S.K. Keshote, J.@mdashThe petitioner directed this petition under Art. 227 of the Constitution of India against the order of the learned Additional Sessions Judge, Ahmedabad Rural at Ahmedabad dated 18-7-1995.
2. The facts of the case are that the petitioner''s father (since deceased) Joitaraman Topandas Patel initiated criminal proceedings against the respondent Nos. 1 to 6 in the Court of Chief Judicial Magistrate, Ahmedabad Rural at Mirzapur, Ahmedabad. The Chief Judicial Magistrate, Ahmedabad Rural at Mirzapur, Ahmedabad sent the matter for investigation to the Police in exercise of its powers u/s 156(3) of the Criminal Procedure Code, 1973. After making the investigation, the Police submitted its report dated 19-7-1991 wherein it was reported that no offence was committed by the respondents. The learned Magistrate issued a notice to the complainant (since deceased) to remain present and to make a representation if he desires to make against the report of the Police. The representation is made. Enclosed to that representation, the complainant - since deceased submitted documentary evidence also. The learned Magistrate after hearing the parties passed the order and took cognisance in the matter and issued summons to the respondent Nos. 1 to 6. The original complainant, father of the petitioner, (since deceased) used to remain present during the trial. It is also not in dispute that he engaged an advocate in the matter and he was appearing for him in the proceedings. Unfortunately, the father of the petitioner had expired on 1-9-1993.
An application was came to be filed after the death of the complainant by the respondent No. 6 in the Court of Judicial Magistrate and prayer made therein is that as the original complainant has died, the accused may be acquitted. The petitioner filed his objections against this application. The learned Magistrate having gone through all the aspects of the matter and hearing the learned Counsel for the parties under his order dated 23-12-1994 dismissed this application of the respondent No. 6. Aggrieved and dissatisfied with the order of the learned Judicial Magistrate, the respondent No. 6 filed Criminal Revision Application No. 35 of 1995 in the Court of Sessions Judge, Ahmedabad Rural at Mirzapur, Ahmedabad which was came to be decided by the Additional Sessions Judge, Ahmedabad Rural at Mirzapur, Ahmedabad under his order dated 18-7-1995. This revision application has been allowed and the respondent was ordered to be acquitted. Hence, this Special Criminal Application.
3. Shri M. C. Bhatt, learned Counsel for the petitioner contended that the order of the learned Additional Sessions Judge, Ahmedabad Rural is wholly perverse. In his submission, the learned Additional Sessions Judge has not looked into and correctly appreciated the provisions of Section 256 of the Criminal Procedure Code, 1973 (hereinafter referred as the "Code"). Shri Bhatt, learned Counsel for the petitioner places much emphasis on Section 256(2) of the Criminal Procedure Code. It is urged that merely on the death of the complainant, the rule is not to acquit the accused. The learned Judicial Magistrate has ample power to continue the criminal case upto its logical end. Shri M. C. Bhatt, learned Counsel for the petitioner submitted that in the criminal case, the complainant was represented by the Advocate. The criminal complaint has been filed by the complainant as he was owner of the land in respect of which the offence has been committed by the respondents, otherwise the accused have beaten his son including the petitioner herein and his sons are the material witnesses to be examined in the matter and as such, after his death they could have been permitted to continue this criminal case. Concluding his submissions Shri M. G. Bhatt, learned Counsel for the petitioner argued that the learned Trial Court has rightly considered it to be not a fit case to acquit the respondents merely on the death of the complainant. The revisional Court has very limited power of interference in such matters and has committed a serious illegality in making interference with this legal and just order of the Magistrate.
4. In contra, the learned Counsel for the respondent supported the order passed by the learned Additional Sessions Judge at Mirzapur at Ahmedabad.
5. To appreciate, consider and to give the decision on the contentions raised by the learned Counsel for the parties, I consider it to be appropriate first to have glance on the provisions of Section 256 of Criminal Procedure Code, 1973 which reads as under :-
"Section 256. Non-appearance or death of complainant : (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day :
Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.
(2) The provisions of sub-section (1) shall so far as may be, apply also to cases where the non-appearance of the complainant is due to his death."
