PATEL UPENDRABHAI SHANKARBHAI Vs. TADVI AMBUBHAI MOHANBHAI

JUDGEMENT

(1.) The order passed by the learned Judicial Magistrate (First Class) at Sankheda on 16th July 1985 dismissing the complaint and thereby acquitting the accused (respondents Nos. 1 to 27 herein) on the ground of absence of the complainant is under challenge in this appeal at the instance of, the original complainant by special leave of this court under Sec. 378 (4) of the Code of Criminal Procedure, 1973 (the CrPC for brief).

(2.) It is not necessary to set out in detail the facts giving rise to this appeal. It may be sufficient to note that some untoward incident occurred at the time of festival of Holi on 6th March 1985 between the appellant-complaint on the one hand and respondents Nos. 1 to 27 herein on the other. The appellant herein was aggrieved by the way he was treated by respondents Nos. 1 to 27 herein at the relevant time. He therefore approached the police for filing his complaint of the incident in question. It appears that the police did not accept his complaint. He thereupon filed his complaint in the court of the Judicial Magistrate (First Class) at Sankheda on 25th March 1985 charging respondents Nos. 1 to 27 herein with the offences punishable under Secs. 144, 146, 147, 148, 149, 153, 153-A, 159, 160, 352,323,504, 506(2), 511 and 114 of the Indian Penal Code, 1860 (the IPC for brief). It came to be registered as Criminal Case No. 487 of 1985. The learned trial Magistrate by his order passed therebelow on that very day of 25th April 1985 ordered issue of summons with respect to the offences punishable under Sections 323, 504 and 114 of the IPC. It appears that the matter was kept for further proceeding from time to time from 10th May 1985. It appears that in the meantime plea of the accused was recorded on 29th May 1985. No accused pleaded guilty to the charge. It later on came to be adjourned to 16th July 1985. The complainant did not appear and he appears to have sent his sick report through his advocate. It is at Exh. 31 on the record of the trial court. It appears that, in response thereto, an affidavit was filed by respondent No. 13 herein to the affect that the appellant herein was not really sick and his sick report was not genuine. It is at Exh. 32 on the record of the trial court. It may be mentioned at this stage that the sick report submitted on behalf of the appellant herein in the trial court was accompanied by a medical certificate. Despite that position, by his order passed below the complaint on 16th July 1985 in Criminal Case No. 487 of 1985, the learned Judicial Magistrate (First Class) at Sankheda dismissed the complaint on account of absence of the appellant-complainant and acquitted the accused of the offences mentioned in the complaint. That aggrieved the complainant. He has therefore by special leave of this court invoked its appellate jurisdiction under Sec. 378 (4) for the CrPC for questioning the correctness of the aforesaid order passed by the learned trial Magistrate.

(3.) Learned Advocate Shri S.D. Patel for the appellant is right in his submission that the correctness of the medical certificate could not have been doubted merely on the strength of some affidavit filed by and on behalf of an interested accused without giving an opportunity to the original complainant with respect to the contents of the affidavit in question or without examining the author of the medical certificate accompanying the original complainant's sick report. When a person reports sick and he produces a medical certificate in support of his sick report, ordinarily the court has to accept the same without demur unless the court is convinced that the medical certificate is not genuine. Before coming to the conclusion that the medical certificate is not genuine, it would be necessary to make inquiry in that regard. Merely an affidavit of an interested accused should not enable the presiding officer of a criminal court to jump to a conclusion that the medical certificate is not genuine without giving an opportunity to the original complainant for explaining the contents of the affidavit or without giving an opportunity to the medical officer with respect to the contents of the certificate. To doubt the genuineness of a medical certificate without giving an opportunity about its correctness to the concerned person or the concerned medical officers would tantamount to condemning unheard by passing strictures against the person reported to be sick and more particularly against the medical officer issuing such certificate. It is a settled principle of law that no persons should be condemned unheard. To condemn a person unheard by relying on some affidavit. Of an interested accused would not be a correct approach in the eyes of law. Such an approach on the part of a presiding officer of a court cannot be sustained in law and it has to be deprecated in terms. The approach and the attitude of the learned trial Magistrate as reflected in his impugned order can therefore never be countenanced and it cannot be sustained in law. It appears that the learned trial Magistrate at the relevant time was suffering from the disposal mania and he wanted an excuse or a pretext to dispose of the cases on merits or otherwise. In this case, he has not chosen to examine the merits of the case for disposing it from his file. This approach on the part of the learned trial Magistrate has to be disapproved without mincing words.