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1989 Supreme(Guj) 127
Gujarat High Court
Judgename :K.J.VAIDYA
STATE OF GUJARAT - Appellant
Versus
SYPOI ALAMBHAI JAMALBHAI - Respondent
CRIMINAL APPEAL 333 of .
Decided On : 08/17/1989
Headnote:(i) Delay - In the course of Criminal Proceedings - Primarily it is the duty and responsibility of the Court to do justice- Neither the prosecuting agency nor the Police agency entrusted with the service of the process can ever be permitted to have an illegal upper-hand over the powers and duties of the Trial Court Trial Court must see that the prosecuting agency is kept under control - Default committed by the prosecution agency cannot be permitted to be taken as material to clean-wash the crime committed by the accused - Trial Court must, tackle the situation with patience without losing any interest and/or initiative (Cross Ref: Cr. P.C. - Sections 311 and 350).
Held: It should not be forgotten that primarily it is the duty and responsibility of the Court to do justice and with the said object in mind, if the trial Court feels that the prosecuting agency is not discharging its duty in the desired way, then it should not feel helpless and reluctant in straightening up the matter by bringing to the notice of either the District Superintendent of Police and/of the, District Magistrate, under whom the prosecuting agency of the Taluka and/or District is functioning. Unless there is some sort of liaison at the administrative level of the Court as well as that of the Office of the District Superintendent of Police and District Magistrate, it is not possible to control the menace of lethargic and irresponsible prosecuting agencies. Neither the prosecuting agency nor the Police agency entrusted with the service of the process can ever be permitted to have an illegal upper-hand over the powers and duties of the trial Court. If the trial Court neglects and fails to tackle the defaulting and erring agencies, not only that particular case would suffer but these agencies will get out of the control, and would be tempted to play foul and cool in other cases as well ultimately defeating the case of justice affecting the loss the faith of people clamouring and urging for the justice as their desire for justice will simply remain a cry in the wilderness. Judicial prudence warrants that for doing ultimate justice, keeping the prosecution witnesses before the Court for the purpose of examination is an absolute necessity and for that, both the Court and prosecuting agency, has got to share the responsibility. The Court must realise the hard facts of life that it has to depend upon a human-agency for securing presence of the witnesses before the Court. Such agency works in its own way with some time yes, some time its, some time buts and so on so forth coming within number of cases. It is too much to expect this agency to be as quick and as responsive as one would have with the push button electronic device. Therefore, the trial Court must tackle the situation with patience without losing any interest and/or initiative. It must see that the prosecuting agency is kept under control, it keeps the witnesses presence before the Court and the things are handled in such a way that the cause of justice ultimately does not lose its way and accused get out of the clutches of law on the ground of non-prosecution default committed by the prosecution agency cannot be permitted to be taken as material to clean-wash the crime committed by the accused. What in fact in the instance case, we find is that the crime is clean-washed for no fault society, not as much for the fault of the prosecutions as it was for want of trial. (Para 7)
APPEAL AGAINST ACQUITTAL -Indian Penal Code, 1860 - Section 408 Criminal Prosecution for temporary misappropriation of Rs. 5,339/- - Alleged offence has taken place in the year 1977 – Charge-sheet was filed in April, 1979 - Proceedings, went on being adjourned from time to time: Order of discharging the accused for non-prosecution, passed in October, 1980 – Appeal - Whether the impugned order of acquittal passed by Trial Court is legally sustainable? - (No, the order is patently un-judicial and illegal- A wrong committed by a prosecuting agency cannot be utilised for committing another wrong by acquitting the accused) - Whether the circumstances demand passing order of remand? (No, Proceedings against the accused are ordered to be dropped).
