YAMIN Vs. ZAFAR MOHAMMAD

JUDGEMENT

(1.) This is an acquittal appeal in a case started on a private complaint by Modh. Yamin complainant appellant. The impugned order was passed by Shri A. C. Kher, Magistrate 1st Class, Delhi, on 10th February 1966 and reads as under : -

(2.) The complaint under sections 323, 324, 325, 323 and 452, Indian Penal Code, was filed on 30th January. 1965, against two accused persons Zafar Mohammad and Mohd. Akal, in which it was alleged that accused No. 1 had beaten the complainant mercilessly after using fifthy language because of a customer having come to the complainant's shop after visiting the shop of the said accused the matter was reported to the Police Station, Jama Masjid, but the police declined to take any action. A copy of the report was attached with the complaint. Since that incident, the two accused persons, who are running a common shop of motor parts at a few paces from that of the comkplainant in Kabari Bazar, Jama Masjid, have been feeling inimical towards the complainant. On 16th January, 1935 at It AM, when the complainant was working in his shop, the two accused persons arrived there and all of a sudden gave a blow with an iron rod on his head, as a result of which the complainant became unconscious. They also beat the complainant with the same iron rod on his leg and at his back. Some persons, including the neighbouring shop-keepers, arrived at the spot and saved the complainant from the clutches of the accased. This matter was reported to the Police Station, Jama Masjid by one Mohammad Babu, an eyewitness to the occurrence. The complainant was taken to the Police Hospital and thereafter was sent to Irwin Hospital, where he remained from 16th January, 1965 to 27th January, 1965. This complaint was accompanied by a list of five witnesses. It appears that the matter was referred for enquiry under section 202 Criminal Procedure Code, and Shri V.K Bhalla, Sub Divisional Magistrate on 18th September, 1965, alter going through the evidence of four witnesses produced by the 143 complainant, came to the conclusion that the injuries suffered by the complainant were simple, caused, by some blunt weapon, with the result that only a case under section 323, Indian Penal Code, was made out. With this opinion, the file was submitted to the learned Additional District Magistrate (Central) and the complainant was also directed to appear before the said A.D.M. on 20th September, 1965. It is worth pointing out that in the course of enquiry under section 202, Criminal Procedure Code, the first two witnessess were examined on 20th March, 1965, the third witness was examined on 16th April, 1965 and the fourth on 9th August, 1985. From the oder-sheet, I find that on 19th August, 1965, the Magistrate had ordered the complainant to appear before the Additional District Magistrate on 13th September, 1965, but the file was directed to be placed before the Court for a suitable order on 6th September, 1965. This order is obviously difficult to understand, On 13th September, 1965, the complaint was stated to be present, but the presiding officer was stated to be busy with emergency work, with the result that the file was directed to be placed before the Court for suitable orders on 18th September, 1985. It was added that the file should be sent to the Additional District Magistrate on 20th September, 1965. On 18th September, 1965 again, the complainant was present with his counsel, but the Presiding Officer was again busy with some emergency work, with the result that the case was adjourned to 20th September, 1965 for suitable proceedings. It was thereafter that the papers were according to the order, forwarded to the Additional District Magistrate. On 20th September, 1965, the complainant was present with his counsel and it was noted that the file had been sent to the Additional District Magistrate, but its receipt had not yet arrived. The file was thus ordered to besent on 27th September, 1965 and the complainant was also directed to appear in the Court of the Additional District Magistrate on that date. This order is again difficult to understand. On 27th September, 1965, Shri R Jain, who was presumably A. D. M., made an order that the accused were to be proceeded against only under section 323, I. P. C. The case was adjourned to 15th October, 1965. On that date, the complainant was present, and so were the accused persons, who were released on bail by Shri R. Jain. The case was transferred to a Magistrate who was to hold the trial and the parties were directed to appear in the transferee Court on 19th October, 1965 On that date, Shri A. C Kher, Magistrate 1st Class, adjourned the case to 24th November, 1965 tor evidence, the complainant being directed either to bring his witnesses with him or to summon them. He was required to deposit the process-fee within two days. On 24th November, 1965, the complainant ana both the accused were present, but a request was made by the complainant's counsel for adjournment because of his being busy in the High Court. The case was accordingly adjourned to 1st December, 1965 for evidence. On that date, however, though the complainant and the accused were present, the case could not be taken up on account of, what is described by the learned Magistrate to be, rush of work. The case was thus adjourned to 22nd January, 1966. On that date, in the presence of the compinant and the accused persons, the statement of one witness was recorded, No other witness being present, the case was adjourned for the remaining evidence to 10th February, 1966. The impugned order made on 10th February, 1966 has already been reproduced. 144

(3.) It is very strongly argued on behalf of the complainant that the learned Magistrate has erred in acquitting the accused and not waiting, at least for some time, for the complainant to appear and prosecute the case. According to the counsel's argument belore us, the complainant had just gone to the W. C. for a few minutes and the case was disposed of in his absence by acquitting the accused persons. This order is descrided to be contrary to the provisions of section 247, Criminal Procedure Code, and also violative of the instructions contained in the High Court Rules & Orders, Vol. III, Chapter 1 F. Our attention has also been drawn to Ram Narain v. Mool Chand, Single Bench decision of the Lucknow Bench, and to Naresh Prasad v. Mahavir Singh another Single Bench decision of the Allahabad court, in support of the appeal.