LACHHMAN SINGH Vs. MAHINDER SINGH

JUDGEMENT

(1.) -The petition under Sec. 397 read with Sec, 482 of the Code of Criminal Procedure is directed against the impugned order dated 242 May 13, 1987 passed by Sh. Bharat Bhusban. Addl. Chief Metropolitan Magistrate, New Delhi disimissing the complaint of the complainant Shri Lachhman Singh. Inspector filed by him for the Central Excise & Customs, being an Inspector of that department for the offence under Sec.l35(1)(a) of the Customs Act 1962 and Sec. 5 of the Imports and Exports (Control) Act, 1947 for the three accused respondents being concerned in an attempt at fraudulent evasion of duty payable on the goods valued at Rs. 15,07.600.00 . The three accused-respondents were summoned by the Additional Chief Metropolitan Magistrate to appear before him for the aforesaid offences for January 23, 1985. All the three accused put in appearance. The petitioner was exempted from personal appearance and he was allowed to appear through his counsel, Shri Satish Aggarwal Advocate, through whom he appeared on a number of dates to which the case was adjourned from time to time for recording of the pre-charge evidence of the complainant. On some in between dates one witness of the complainant namely, Lachhman Singh had appeared whom, it appears that the complainant wanted to examine first of all, but his statement was not recorded on those dates. On August 14, 1986 the statement of Lachhman Singh Public Witness who was present was not recorded and the case was adjourned November 12, 1986 on the observation that doucumens were not on the file and the case was, therefore being adjourned. On November 12, 1986 again one witness of the prosecution was present. There was, however, a request from the side of the complainant as the witness of the complainant who appeared had to go out of station. The case was adjourned to March 4, 1987 and March 5, 1988 for recording the entire evidence of the prosecution and it was also provided in the order that the documents sought to be produced by the complainant in the enquiry of the case must be filed within ten days thereof. On March 4, 1987 against Laehhman Singh was present. No document was, however, filed by the complainant on the record of the case. The case was adjourned to April. 9,1987 an the complainant was directed to file copies of the documents sought to beproved in evidence by that date. The date of March 5, 1987 was cancelled. No document was filed by the complainant upto Apirl 9, 1987 or thereafter upto May 13, 1987 on which date the complaint was dismissed. On April 9, 1987 again Lachhman Singh, Public Witness I was present. The case was, however, adjourned to May 13, 1987 observing that Lachhman Singh could not be examined in the absence of documents. The exemption of the complainant from personal appearance on the date of hearing was cancelled and the complainant was directed to appear in person on each and every date of hearing in future. On the adjourned date of May 13, 1987 the complainant did not appear in person before the court However, his counsel Shri Satish Aggarwal Advocate put in appearance from the side of the complainant before the court. All the three accused-respondents were also present with their respective counsel. The complaint was dismissed by the learned Additional Chief Matropolitan Magistrate It is stated in the impugned order that the complaint has been pending for the last more than two years and no witness was examined by the complainant till then and the exemption of the complainant from personal appearance had also been cancelled earlier and that on that date i.e. on May 13, 1987 even the the complainant had not appeared in person, nor were the documents filed in the court. Under the circumstances the complaint was dismissed in default due to non-prosecution.

(2.) A preliminary objection was raised by Mr. Harjinder Singh, learned counsel for respondents No 1 and 2, that the State was a necessary party to this petition and the State not having been impleaded as a corespondent alongwith the three accused-respondents, the petition was liable to be dismissed on that ground. It was submitted that whenever any criminal matter is disposed of by a court, including a complaint case, and when a proceeding is instituted against any order of the criminal court disposing of a criminal matter, including a complaint, the State has to be impleaded as a party to the proceedings wherein the order of the criminal court is challenged. I do not find any merit in this submission. Mr. Harjinder Singh was unable to refer me to any provision either in the Code of Criminal Procedure or in the High Court Rules & Orders of this Court enjoining any such obligation on the part of the petitioner. The present one is a complaint case The State was not a party to the proceedings before the lower court. The complaint was dismissed at the initial stage of the holding of the pre-charge enquiry. Under the circumstances I am of the view that the State could not be considered to be an interested party in the result of the present petition as filed in this Court, either way, namely whether the petition is dismissed and the complaint of the complainant remains dismissed or this petition is allowed and the complaint of the complainant is restored and further enquiry in the same is directed to be held. To my mind, the State, in a complaint case,is unconcerned till charge is framed against the accused person. The position may, however, be different when charge is framed in a complaint case and in that case the State steps in and becomes a party interested in the further litigation. Merely because an order of a criminal court is in question before a higher court, to my mind, by itself does not make the State a necessary party to that proceeding and I see no basis for any distinction in this regard between an order passed by a criminal court and an order passed by a civil court. The question is not as to which court namely, civil or criminal court, passed the order, but it is the one as to who are the persons concerned with the litigation. I accordingly reject the said objection of Mr. Harjinder Singh.

(3.) Now coming to the merits of the petition, a close reading of the impugned order shows that the complaint was not dismissed for the nonappearance of the complainant in person simplicitor under Sec. 249 Cr.P.C. It was dismissed for non-prosecution, which in turn was inferred from three alleged circumstances viz (i) that the complainant had not examined any witness till then, (ii) he had not filed the documents which were sought to be proved in evidence at the enquiry despite a direction of the court to that effect and (iii) non-appearance of the complainant in person on the date even though his counsel was present. As regards the first ground for the alleged non-prosecution; viz. that the complainant had not produced any oral evidence on the record, the complaint was not even fixed for recording of the evidence of the complaint on 13th. May, 1987 The case was fixed only for filing of the copies of the documents on which the complainant may be relying as was directed by the court. It appear that the court was of the view that the complainant should first file copies of such documents on the record of the case and it was only thereafter that he should proceed with the examination of his witnesses. As stated by me above the record reveals that the complainant had in fact offered to give his statement to the court as a witness in the enquiry earlier, but thrice he was sent back without recording his evidence viz. on August 14, 1986, March 4, 1987 and April 9, 1987 on the ground that be could not be examined till be had filed copies of the documents as relied on by him in the case. It is thus, obvious that there was no question of the complainant's failure in producing his oral evidence in the court upto May 13, 1987. The complaint was therefore not liable to be dismissed for non-production of evidence by the complainant till 10th. May, 1987. This ground was thus not available as a circumstance to show that the complaint was not persuing his complaint diligently or with promptitude.