MAHESH CHAND SHARMA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS criminal miscellaneous petition is directed against the order dated 20-5-1988 and 7-1-1989 passed by Judicial Magistrate, 1st Class, No. 4 Jaipur in criminal case No. 82/88 whereby the learned Magistrate closed the evidence of the complainant on the ground that inspite of so many opportunities, the complainant-petitioner failed to produce his evidence. The learned Magistrate further observed that the case has become old and inspite of the fact that the case is pending since a long time, and even after that the complainant petition failed to produce the evidence. So in the present petition the question arises for consideration by this Court is as to whether the complainant was negligent in producing his evidence, and whether the proceedings are delayed because of negligence on the part of the complainant-petitioner. In order to determine this question it is necessary to go through the order-sheets recorded by the trial Court so as to ascertain as to on whose fault, the matter was delayed and for this purpose order-sheets are to be gone into. A perusal of the order-sheets shows that for the first time non-petitioner appeared before the trial Court on 2. 11. 1983 when the accused-non-petitioners filed an application under Section 245 (2) Cr. P. C. in addition to an application under Section 294 Cr. P. C. for admission and denial of the documents. On 8. 11. 1983 the documents were admitted and denied under section 294 Cr. P. C. The application under section 245 (2) moved by the accused-respondent was decided on 14-11-83 and the case was fixed to 3-12-1983 for recording the pre-charge evidence under section 242 Cr. P. C. On 3-12-1983 the complainant made a request to this effect that the F. R. be summoned from the police. On 7. 1. 1984 Police report was not received and the same was received on 13. 3. 1984. On 16. 4. 1984 an adjournment was sought by the complainant. On 18-5-1984 the case was adjourned because the Presiding Officer was not present due to his transfer. On 2. 8. 1984 the counsel for the accused-respondent filed an application for summoning the record and also requested to give the requisition 'dasti'. On 16. 10. 1984 an adjournment was sought by the complainant. On 20. 11. 1984 the statement of the petitioner was recorded but it remained incomplete because a file in civil case from the Additional Sessions Judge No. 3 was sought to be summoned to prove certain documents. On 24. 1. 1985, 22. 3. 1985, 5. 6. 1985, 7. 8. 1985, 7. 10. 1985, 9. 12. 1985, 13. 12. 1986 and 25. 2. 1986 the case was adjourned because the aforesaid file was not received from the Court of Additional Sessions Judge No. 3. On 1. 3. 1986 it was brought to the notice of the Court that the aforesaid file was then in the High Court and the file was ordered to be summoned, and the presence of the accused-respondents was exempted till the receipt of the record. On 20. 4. 1986 again the file from the High Court was summoned, but till 16. 6. 1988, the file was not received. Again, on 19. 7. 1986, 29. 8. 1986 and 27. 10. 1986 the aforesaid file was again summoned. However in the meantime on 24. 10. 1986 the case was transferred from the Court of Judicial Magistrate No. 13 to Judicial Magistrate No. 4. On 27. 10. 1986 while summoning the said file it was ordered that in case the file was not received the file would not be summoned. On 5. 3. 1987, a letter was received from the High Court that the file cannot be sent at it is required in the High Court. On 16. 4. 1987 due to boycott of the Courts by the Advocates no advocate appeared. On 13. 7. 1987 the Court directed to the parties to produce the documents. On 25. 8. 1987 the parties admitted certain documents. On 1. 8. 1987 an adjournment was sought by the complainant to which the accused-respondents did not object. On 19. 9. 1987 the Presiding Officer was not present. On 6. 10. 1987 the statement of the complainant was recorded in part and remained incomplete and due to non-availability of the advocates of the complainant the statement of the complainant could not be recorded. On 30. 10. 1987 the complainant sought time but the advocate of the accused did not object. On 1. 12. 1987 on behalf of the parties a request was made so as to compromise the matter. On 19. 1. 1988 again time was sought by both the parties for compromise. On 17. 2. 1988 as the compromise could not be arrived at, the case was fixed for the statement of the complainant. On 8. 3. 1988 due to strike of the advocates the case was adjourned. On 20. 5. 1988 due to non-availability of the advocate of the complainant his statement could not be completed and the learned Magistrate abruptly closed the statement of the complainant and ordered to produce the remaining witness, but at his own instance. The learned trial Court even did not order to summon the witnesses through Court summons.

(2.) IN view of the facts mentioned above it appears that the case adjourned on so many dates on the request of the complainant and due to the reason that the complainant failed to produce his evidence and that the complainant made request to be summoned his witnesses and he filed summons and process fees for the purpose of summoning the witnesses and the trial Court did not issue summons to the witnesses of the complainant and throughout the period the complainant was anxious to produce his evidence but due to the reasons which were beyond his control, statements of his witnesses as well as his own statements were not recorded by the trial Court for one reason or the other. Under Section 242 Cr. P. C. if the accused refused to plead guilty and claimed to be tried and the Magistrate does not convict the accused under Section 241 Cr. P. C. then the Magistrate shall fix a date for the examination of the complainant. Under Sub-section 2 of Section 242 Cr. P. C. a right has been given to the complainant to get his witnesses summoned through the Court. IN the instant case the complainant filed process fee and summons for his witnesses but the Court did not issue summons to his witnesses. It is thus clear that the learned trial Court refused to issue summons to the witnesses of the complainant and no cause appears on record as to why did the trial Court not issue summons to the witnesses for the prosecution. Under Sub-Section 2 of Section 242 the Magistrate has been vested with the discretion and he may on the application of the prosecution issue a summon to any of his witness directing him to attend but such a discretion is to be exercised judiciously and if the Magistrate fails to exercise the discretion then he should give reasons for the same but in the present case the Magistrate did not issue summons to the witnesses of the prosecution without mentioning any reason and in these circumstances the complainant has been deprived of the right of producing his evidence. Thus the action of the learned Magistrate amounts to an abuse of process. As such this Court can pass necessary orders to give effect to any order under this Court and to prevent abuse of process of any Court or otherwise to secure the ends of justice.

(3.) IT is a strange and surprising that the learned trial Court failed to record the statement of the complainant himself. A look at the order-sheets shows that on all the dates of hearing the complainant was present and even after that, the learned trial Court did not record the statement of the complainant and such an action of the learned Magistrate tends to disclose miscarriage of justice and in such circumstances to meet the ends of justice this Court is legally bound to interfere while exercising its extra-ordinary powers vested to the High Court under Section 482 Cr. P. C. This is a case where the complainant has not been given sufficient opportunity to produce his evidence and in such a situation it is just possible that the accused-respondent may go unpunished and situation may change if the complainant is given an opportunity to produce his evidence and if sufficient evidence is produced then the accused-respondent can be held guilty. If the complainant is not afforded an opportunity to produce his evidence then a person who according to the complainant, is guilty shall go unpunished. In these circumstances it can be safely observed that this is a case of miscarriage of justice and in these circumstances and interference by the High Court becomes must.