KHAGENDRANATH CHATTOPADHYA Vs. SAMDUD HUDA

JUDGEMENT

(1.) This criminal appeal, filed on special leave, is directed against the order of acquittal passed by Judicial Magistrate, First Class, Krishnagar, Nadia in Case No. 1797C of 1974. That was a complaint case filed by the appellant-complainant on the 9/11/1974 alleging that the respondents-accused persons stealthily cut and took away paddy worth about Rs.200/- grown by the complainant on his land. The accused were summoned in respect of offence punishable under S.379, I.P.C. On 9-5-81 the learned Magistrate examined two witnesses including the appellant-complainant. It is the case of the appellant that on 9-5-81 after examining the said two witnesses, the learned Magistrate, on the prayer of the appellant, fixed 20-6-81 as the next date for examination of further witnesses and this was announced by the learned Magistrate in presence of the appellant in Court. It is the further case of the appellant that accordingly the complainant produced one witness in Court on 20-6-81 and filed hazira, but to his utter surprise he then came to know from the Bench Clerk of the Court that the case had been disposed of on 6-6-81 and the accused persons had been acquitted. Being aggrieved by such order of acquittal, the appellant has preferred the present appeal on special leave.

(2.) The allegation of the appellant is indeed a very serious one. Nothing can be more deplorable than a situation that while the Magistrate announces a date in Court for next hearing he in fact records a different date for the purpose in his order-sheet. Going by the order-sheet of the record it appears that after examining two witnesses, namely P.Ws. 1 and 2 before charge on 9-5-81, the learned Magistrate adjourned the case to 2-6-81 on the prayer of the complainant for examination of all remaining prosecution witnesses. The order-sheet dated 2-6-81 shows that although the accused filed hazira on that date the complainant was absent without steps and in the circumstances the learned Magistrate recorded an order closing the prosecution case. It further appears that on that very date the learned Magistrate framed charge under S. 379, I.P.C. and fixed 6-6-81 for cross-examination of all P.Ws. and examination of the accused under S. 313, Cr. P.C. On 6-6-81 also all the accused persons filed hazira, but the complainant was absent without steps. In the circumstances the learned Magistrate recorded an order expunging the evidence, examined the accused persons under S.313, Cr. P.C. and heard argument (obviously ex parte) on that very date. The order-sheet dated 6-6-81 further records that the judgment was also delivered on that date and the accused persons were acquitted. We thus find that the order sheets of the record do not show that on 9-5-81 the case was adjourned to 20-6-81 as alleged by the appellant/ complainant. It is also to be noted that although it is alleged that on 20-6-81 the complainant filed hazira and then came to know from the Bench Clerk that the case had been disposed of on 6-6-81 and the accused persons had been acquitted and that on perusal of the record the complainant's Lawyer came to now that the next date was fixed an 2-6-81 and not 20-6-81 as told by the learned Magistrate, yet no application was filed by or on behalf of the complainant on 20-6-81 or ever thereafter in the Court of the learned Magistrate drawing his attention to the grievance of the complainant in this regard. Had any such application been filed by the complainant before the learned Magistrate at the earliest opportunity which by way of a normal repercussion he was expected to do, that would not only have betrayed some measure of bona fide on the part of the complainant in respect of his contention that contrary to the record the learned Magistrate had announced a different date as now alleged by him, but would have at the same time required the learned Magistrate to record his comments on the matter in disposing of or dealing with the application which might have been of some assistance to the superior Court in arriving at a decision in respect of the grievance of the aggrieved party. Ordinarily the superior court will be loath to entertain or accept any allegation of error, irregularity or impropriety against the lower court in respect of any factual aspect of matter unless the attention of the concerned Court is first drawn to the matter by the aggrieved party by filing an application there at the first instance, except of course where such factual error, irregularity or impropriety is patent or manifest on the face of the record. In the case under consideration although no such application was filed by the complainant before the learned Magistrate and although the record on the face of it does not sustain the allegation that 20-6-8l was fixed by the learned Magistrate as the next date of hearing and on the contrary it appears that the accused persons attended the Court on 2-6-81 as per the programme fixed by the order dated 9-5-8l thereby exposing the allegation of the complainant to a grave suspicion inasmuch as if really the complainant was misled by any announcement of the learned Magistrate regarding the fixation of the next date of hearing it was only expected that the accused persons also would have been equally misled by the same announcement which however did not happen as is evident from the fact that they appeared on 2-6-81 consistently with the order recorded on 9-5-81, yet however some indication is there in the order-Sheet itself which reflects a gross subsequent inconsistency between what the learned Magistrate professed to have done and what he actually did. Order No.37 dated 6-6-81 shows that in the absence of the complainant the learned Magistrate expunged the evidence, examined the accused persons under section 313 Cr. P.C., heard argument (obviously, advanced on behalf of the accused persons only) and delivered judgement on that very date acquitting all the accused persons. The said order purports to have been recorded by the Magistrate himself in his own hand and is not a dictated one. Strangely enough, and rather to our utter surprise we however find that the hand written two-page judgement of the learned Magistrate which is there is the record is dated the 18/06/1981. To say the least, it is an act of gross impropriety on the part of the learned Magistrate to record an order in the order-sheet showing that the judgment was delivered on the 6/06/1981 which as a matter of fact no judgment was at all delivered on that date and the judgment that was subsequently rendered is dated the 18/06/1981. Such kind of a glaring and misleading inconsistency between order-sheet and record painfully indicates that the learned Magistrate is not sufficiently conscious of the necessity of accuracy and faithfulness of records in the matter of administration of justice. We will only advise and hope that the learned Magistrate will, in future, take due care in this regard so that the records maintained by him in discharge of his official responsibilities may regain credibility. The Registrar, Appellate Side, shall inform the concerned officer accordingly, wherever he may be posted now.

(3.) Again the procedure adopted by the learned Magistrate due to the absence of the complainant cannot be approved. It was a warrant procedure case started on the basis of a complaint. On 6-6-81 the learned Magistrate expunged the evidence which the complainant had earlier tendered before framing of charge. The reason of expunging the evidence seems to be that the concerned witnesses including the complainant who had been earlier examined did not turn up on 6-6-81 for cross-examination after framing of charge. We are however of the opinion that the learned Magistrate was not justified in expunging the evidence simply because the witnesses concerned did not turn up. In this connection we may look to the relevant provisions of Section 246, Cr. P.C. which runs thus: