DATTATRAYA DAGDUJI BORKUTE Vs. MOHANLAL CHANDMAL PHAPAL

JUDGEMENT

(1.) THE impugned orders challenged in this Criminal Writ Petition are the order of the Judicial Magistrate, First Class, Telhara dated 18-1-1995 in Criminal Case No. 175 of 1989 (Annexure-IV) and the Judgement of the learned Additional Sessions Judge, Akola dated 13-3-1995 in Criminal Revision No. 56 of 1995. It need hardly to be mentioned that the challenge is as per Article 227 of the Constitution and under Section 482, Cr. P. C. The petitioner filed a private complaint before the learned Magistrate, Telhara. The learned Magistrate took cognizance under Section 418 read with Section 34, I. P. C. The complainant tiled the complaint in the year 1983 which on transfer was renumbered of the year 1989. The question arose like this. While recording, the complainant (sic) he moved Annexure-I Application stating that P. W. 7 has to attend Election duty and hence is unable to appear before the Court and, therefore, the case has to be adjourned, another application Annexure-II was moved by the complainant for adjournment on the ground that three witnesses mentioned therein could not be present on the said date. The learned Magistrate by his order dated 18-1-1995 (Annexure -IV) rejected both the applications and posted the case for recording statements of accused under Section 313, Cr. P. C. It is submitted by Shri Udhoji, learned counsel for the petitioner that the rejection of these applications has brought injustice and the order is perverse; therefore, the said order has to be corrected by invoking the inherent jurisdiction of this Court under Section 482, Cr. P. C. as well as the jurisdiction under Article 227 of the Constitution of India. What is highlighted by the learned counsel for the complainant/petitioner is that the learned Magistrate when stated that the complainant was prolonging the litigation did not actually go into the ground urged on behalf of the P. W. 7. It was maintained by Shri Udhoji that, even though the learned Magistrate thought that the application could not be allowed, the learned Magistrate under law was bound to issue coercive steps like issue of warrant to secure their attendance as they were already served. He did not thus exercise the jurisdiction vested in him and, therefore, illegality has been committed. The learned counsel Mr. N. S. Bhattad appearing on behalf of the respondents maintained that the petitioner after tiling the complaint was not diligent in prosecuting the case and was deliberately getting adjournments to prolong the litigation. He maintained that issue of warrant by the Magistrate is not obligatory as maintained by the learned counsel for the petitioner, but is only discretionary. He maintained that the learned Magistrate can issue warrant only after assigning reasons for the issue of the same. It is pointed out by him in this case though applications for adjournment were moved, the complainant never moved any application for issue of warrant to the witnesses who were not present, but were served. In such circumstances, it was maintained by the learned counsel Mr. N. S. Bhattad that the impugned order does not suffer from any infirmity, which would call for interference by this Court under Section 482, Cr. P. C. or under Article 227 of the Constitution in its extraordinary jurisdiction.