6. From the facts of this case, I find that the complaint has been filed by the complainant (since deceased) in his name as he was the owner of the land in dispute. If we go by the contents of the complaint, I find sufficient merits in the contention of the learned Counsel for the petitioner that the petitioner and his another brother was the real persons in the matter who has been beaten by the respondent Nos. 1 to 6 and they are the eye-witnesses of the commission of the offence by the accused. In fact, the substance of this complaint was for the commission of offence by the respondents of which the petitioner and his brother were victim leaving apart the demolition of the construction. The complainant was not present at the site on that fateful day. These 2 persons are eye-witnesses and are to be examined to prove the offence against the respondents. The complainant was represented by the Advocate. He remained present on almost all the days and in these facts, I am satisfied and in agreement with the view taken by the learned Judicial Magistrate. The learned Judicial Magistrate has taken a correct view in the mater and further was aware of a justice-oriented approach while passing the order rejecting the application of the respondent; Though, it is not the stage where this Court has an occasion to say anything on merits, but the offences which is alleged to have been committed by the respondents is very serious and in case in such matters may be on the death of the complainant, the accused are acquitted, it will result in giving a premium to them for their alleged criminal activities.
7. Section 397 of the Criminal Procedure Code, 1973 empowers the High Court or any Sessions Judge to call for and examine the record of any proceeding before any inferior Criminal Court situated within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality and propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement let he be released on bail on his own bond pending the examination of the record. This is a discretionary power which lies with this Court and the Sessions Judge. I find substance in the contention of Shri M. C. Bhatt, learned Counsel for the petitioner that it is not a fit case where the learned Additional Sessions Judge would have interfered with the order of the learned Judicial Magistrate. The learned Judicial Magistrate has not committed any procedural irregularity or illegality in making of the order. Section 256 of the Criminal Procedure Code nowhere lays down that on the death of the complainant only option open to the Magistrate is to acquit the accused. Sub-section (2) qf Section 256 of the Code of Criminal Procedure makes the provisions of sub-section (1) applicable also to cases where the non-appearance of the complainant in the case is due to his death. Section 256(1) of the Code of Criminal Procedure, 1973, thus, gives ample power to the learned Magistrate for the reasons to be recorded to adjourn the hearing of the case to some other date i.e. decline to acquit the accused on the death of the complainant. Here, in this case, the absence of the complainant was due to his death and it is permissible to the learned Judicial Magistrate for reasons to be recorded to adjourn the hearing of the case to some other day. The provisions of Section 256(1) of the Criminal Procedure Code, 1973 are applicable and attracted in this case and the Magistrate has ample power to dispense with the complainant from his personal attendance and proceed with the case where the complainant is represented by a pleader or by the officer conducting the prosecution. In this case, as said in the earlier part of the judgment, the complainant was represented by the Advocate and he can be exempted from personal appearance by the learned Magistrate and in view of this provision of law, on his death, the Judicial Magistrate has all the power to proceed with the case. The complainant was regularly attending the Court when he was alive and from this fact, it can be reasonably inferred that he would not have opted for his exemption from personal attendance, it is not the case of the respondents that the complainant has applied for grant of exemption from personal appearance and the Court has not permitted. In the facts of the case and in the presence of the provisions as contained in Section 256 of the Criminal Procedure Code, 1973, I am satisfied that the learned Additional Sessions Judge, Ahmedabad Rural, Mirzapur at Ahmedabad was not correct in his approach to interfere with this just and reasonable order passed by the learned Judicial Magistrate. The learned Additional Sessions Judge, Ahmedabad Rural, Mirzapur has not considered the substance of the case and has passed the order in total ignorance of and as if unconcerned with the need of the day that the Courts are to have justice-oriented approach.
8. From the facts of this case, one another important aspect emerges. In all, there were six accused in the criminal case. Only one accused has applied for acquittal, meaning thereby, the other five accused were not objecting to the continuance of the criminal case against them after the death of the complainant. That application has been rejected and the accused No. 6 only filed the revision application. When five accused have no objection to continuance of the criminal case against them, how far it is justified for the learned Additional Sessions Judge, Ahmedabad Rural, Mirzapur at Ahmedabad to interfere with the order of the learned Judicial Magistrate. It is not the case of the other respondents that they have also filed similar application in the Court of Judicial Magistrate. In view of this undisputed facts, the acquittal of all the accused in this case is also otherwise not a correct legal and proper approach.
9. In the result, this Special Criminal Application succeeds and the same is allowed. The order of the Additional Sessions Judge, Ahmedabad Rural at Mirzapur, Ahmedabad dated 18-7-1995 in Criminal Revision Application No. 35 of 1995 is quashed and set aside. Rule is made absolute. The criminal case is of the year 1993, meaning thereby, 7 years old and it is expected that the Judicial Magistrate to expedite its hearing. Rule made absolute. No Costs. Application allowed.
