Ved Vart Shashtri vs Virender Singh

S.K. Jain, J.

Virender Singh respondent herein instituted a complaint under Section 500, Indian Penal Code against Ved Vart Shashtri and Mahashya Bharat Singh Saini, in the Court of Additional Chief Judicial Magistrate, Rohtak on 18.4.1988. The respondents were summoned and the case fixed for precharge evidence of the complaint on 16.1.1989 for the first time and t thereafter on the following dates :

25.4.1989

4.7.1989

4.10.1989

11.1.1990

6.7.1990

31.1.1991

8.4.1991

17.7.1991

Then on 11.10.1991, the complaint was dismissed and the accused were discharged for want of evidence. Feeling aggrieved, the complainant preferred a criminal revision before the learned Sessions Judge, Rohtak who vide his judgment of January 30, 1992 allowed the petition and directed the learned Magistrate to fix a date for recording evidence and made it incombent upon the complainant to produce his precharge evidence on that date. This judgment of the learned Sessions Judge, Rohtak, has been impugned in this petition.

Mr. Ram Avtar Singh, learned Counsel for the petitioner has argued firstly, that as may as nine opportunities, spread over a period w.e.f. 1.1.1989 to 11.10.1991, were afforded to the complainant but he neither summoned any of his witnesses nor supplied a list thereof nor had himself stepped into the witness box to make as statement and, therefore, the learned Sessions Judge had legally erred in accepting the revision petition. His second submission is that the case had to be tried as a summons case but the procedure of a warrant case was followed. The moment the respondents were discharged, it being a summon case, such discharge tantamounted to acquittal and no revision was maintainable.

In reply, Mr. S.S. Ahlawat, learned Counsel for the respondents has argued supporting the impugned judgment. He has further submitted that it was not argued before the learned Sessions Judge that the revision was not maintainable.

I have heard the learned Counsel for the parties. A perusal of judgments datd 11.10.1991 and 30.1.1992, of the Additional Chief Judicial Magistrate and Sessions Judge, respectively, would show :

(i) that the complaint was instituted on 18.4.1988;

(ii) that as many as nine opportunities, spread over a period w.e.f. 25.4.1989 to 11.10.1991 were afford to the complainant to examine his precharge evidence but he had failed to do so. No application to summon any witness was filed nor any list of witnesses whom he intended to examine had been placed on record. Even the complainant had not stepped into the witness box to make a statement;

(iii) that local Bar was on strike on 11.10.1991 but the complainant along with his counsel was present in the Court;

(iv) no request on behalf of the complainant was made on that date to the learned Additional Chief Judicial Magistrate, that his statement be recorded;

(v) the complaint was dismissed and the accused discharged; and

(vi) the learned Sessions Judge took into consideration the factum of the local Bar being on strike on 11.10.1991 and concluded that it did not supply a ground for another adjournment.

In view of the above facts and circumstances I do not find myself in agreement with the learned Sessions Judge in concluding that the complainant deserved to be granted still another opportunity to lead precharge evidence.

Now on to the second argument. In para 8 of the impugned judgment the question of maintainability of the revision petition was discussed by the learned Sessions Judge though from a different point of view. Here in this petition, for the first time the learned Counsel for the petitioner has raised a legal objection as mentioned above. There is no denying of the fact that the complaint was to be tried as a summon case and it is evident from the orders, copies whereof have been placed on record, that the procedure of a warrant case was being followed. In Bal Ram Suraj v. Dev Raj Dhiman, 1988(1) CLR 677, it was held by this court that in a case instituted on a complaint and triable as a summons case, if wrongly tried as a warrant case by the Magistrate and he dismisses the complaint and discharges the accused, it would tantamount to acquittal of the accused and not merely his discharge and revision against the same was not maintainable. Undisputedly, in this case, the complaint was instituted and it was triable as a summons case but the procedure adopted was that of a warrant case which was patently illegal. The revision was, however, entertained because this point was not argued before the learned Sessions Judge.

In view of the above discussion, I am of the view that the impugned order passed by the learned Sessions Judge on 30.1.1992 is not sustainable. It is, therefore, set aside and that of the learned Additional Chief Judicial Magistrate, is upheld. This petition is allowed.