they for the first time presented themselves before the court in response to the said summons. On this date the accused were given the police papers and the case was adjourned for framing charge on 24th July, 1980. On the said date the notings in Rojkam shows the statement of accd. Nos. 1 and 2 came to be recorded and both of them pleaded not guilty. Now it is interesting to note that though on 19-6-1980 case was adjourned for a charge on 24-7-1980, no such ''charge'' is framed is found on the record of the case. The case was thereafter adjourned to 22nd August, 1980. When the case was called out on the said date since the prosecution witnesses were absent though duly served, a bailable warrant of Rs. 1000/- was issued against them and the case was adjourned to 11th September, 1980. On 11th September, 1980, when the case was called out, the noting shows that bailable warrants issued to the Panchas and complainant had not returned and hence a fresh bailable warrant against them was issued. The case was adjourned to 3rd October, 1980. On 3rd October, 1980, the noting shows that when the case was called out, the bailable warrants of the witnesses had returned unserved. Therefore, the learned A.P.P. gave an application for time, which was rejected and trial court passed an order below Ex. 1 and acquitted the accused for want of prosecution.

On the perusal of the aforesaid Rojkam proceedings, it is very clear that by no stretch of imagination it can ever be said that the case was an old one. It is true that the trial Court proceedings began from the day the criminal case came to be registered on the basis of the charge-sheet submitted by the police on 7th April, 1980. But at the same time, it should not be forgotten that it was for the first time that on 19th June, 1980, that the accused presented themselves before the Court. Their statements came to be recorded on 24th July, 1980. Now so far as the crucial date for examination of the witnesses is concerned, the only material date would be 22nd August, 1980, a date on which for the first time case was adjourned for evidence. This is the date on which the prosecution witnesses were found to be absent though duly served and hence a bailable warrant came to be issued against the prosecution witnesses. The case thereafter was adjourned to 11th September, 1980. Again on 11th September, 1980 when the case was called out, the bailable warrants to the Panchas and complainant had not returned and therefore the fresh bailable warrants were issued against them and case was adjourned to 3rd October, 1980. When the matter was called out on 3rd October, 1980, the bailable warrants to the witnesses had returned unserved. It was under these circumstances that the learned A.P.P. had given an application for adjourning the case to a future date. Now if we peruse the summons issued to one Masidbhai Ismailbhai Shaikh, on the back of it, it has been stated that on inquiry, said Masidbhai was not found out and therefore further adjournment be sought. This endorsement is made by some police officer of Rajpipla. Same is a story as regards the summons issued to the complainant. It is interesting to note that he summons to the complainant Gulamrasul Ahmad Qureshi came returned with an endorsement by the Police Officer that on inquiry, said person was not found. This part of the evidence is difficult to gulp down and creates a serious doubt about the process serving agency. It is indeed unfortunate that the said agency is not kept under proper control and direction by the trial Court. If that is so, one wonders as to how the prosecution can be blamed of want of prosecution. The very fact that the bailable warrant to the witnesses were returned unserved was itself a good ground to adjourn the case to some future date. Not only that but how is it that the trial Court has felt itself powerless to inquire into the matter as to why in the first instance summons to prosecution witnesses did not return and in the second instance why the summons returned unserved. Could it not have occurred to the trial Court that the allegations levelled against the accused in the complaint were of a very serious nature; that the complainant must be keen to proceed with the trial; that the complainant was having a shop in the Rajpipla town itself and yet he could not be served with the summons or is it that whatever is to be submitted by the process serving agency is to be accepted as a gospel truth. Does the trial Court always require to be reminded of the provisions contained in Section 350 of the Code of Criminal Procedure, 1973, which taking stock of such situations regarding the recalcitrant witnesses has made the provision under the said section regarding the summary procedure for punishment for non-attendance by a witness? Does it require to be impressed upon the mind of the trial court always as to what are its powers when the process serving agency is found playing foul with the administration of justice? After careful perusal of notings in Rojkam I am satisfied and therefore I have no hesitation in holding that the case has been disposed of to say the least with an ''unholy haste. It can never be said that the prosecution had failed to discharge its duty in keeping the witnesses present. Whatever best within the power of the learned P.P. in charge of the matter has been done. Thereafter the matter was strictly between the court and the process serving agency. If the court does not exercise its proper control over the process serving agency, the prosecution cannot be solely blamed. How, under the circumstances, can it be said that the prosecution was given fairly sufficient time to keep their witnesses present after recording of the statement? If even after issuance of Bailable Warrant prosecution witnesses did not remain present in the Court, the court should not have felt reluctant to issue Non-Bailable Warrant to prosecution witnesses in the interest of justice. In any case if Bailable warrant issued to prosecution witnesses, had returned unserved, it was the duty of the court to adjourn the case to future date impressing upon the process serving agency to do its duty by providing more time. The trial court has just remained a spectator, doing nothing in its power. Under the circumstances it must be held that if this case has failed and accused came to be acquitted, it was not entirely due to want of prosecution, but the same was due to want of fair trial to the prosecution. It is further interesting to note that having regard to the allegation made in the complaint regarding a threat administered of killing the complainant, the case will squarely fall within Section 506(2) of I.P.C. for which the punishment provided is 7 years, and if that is so, it will be a warrant triable case. Though the trial court, when the case was called out on 19th June, 1980, has made a reference of framing charge on 24th April, 1980 what is actually found is merely recording the statements of two accused and their pleading not guilty. Such a short cut approach in side-posing of the matter is likely to shake the faith of the people in the administration of justice. Once the court takes cognizance of the offence and on perusal of the record it appears that the allegations made in the complaint are genuine and of the serious nature, then as far as possible, the court which is expected to do justice by redressing the wrong must examine the witnesses and documents in support of the allegations made in the complaint and then only on merit record acquittal or conviction. It is very easy to find fault with the prosecution, but the court has got to exercise proper and sound judicial discretion while deciding the cases. The difference between the trial and mock-trial must be present to the mind of trial court. The courts should not be oblivious to the fact that beyond the court room and its compound, a calculated and ingenious game to defeat the justice is going on. It is but natural that accused who has been rightly or wrongly framed-up in a criminal case makes desperate and frantic efforts to wriggle out from the clutches of law by fair and or foul means. The legal battles are entrusted to the learned advocate who are engaged to defend them in the court, but there are cases and cases where accused himself or through his friends, relatives and associates carry out extra judicial methods to salvage the situation whereby he can remain out of the reaches of law and courts. Efforts are made to protract the proceeding before the court, to win over and suborn the prosecution witnesses by coaxing, cajoling and browbeating prosecution witnesses, or the process serving agency. Graver the offence, the greater the struggle of the accused, and therefore, equally greater the aforesaid possibilities. In court of law doing justice cannot afford to have a child like ignorance. Justice has to be done not only merely with the aid of law books, witnesses and arguments, but the same is to be done with a human heart, concern for the society and watchful eyes full of worldly programatism. If this care and awareness is not shown by the trial court, then unwittingly it is likely to fall in a booby trap beast by aforesaid extra judicial agencies, out to defeat the justice. The rushed up acquittals like one in the present case is hardly doing any justice. Before the court acquits any accused on the ground of want of prosecution, it owes a duty to its own conscience by asking certain questions like (i) whether in the facts and circumstances of the case, the prosecution has been given fair and reasonable opportunity to examine witnesses i.e. whether a fair trial to the prosecution is given nor not? and or (ii) whether having regard to the gravity and seriousness of the offence is it a case which can be lightly disposed of? and or (iii) whether the process serving agency is honestly, sincerely and efficiently discharging its duty in serving the process ? and or (iv) if not, whether the court had activated itself and intervened to set things right in cases of service of summons, bailable warrants, non-bailable warrants when they are either not served or returned unserved, be it on accused or the prosecution witnesses? and or (v) whether the interest of an unrepresented complainant -- a real aggrieved party for whose benefit of getting justice the whole system of justice has been structurised is let down by play cool attitude of the investigating and prosecuting agencies during the course of trial was present to the mind of the court or not? (vi) whether the court was not committing a blunder in discharging its duty by over and misplaced emphasis on correctionable default of the prosecuting agency missing the real crux ''the cause of justice''? and or (vii) whether by such rushed-up acquittals on the ground of default of non-prosecution (correctionable ones) accused is earning undue illegal advantage of acquittal and the complainant is left high, dry and frustrated? Answer to all these questions has to be referred to and elicited from common sense, conscience and statutory provisions in order to have just and correct approach in the matter. When all these questions and answers combine together, it is only thereafter that a just, legal and proper order can be said to have been passed.

