V K GOPAL Vs. STATE

JUDGEMENT

(1.) ANIMADVERTING upon the judgment dated 01.06.2006 passed by the learned Judicial Magistrate No. I, Dharmapuri, this criminal revision petition is focused.

(2.) A summation and summarization of the relevant facts, which are absolutely necessary and germane for the disposal of this criminal revision would run thus:(i) The police laid the police report in terms of Section 173 of the Code of Criminal Procedure as against the accused for the offences under Sections 147,363,342,384 and 506(i) IPC since the accused pleaded not guilty, trial was conducted.(ii) On the side of the prosecution, P.Ws.1 to 5 were examined and Exhibits P-1 to P-7 were marked. On the defense side, no oral and documentary evidence was adduced.(iii) Even though the revision petitioner/complainant LW1 and the injured witness L.W.2 were not examined the case was closed after examination under Section 313 of the code of Criminal procedure. After hearing the prosecution side and the defense side, the lower Court acquitted the accused.(iv) Being aggrieved by and dissatisfied with such an order or acquittal, this revision is focused on various grounds, the warp and woof of them would run thus:(v) The lower court without even examining the petitioner/complainant L.W.1 and the injured witness L.W.2, simply closed the evidence and, acquitted the accused.

(3.) THE point for consideration is as to whether there is any perversity or non application of law in conducting the trial by the lower Court and acquitting the accused?6. THE learned counsel for the revision petitioner would submit that the dictums in the Best Bakery case should not be taken as the one applicable to all cases for remanding and only in deserving cases, such remittance is required. In this connection, he would cite the decision of the Hon-ble Apex Court Satyajit and Banerjee and Others v. State of West Bengal and Others AIR 2005 SC 416: (2005) 1 SCC 115: (2005) SCC (Cr) 276. An excerpt from it would run thus:-24. Without going into the correctness of all the observations made by the High Court in the impugned judgment, we find it necessary to clarify that the High Court ought not to have director the trial Court to hold a de novo and take a decision on the basis of the so-called -suggested formula- THE High Court in its concluding part of the judgment does state that any observation in its judgments should not influence the mind of the trial Court but, at the same time, the High Court directs the trial Court to take -a fresh decision from stage one- and on the basis of the -suggested formula.- Learned counsel for the accused is justified in his grievance and apprehension that the aforesaid observations and directions are likely to be mistaken by the trial Court as if there is a mandate to it record the verdict of conviction against the accused regardless of the worth and weight of the evidence before it.- 7. THE learned counsel for the accused placing reliance on the said judgment as well as the -evidence on record would develop his argument that to the extent possible, that the prosecuting agency as well as the Court tried to secure and examine the de facto complainant as well as the injured, but their presence could not, be secured. THE alleged injured in this case is a man, who is, heavily indebted and he was absconding. Hence, this is a fit case wherein this Court could refrain from exercising its revisional power.8. A plain perusal of the records would reveal that the learned Additional Public Prosecutor made endorsement in the list of witnesses submitted by the prosecution as under:-As per VAO Certificate, L.W.2, dispensed. Prosecution closed.-It is appears as though, on the prosecution side VAO certificate was produced and based on that, the APP concerned, made such an Endorsement. THEre is nothing to indicate either in the records or in the Judgment that the learned Magistrate took appropriate steps to get the Summons served.9. It is a trite proposition of law that a Magistrate should hot be a silent spectator leaving the prosecution and the defence to simply fight out the case before the Court. It is the role of the learned Magistrate to secure the presence of the witnesses/taking into account, the instructions issued by the High court also that there should be periodical monitoring of service of summons. If there is difficulty in securing the presence of the witness, the higher officials in the Oolice Department should be addressed through the Principal District Judge concerned and the Principal District Judge also is expect to help the Magistrate in this regard. Adhering to those procedures, the main witness L.W.1 and L.W.2 were not attempted to be secured before the Court. However, L.W.2 the injured has filed this revision challenging and impugning the method and manner in which the trail was conducted.10. THE learned counsel for the accused would submit that if the matter is remitted back to the lower Court, it will give an indication to the lower Court that it has to examine some how or other L.W.2 and convict the accused and that would prejudice the right of the accused.11. THE learned Addition Public Prosecutor would correctly by way of torpedoing and pulverizing such argument has pointed out, that in such a ease, no de facto complainant can file revision at all as against the order of acquittal.12. In this case, due to civil ramifications, this complaint emerged and as such the learned Magistrate is expected to concentrate carefully on the evidence, whether it is a false case or a genuine case.13. I am also fully aware of the fact that whenever there is a case having civil ramification, the de facto complainant the alleged injured party would try to embellish also. Simply because the matter is remitted back for examining further witnesses, it should not be taken by the lower Court as the one sent by the High court for convicting the accused.14. As such with this remark, I am of the opinion that the order of the lower Court should be set aside and accordingly, it is set aside with a direction that the evidence should be additionally taken along with the available evidence by securing the presence of L.W.1 and L.W.2, by resorting to all legal means after such examining of witnesses and also recalling the investigating officer in the regard and after examination under Section 313 of Code of Criminal Procedure and hearing both sides, reasoned judgment should be passed untrammeled and uninfluenced by any of the observations made in this order.15. With the above observation, this Criminal revision petition is allowed.