(2.) THE question now for consideration is whether any illegality or impropriety resulting in miscarriage of justice has been committed so as to compel this Court to invoke its supervisory jurisdiction under Article 227 of the Constitution or the inherent jurisdiction under Section 482, Cr. P. C. Certain facts are to be taken into account in considering this question. In para 10 of Annexure R-13, judgement in Misc. Criminal Application No. 442/1993, the learned Sessions Judge observes that the petitioner is protracting the litigation by seeking adjournments on flimsy grounds. In that order, the learned Sessions Judge, Akola directed the J. M. F. C. , Telhara to dispose of the matter expeditiously. Counsel for the respondent also made a reference to the Annexure R-11, wherein the Additional Sessions Judge, Akola directed the learned Magistrate to dispose of the complaint on or before 18th September, 1994, but the fact remains that the complaint which was filed in 1983 is stilt pending. This is the background that has to be kept in view in appreciating the rival contentions. The main contention of Mr. Bhattad is that the inherent power can not be exercised where the petitioner has prolonged the litigation. This is more so because the Court cannot function as a second Revisional Court under Section 482, Cr. P. C. Undoubtedly though the Court is not barred in considering a particular matter under Section 482, Cr. P. C. even though the learned Sessions Judge has entertained their revision and he has disposed of the same. This Courts jurisdiction under Section 482, Cr. P. C. is limited and the jurisdiction of this Court under Section 227 of the Constitution is restricted to interfere in cases of grave dereliction of duty or flagrant violation of law. Now in this background it has to be examined whether such grave illegality exists for interference. There was a long debate at the Bar as to whether the Magistrate is bound to issue warrant to the witnesses and secure their presence who were served but were absent even when there is no application from the side of the prosecution. Reliance was placed by the learned counsel for the petitioner on the decision in State v. Veerappan, AIR 1980 Mad 260 : 1980 Cri LJ (NOC) 155 (FB), in support of the contention that it is obligatory on the part of the Magistrate to secure the presence of the witnesses who had been served. In the said decision, it is observed that duty is also cast on the prosecution to produce all its evidence and to seek the assistance of the Court for issuance of the summons to the witnesses. It is further observed that under Sections 242 (2) and 254 (2), if the prosecution has made an application for issue of summons, it is the duty of the Court to issue summons to the witnesses and to secure the presence of witnesses by exercising all the powers given to it under Cr. P. C. Under Section 87 (b) of Cr. P. C. , a Court may in any case in which it is empowered by the Code to issue a summon for the appearance of any person, issue after recording its reasons in writing, warrant for his arrest, if at such time he fails to appear and the summons is proved to have been duly served in time. The wording of the Section is such that it is discretionary for the Court to issue warrants and when it chooses to issue warrants, the Court should give reasons in writing. In the case Anoop Singh v. Cheloo, 1957 Cri LJ 1455 (1) : (AIR 1957 Raj 382), the Rajasthan High Court also has taken the view that the power of the Magistrate to issue a warrant is a discretionary, but the discretion has to be exercised judicially. Therefore, merely because the Magistrate did not issue warrant that cannot be projected as an illegality unless it is shown that there was at least a request on that behalf by the prosecution and the other conditions in Section 85, Cr. P. C. existed. Therefore, the failure of the Magistrate to issue warrant cannot be captioned as perverse or an illegality so as to attract Section 482, Cr. P. C. or Article 227 of the Constitution. The acceptability of the ground for adjournment mentioned in the applications need not deeply be gone into because the same is a question of fact and also in view of subsequent development brought to the notice of this Court by the learned counsel for the respondent. Later the Magistrate recorded the statement of the accused under Section 313, Cr. P. C. on 27-3-1995. The arguments were heard on 10-7-1995 and then on 3-8-1995 the counsel for the complainant filed Ex. 342 for adjournment, but that was rejected. The counsel for the complainant did not argue the matter and, therefore, the matter was closed for judgement. It is submitted that when the matter came up on 19-8-1995 the interim stay was granted and, therefore, the judgement was not pronounced. The question is whether the matter which was pending for such a long time should be ordered to be reopened for facilitating the examination of the said witnesses mentioned in Annexures -1 and 2. The further question is whether it will be in the interest of justice with due regard to the nature and limited jurisdiction exercised by this Court under Section 482, Cr. P. C. and under Article 227 of the Constitution to set aside the order and direct the Magistrate to examine the witnesses. As noticed, there is no apparent illegality in not issuing the warrant, so understood, it is not justifiable to interfere in the aforesaid concurrent orders by exercising the aforesaid jurisdiction. Therefore, this Criminal Writ Petition is liable to be dismissed. Before parting, I must observe that if the judgement to be pronounced by the Magistrate goes against the petitioner, since the observations made in this order are made in the context of the jurisdiction of this Court under Section 482, Cr. P. C. and under Article 227 of the Constitution the same will not stand in the way of the complainant in case he chooses to prefer an application for leave under Section 378 (4) of the Cr. P. C. Subject to the above the Criminal Writ Petition is dismissed. Petition dismissed.