Mr. M. N. Desai, learned advocate appearing for the accused submits that the offence had taken place years back in the year 1980 and therefore it is neither desirable nor equitable nor in any way in the interest of justice to remand the case to the trial court. It is not possible to accede to this submission made by Mr. Desai for the simple reason that to accept, it would be putting premium over a wrong not only committed by two accused but also by a court. Why a citizen of the country should suffer injustice on account of patently illegal judgment and order of the trial court? And assuming without admitting that the prosecution was lethargic in keeping present and examining prosecution witnesses on fixed date before the court, why should a citizen suffer an injustice when on the one hand in certain cases, he has no direct locus before the court to ventilate and get redressed grievances as in the system which we have adopted i.e. where the State is in overall charge of the matter (no quarrel with the system), and on the other hand for whatever reasons the said system in a given case short-circuits itself during the investigation or post-investigation and during the trial stage. What control an ordinary citizen a real aggrieved unit of the Society has over the powerful investigating and prosecuting agencies. It is this situation which must be very much present to the mind of the court in deciding criminal cases. It is for this reason that becoming procedural and technical while doing justice, real aggrieved party is not lost sight of. It is for this reason that in the system which have adopted, the court has to be cautious of the fact that an individual citizen and society as a whole are the real beneficiaries under the Constitution and the system of justice under any legal system of the world. Individually a citizen may not have a direct locus in certain types of cases and those cases may be represented through the State. Under the circumstances, in a judicial system so structurised, the courts are more or less trustees of these beneficiaries. Therefore the question is not as much of finding fault with the system which the court cannot change it, but the question is how best to focus and adjust the correct attitude of the court on an unrepresented aggrieved individual and a society as a whole so that they can get the substantive and real justice. Justice is an act divine and the rushed up acquittal or the scribbled judgment is no answer to it.

In the result, the appeal is allowed. The impugned judgment and order of acquittal passed by the trial court is quashed and set aside. The matter is remanded to the trial court with a direction to proceed ahead by affording fair and reasonable opportunity to examine prosecution witnesses and to dispose of the case on merits according to law. Mr. Trivedi, learned Addl. P.P. assures this court that he will instruct the investigating Officer as well as the learned P.P. in charge of the matter to see that the processes are effectively served in order that the witnesses are examined by the court. Office is directed to send R & P to the trial court immediately.