RAM NARAIN Vs. BISHAMBER NATH

JUDGEMENT

(1.) This case has been forwarded to this Court by the learned Sessions Judge, Rohtak, in the following circumstances. Bishamber Nath filed a complaint against Ram Narain and Mst. Jiwani Bai under Sections 497/494, Indian Penal Code, in the Court of Shri D.H. Gupta. Magistrate 1st Class, Rohtak. Ram Narain accused preferred a revision in the Court of the learned Sessions Judge on 14th May 1959 on the ground that the order passed by the Magistrate summoning Ram Narain and his wife Mst. Jiwani Bai was in contravention or Section 204, Criminal Procedure Code, and therefore deserves to be quashed. The learned Sessions Judge has in his order observed that the learned Magistrate did not comply with the provisions of Section 204, Clauses (1A) and (1B), Criminal Procedure Code, inasmuch ai neither a list of witnesses had been put in by the complainant along with the complaint nor was A copy of the complaint sent by the Court to the accused. The learned Sessions Judge is of the view that the learned Magistrate had not cared to apply his mind to the amendment introduced in Section 204, Criminal Procedure Code, and that he merely proceeded according to the old unamended provsions of the Code of Criminal Procedure. The learned Sessions Judge in support of his view relied on Chaturbhuj v. Naharkhan, AIR 1958 Madh Pra 28.

(2.) The learned Judge, as already stated, has forwarded the records to this Court with the recommendatiom that the order of the Magistrate dated the 30th April 1959 be set aside and the Magistrate be directed to comply with the provisions of Section 204, Clauses (1A) and (1B) after duly applying his mind to those provisions and then to proceed with the trial of the case in accordance with law. In this Court the accused, the complainant and the State, have all been represented by their respective counsel. The counsel for the accused has submitted that this order should be set aside because it contravenes the mandatory provisions of law as held in AIR 1958 Madh Pra 28. The counsel for the complainant as well as for the State have submitted that the flaws which have been noticed by the learned Sessions Judge amount to mere irregularities which are curable under Section 537 of the Code of Criminal Procedure. I have checked the record myself and T agree that the learned Magistrate has undoubtedly not cared to notice the latest amendment made in Section 204, Criminal Procedure Code. The question, however, is as to what order should be passed by this Court at the present stage. The record shows that the complaint in question under Section 497 read with Section 494, Indian Penal Code, also read with Sections 17 and 18 of the Hindu Marriage Act, was instituted by Bishamber Nath sometime in December, 1958. This complaint was not accompanied by any list of witnesses; the statement of the complainant was however, recorded in the Court of the learned Magistrate on 3rd January 1959 and on the same day the Court issued notices under Section 202, Criminal Procedure Code, to the accused persons for 9th January 1959. On that date proceedings were adjourned because neither the accused had been served nor were the complainant's witnesses present; the case was then again adjourned to 22nd January 1959. On that date the Urdu Chitha shows that the case was adjourned to 5th February 1959; the complainant was present but the witnesses were absent; service was also stated not to have been effected and process-fee was ordered to be paid. But surprisingly enough I also find on the record an application filed in Court on 22nd January 1959 by Mst. Jiwnni Bai through Mr. B. R. Vij Advocate stating that a false complaint had been filed by the complainant against her and her husband and praying for adjournment of the criminal case pending the decision of another civil case involving the same question. In this application, 27th January 1939 was fixed for hearing. On that date the case was adjourned to 5th February 1959 on account of absence of the counsel for the lady. On 5th February 1959 again the case was postponed to 19th February 1959, on which date the petition by the lady was ordered to be heard along with the other case on 9th March 1959, when again the case was adjourned to 19th March 1959, when a further adjournment was ordered, the next date being 26th March 1959 when the case was ordered to be heard at some other station. On 19th February 1959, 9th March 1959 and 19th March 1959, the case appears to have been adjourned on the ground that the complainant had not brought his evidence for enquiry under Section 202, Criminal Procedure Code. I have also noticed on the record a certified copy of a plaint dated 2nd January 1959, as also a certified copy of the issues framed by Shri Mohan Lal Jain, Subordinate Judge 1st Class, Rohtak, on 25th February 1959. On 26th March 1959 the case was adjourned to 6th April 1959 for considering the application filed by Mst. Jiwani Bai on 22nd January 1939. On the adjourned date as the counsel were stated not to be ready for arguments, the case, was again postponed to 14th April 1959, then again to 23rd April 1959 and then to 27th April 1959 and again to 28th April 1959 and, finally, on 30th April 1959 the learned Magistrate passed an order formally summoning the accused persons, apparently without holding any inquiry for which purpose the accused Mst. Jiwani Bai had already been served with a notice. The learned Magistrate felt that public interest demanded criminal justice to be swift and sure and therefore notwithstanding the pendency of the civil snit the present criminal complaint deserved to be proceeded with. For this view he purported to follow M.S. Sheriff v. State of Madras, AIR 1954 SC 397 (399). It may be remembered that several adjournments had been granted by the Court on the ground that the complainant had not brought his preliminary witnesses.

(3.) The record of this case, as noticed above, clearly discloses a most unsatisfactory and deplorable state of affairs. It appears to me that the learned Magistrate has not cared at all to apply his mind to the circumstances of the case; neither its nature nor its previous history, nor even the orders actually passed on the record have been considered; even the law applicable to the case has not been properly adverted to. After rejecting the application of the lady (or staying the criminal proceedings, the learned Magistrate just proceeded to summon the accused persons without paying the least attention to the facts and circumstances of the case and even without bearing in mind the Court's own previous orders. As a matter of fact, while purporting to apply the ratio of the Supreme Court decision in AIR 1954 SC 397 (399), he did not even deem it proper to consider the circumstances of the present case, though the passage from the Supreme Court decision, quoted by him in his order, clearly envisages such consideration; the order does not show if the learned Magistrate made any inquiry as to the stage of the civil suit, in which, according to the order dated the 25th February 1959 framing the issues, 24th April 1959 was the date fixed for the parties' evidence.