KISHANLAL SHOHANLAL TAPARIA Vs. SHANKERBHAI REVABHAI PATEL

JUDGEMENT

(1.) The petitioners who are the original accused, have by this Misc. Criminal Application, brought under challenge the impugned order issuing process against them by the learned J. M. F. C., Kalol passed on the basis of the complaint filed by the respondent No. 1 herein for the alleged offences punishable under Secs. 406, 420 and 114 of the Indian Penal Code and registered as a Criminal Case No. 491 of 1990 inter alia praying for quashing and setting aside the same.

(2.) Perused the complaint. Heard the learned Advocates appearing for the respective parties. At this stage on bare perusual of the complaint, it is indeed not possible for this Court either to reach a definite conclusion that a dispute between the parties is purely and exclusively of the civil nature and/or that the allegations made in the complaint prima facie even does not disclose any offence. Thus, taking into consideration the facts alleged in the complaint two facts essentially emerge therefrom ; viz., - (i) the offences alleged against the petitioners under Secs. 406, 420 and 114 of the IPC are warrant triable cases to be tried as provided in Chapter XIV of the Code ; and (ii) in particular, the present complaint being otherwise than on the police report that is to say, by the private complainant himself in the Court, the same would be specifically governed by Secs. 244 and 245 of the Code. For ready reference the said two provisions are reproduced hereunder :- Section 244

(3.) Now on persuing the aforesaid Sec. 245(2) of the Code, it is very clear that there is indeed nothing to prevent the learned Magistrate from discharging the accused at any previous stage of the case, if he considers the charge to be groundless. When such is the clear-cut legal provision, it is for the accused to make a suitable application praying for the discharge and satisfy the concerned Court to secure the same instead of rushing of this Court to quash the process which as already stated above he is not entitled to. In this view of the matter, merely because by the time stage of framing the charge comes, the accused has to attend the Court for indefinitely long period till the prosecution evidence is recorded and is over, is hardly a ground to interfere under Sec. 482 of the Code, when on reading the complaint at this stage it cannot be said that the process issued pursuant thereto is, indeed an abuse of the process of law. Of course, this Court is quite conscious of the fact that having regard to the provisions contained in Sec. 244 of the Code, when the accused appears or is brought before the learned Magistrate, the learned Magistrate is required to proceed to hear the prosecution and take all such evidence as may be produced in support of the allegations made in the complaint. This further means that by the time the stage arrives for the accused to pray for discharge, he has to invariably attend the Court, time and again at the time when the prosecution evidence is recorded for the purpose of framing the charge. This Court is also further conscious of the fact that many a time, false, frivolous and vexatious complaints are filed in the Court only with a view to harass the innocent persons. This Court is also further conscious of the fact that these days firstly because of frequent indiscreet adjournments and strike calls; secondly, because of some sick-note of either the learned A.P.P or the learned Advocate appearing for the accused; or thirdly, because the Court itself sometimes overburdened with the back-log of cases to be attended and some other reasons are not available, the cases are just not conducted on the appointed dates and as a result, the accused has to visit again and again to the Court. Such sort of indefinite frequent compulsory visits to the Courts surely causes great deal of physical, mental and financial distress . It is indeed quite unimaginable as to what would happen to the accused, persons who are just dragged to the Courts from a considerable long distance like the one in the instant case .Further, not only this but despite regular attendance in the Court, if sometimes due to circumstances entirely beyond the control of the accused, he remain absent, many a times the Court act quite hastly issuing even non-bailable warrant against him adding to his misfortune. This in a given case would be virtually nothing less than an unwarranted pre-trial punishment. In other words, mere accusation would entail physical, mental and financial torture, which neither law has envisaged nor the Court has a right to inflict : inadvertently even. The reason is, in case if ultimately the complaint turns out to be false, how indeed the concerned Court is to compensate or make good the unwarrnated hardships and sufferings of the accused because in some cases even the exemplary cost would be quite inadequate . In this view of the matter, if at some later stage, merely because some remedy is provided by virtue of Sec. 245(2) of the Code for discharge, if at inital stage, by virtue of Sec. 244 if the accused persons have to compulsorily attend the Court, for indefinite period while prosecution evidence is being recorded till the stage for framing of charge, that would surely to that extent put them to severe untold hardships and inconveniences . And in that case, what indeed would be the fate and face of the "Justice" if ultimately, the accused despite having undergone all sorts of hardships and inconveniences, the learned Magistrate finds the case against him to be groundless and discharges him . How such predicament and the miserable lot of the accused persons are to be compensated ? Who would indeed give them back their precious time lost in attending the Court proceedings : apart physical, mental and financial sufferings undergone - is a question which shall have to be kept at the back of mind by every Court which many a time is found to be mechanically issuing the process and thereafter indiscreetly adjourning the case from dates to dates to the utter embarrassment of the accused persons. In order to meet with such patently unjust harsh and merciless situation wherein on mere accusation, many a times groundless and false, the accused becomes victim of oppressive operation of the law, condemned before convicted, some serious thinking is required to be done. To bear with such a tricky situation is simply unbearable for any accused more particularly when he is falsely implicated to wreck personal vengeance abusing the process of the Court, and accordingly, the accused atleast deserve to be liberally exempted from appearing before the Court on service of the summons and also at the time of recording the preliminary evidence for the prupose of framing the charge. In fact, these days, on receiving the complaint, be it a summons case or a warrant triable case, before issuing the process pursuant thereto, the Court should bear in mind the aforesaid glaring aspects of uncalled for hardships and inconvenience to the accused persons and accordingly, while issuing the process, it should also make it clear alongwith the process from itself that (i) in case, if it is a summons triable case, the accused can appear through the learned Advocate and make his submissions whether the complaint prima facie discloses any offences or not "as the order issuing process is an interim order and not a judgment which can be varied or recalled." The fact that the process has already been issued is no bar to drop the proceedings if the complaint on face of it does not disclose any offence against the accused, as held by the Supreme Court in case of K. M. Mathews v. State of Kerala, reported in AIR 1992 SC 2206 ; Similarly (ii) if it is not a warrant triable case, the accused may in the first instance be permitted to appear through his learned Advocate and thereafter till the recording of prosecution evidence is over, and he applies for discharge under Sec. 245 (2) of the Code, unless of course in some cases at some stage the learned Magistrate feels that the presence of the accused is unavoidable while recording the evidence. Unless of course if ultimately, prima facie, case is made out to frame the charge then thereafter at trial, the accused is supposed to remain present whenever the prosecution evidence is being recorded, unless for some genuine and convincing reasons grant exemption to the accused. This sort of just and expedient relief exempting the accused in a given case will not only surely frustrate the device of some scheming unscrupulous complainants out to unduly harass innocent person but the same as well further save the Court from being inadvertently even instrument in hands of the spiteful complainant of unjust oppression of the accused by falsely dragging him into the Court. In case, the Court accepts the application for discharge, then to that extent, the accused would be saved from harassment and inconvenience of attending the Court. In this view of the matter, till the time in a summons case, on the date summons is made returnable and thereafter, in case of warrant triable cases, till the charge is framed, it shall be the duty of the Court to exempt the accused from appearing before the Court unless facts of the case are gross and warrant otherwise. This should be scrupulously followed with a view to see that the Court procedure is not abused as a lever to wreck personal vengeance upon the accused through the instrumentality of none other than the Court itself. Of course, in case if the complaint makes out a case that the presence of the accused before the Court is must at the time of recording evidence of the parties, then the Court may examine the said aspect and if satisfied pass an appropriate order as desired by the Compalinant. Nodoubt as per the requirement of Sec. 244 of the Code, on service of the summons, the accused has got to appear before the Court and thereafter when the prosecution evidence is recorded but this Court feels that instead of mechanical application of the Section, the appearance of the accused can reasonably be deferred or suspended for further some time to save him from the aforesaid hardships and inconvenience to that extent and accordingly in the overall interest of justice a little judicial discretion is required to be exercised regarding appearance of the accused on service of the summons. One cannot over-look the fact that "Justice" does not mean "Justice to the complainant only" that is to say entertaining his complaint and mechanically issuing summons, asking the accused to remain present on a particular date. To get just, fair and reasonable treatment at the hands of the Court - is also equally right of the accused and thereby "justice" to him at the hands of the Court. In this view of the matter, the Court mindful of holding in balance the scales of justice can ill-afford to overlook this glaring aspect of unfair trial to the accused - the otherside of the coin of Justice ..