From the provisions referred to above it is clear, the law does not contemplate that once a complaint is filed by a public servant, he has discharged his duty and need not remain present in the Court. As pointed out in the decision in State of M. P. v. Kalu 1973 Jab LJ 224 : 1972 Cri LJ 1639, the prosecuting agency owes a duty to the accused who is prosecuted and to the Court which is required to dispense justice according to law. In this task it is entitled to the co-operation of all concerned. Dispensation of justice is, in a sense a team work and every one is expected to play his role properly. {Para 14}
15. A perusal of the proviso to Section 200 of the Code shows that where a public servant acting or purporting to act in the discharge of his official duties filed a written complaint, the Magistrate need not examine him and his witnesses. In the instant case the learned Magistrate exercising his discretion in favour of the complainant, had straightway ordered issue of process against the accused.
16. Justice has to be done to both the contending parties. In the instant case when the complainant did not appear on the several dates fixed for hearing of the case without any intimation and no steps were taken to produce the witnesses or request the Magistrate to grant further time for the purpose or to issue summons, it cannot be said that in exercising the judicial discretion in discharging the petitioner, the learned Magistrate has committed any error resulting in any miscarriage of justice. The Food Inspector ought to have taken necessary steps. No doubt, as pointed out in the decision in State of M. P. v. Ramsingh, 1976 Jab LJ 696 once the Court has ordered issue of summons to the witnesses it is duty bound to procure their attendance without the requirement of a fresh application for the purpose but such was not the situation in the case in hand. The decision in State of M.P. v. Nathulal 1983 M P W R 246 is also distinguishable.
17. It is well settled that the discretionary re visional jurisdiction has been conferred on the Courts so that they may step in and interfere in cases where there is flagrant miscarriage of justice and this power has to be exercised in exceptional cases. There is certainly no case for interference under Section 482 of the Code.
1. This revision petition is directed against the order dl. 8-8-1985 passed by the Additional Sessions Judge, Judge, Mandleshwar in Criminal Revision No. 86 of 1985 whereby the order dt. 4-8-1984 passed by the Judicial Magistrate First Class, Sanswad in Cr. Case No. 334 of 1983 discharging the accused hasbeen confirmed.
2. Facts giving rise to the petition are these : G. L. Bansal, Food Inspector, Barwani, District Mandleshwar on 21-11-1983 filed a criminal complaint defined in Section 2(d) of the Code in the Court of Judicial Magistrate First Class, Sanswad against the respondents in respect of the offence punishable under Section 7(v) read with Section 16(1)(g) of the Prevention of Food Adulteration Act, 1955 (for short 'the Act'). In obedience to summons, the respondents put in appearance on 14-12-1983. The case was adjourned to 30-4-1984, 3-7-1984and 4-8-1984 for evidence before charge. The Food Inspector was absent on these dates and no evidence was produced.
3. On 4-8-1984 the learned Magistrate in the absence of the complainant and in the absence of witnesses closed the prosecution evidence and discharged the respondents.
4. The revision filed against the said order stands dismissed as already stated.
5. The contention of the learned Counsel for the petitioner-State is that the Food Inspector was on presanctioned leave on 6-3-1984, 3-7-1984 and 4-8-1984 and his absence deserved to be condoned and more so looking to the nature of the offence. It is also contended that the provisions under Sections 202, 244 and 245 of the Criminal Procedure Code, 1973 (for short 'the Code') have been erroneously applied to the case in hand.
6. An application dt. 31-3-86 has also been filed praying that the revision may also be treated as one under Section 482 of the Code.
7. The point for consideration is whether the re vision petition deserves to be allowed.
8. Regarding trial of the offence Section 4(2) of the Code in pertinent. Chapter XIX of the Code in Sections 238 to 250 lays down the procedure for trial of warrant cases by , Magistrate. Different procedure is prescribed for cases instituted upon a police report (Sees. 238 to 243) and cases instituted otherwise than on police report (Ss. 244 to 250).
9. The offence complained of being punishable with three years' rigorous imprisonment, the case in hand is a warrant case within the meaning of Section 2(a) of the Code and having been instituted otherwise than on police report the procedure prescribed in Sections 244 to 250 of the Code is clearly applicable to it. The contrary contention sought to be canvassed on behalf of the petitioner is to be mentioned only to be repelled.
10. Section 249 of the Code providing for discharging the accused when the complainant is absent is in these terms:
When the proceedings have been instituted upon complaint, and on any day fixed for the hearing of the case, the complainant is absent, and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused.
11. It is not disputed that the offence in question is not compoundable. According to Part II of the First Schedule of the Code which relates to classification of offence against other laws (other than I.P.C.), the offence in question being punishable with imprisonment for 3 years is a cognizable one within the meaning of Section 2(c) of the Code. There is nothing in Section 20 of the Act to militate against this conclusions. As the conditions for the applicability of Section 249 of the Code are missing the learned Additional Sessions Judge was wrong in holding that the order of the learned trial Magistrate was within its coverage.
12. It may now be considered whether the order can be supported under any other provision.
13. Section 244(1) of the Code lays down that when the presence of the accused is procured, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. A complainant is no doubt entitled to take the help of the Court in the matter of evidence and in Sub-section (2) of the section it has been provided as under:
The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.
As to when the accused shall be discharged, Section 245(1) lays down as under:
If, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
14. From the provisions referred to above it is clear, the law does not contemplate that once a complaint is filed by a public servant, he has discharged his duty and need not remain present in the Court. As pointed out in the decision in State of M. P. v. Kalu 1973 Jab LJ 224 : 1972 Cri LJ 1639, the prosecuting agency owes a duty to the accused who is prosecuted and to the Court which is required to dispense justice according to law. In this task it is entitled to the co-operation of all concerned. Dispensation of justice is, in a sense a team work and every one is expected to play his role properly.
15. A perusal of the proviso to Section 200 of the Code shows that where a public servant acting or purporting to act in the discharge of his official duties filed a written complaint, the Magistrate need not examine him and his witnesses. In the instant case the learned Magistrate exercising his discretion in favour of the complainant, had straightway ordered issue of process against the accused.
16. Justice has to be done to both the contending parties. In the instant case when the complainant did not appear on the several dates fixed for hearing of the case without any intimation and no steps were taken to produce the witnesses or request the Magistrate to grant further time for the purpose or to issue summons, it cannot be said that in exercising the judicial discretion in discharging the petitioner, the learned Magistrate has committed any error resulting in any miscarriage of justice. The Food Inspector ought to have taken necessary steps. No doubt, as pointed out in the decision in State of M. P. v. Ramsingh, 1976 Jab LJ 696 once the Court has ordered issue of summons to the witnesses it is duty bound to procure their attendance without the requirement of a fresh application for the purpose but such was not the situation in the case in hand. The decision in State of M.P. v. Nathulal 1983 M P W R 246 is also distinguishable.
17. It is well settled that the discretionary re visional jurisdiction has been conferred on the Courts so that they may step in and interfere in cases where there is flagrant miscarriage of justice and this power has to be exercised in exceptional cases. There is certainly no case for interference under Section 482 of the Code.
18. In the light of the foregoing discussion, I am of the view that the impugned order which is legal and justified by the circumstances does not call for any interference in exercise of the revisional jurisdiction.
19. In the result the revision petition fails and is dismissed.
Print Page
No comments:
Post a Comment