Held: Having regard to the fact that the offence was of an year 1977, trial Court ought to have, given top-most priority to this case-in the interest of prosecution, accused and for ultimate ends of justice. Even charge could have been framed much earlier had the Court taken little bit initiative and insisted upon for the expeditious proceeding. Such callous delays and dozing proceedings in the criminal trial, to say the least, is nothing but wandering away from the path of justice. Such a tardy trial proceeding corrodes the very faith and foundation of justice. It is true that neither law provides for any time bound trial schedule, nor it is practicable to fix time bound trial, as it depends upon the very many factors, particularly, Criminal Courts in the Metropolitan cities like Ahmedabad, Vadodara, Rajkot, Surat etc. and in many other headquarters towns of the districts having regard 19 the number of criminal cases and inadequate number of Magistrates and its ministerial staff there is a tremendous workload pressure on Trial Courts and therefore to the said extent the unavoidable delays in the course of the proceedings are sometimes understandable. But thin does not mean that the trial Court should allow itself to be bogged down under the pressure of the work, losing the interest, initiative and control over the Court proceedings. TbeRojkan1 proceedings therefore must reflect the awareness, initiative and interest of the trial Court showing how each and every case is controlled at very many stages like: (i) adjourning the cases; (ii) controlling the process serving agencies; (iii) insisting upon keeping the prosecution witnesses present by issuing bail able and/or non-bailable warrants and/or resorting, to remedy under Section 350 of the Code of Criminal Procedure, etc. The Rojkam proceedings must speak about an hour to hour judicial activism. It must also reflect the reasonableness of the Court in attending to the cases. (Para 7)
Further held: 'Justice' is a word which has a larger connotation and has to be understood in its proper perspective and spirit in background of facts and circumstances of each case. Ordinarily, this is a case wherein the order of remand would have natural and legal consequence of the impugned illegal order, However, at the same time, whether to remand the case for re-trial would be doing-justice or not is a question which requires to be considered and while considering the same, this Court at his stage can not be oblivious to the facts and circumstances enlisted hereunder: (i) that the alleged offence has taken place in the year 1977 and the order of remand which has sought to be passed is in the year 1989, and/or (ii) that this is a case where the accused is of about the age of 72 years, and/or (iii) that the offence alleged is an, offence under Section 408 of I.P.C. for temporary misapprortion of Rs. 5,339/- which amount has been subsequently paid by the accused, and/or (iv) that too but for an avoidable and unfortunate has committed by the trial Court, the question of remand would not have been arisen, and/or (v) whether the order of remand, in aforesaid fact of the case, would be an order for the prosecution or persecution, and/or (vi) whether it will be fair to the accused who is of about 72 years of age and was taken on a judicial anvil all these years has to further undergo trial for no fault of him, and/or (vii) whether in overall public interest, it would be just advisable to remand the, case for re-trial. The answers to all these, is obviously further trial is undesirable. Thus, having regard to the facts and circumstances of the case, though I do find that the order of acquittal is as wrong as it could be would not like to disturb the same and accordingly exercise of the suo motu inherent powers under Section 482 of the Code of Criminal Procedure, Ii hereby order the case proceedings to be dropped against the accused. Had this Court an opportunity of hearing this matter soon after the admission, the remand would have been an obvious order. It appears to me that in types of the cases like the present one and/or appeal for enhancement of sentence and/or such other and similar matters it is desirable that early fixed date of final hearing is given and the same is disposed of. Ii is distressing to note that such sort of cheap and easy tendency of disposing of the criminal case is increasing day by day and it is a time to cry halt (Para 8)
Result: Appeal dismissed.
( 1 ) THIS appeal presents a very peculiar and paradoxical picture wherein though on one hand this Court anhesitatingly has reached a conclusion that the impugned judgment and order of acquittal per se is a case of Rushed-up acquittal and hence being patently unjudicial and illegal deserves an obvious order of remand and yet on the other hand having regard to the facts and circumstances of the case enlisted hereunder at this stage this Court has a feeling that it would not be expedient in the larger interest of justice to remand the case as the same will be more of a prosecution rather than the prosecution of the accused. However but for the only plus point in this appeal viz. that it has provided an opportunity to express a word or two of advice to the erring trial Court and so defaulting other Courts to conduct and manage themselves with some sense of responsibility while trying criminal cases whole exercise of hearing this appeal and delivering the judgment would have been an exercise in futility as the ultimate result of this appeal is going to be dropping the proceedings against the accused. With utmost respect to such defaulting Courts it has got to be stated that such Rushed-up acquittal in clear disregard of ordinary judicial prudence is a matter of grave concern to anybody. The High Court in its appellate jurisdiction would surely quash and set aside such manifestly unjust orders as and when it comes across the same (but at the same time) it requires to be red-signalled that the further accountability of the trial Court for such an unfortunate and irresponsible orders and consequential result thereto cannot come to an end thereby.
( 2 ) TO start with this acquittal appeal arises out of a judgment and order dated 22/10/1980 rendered in Criminal Case No. 114 of 1979 passed by the learned J. M. F. C. Jasdan wherein Sypoi Alambhai Jamalbhai the respondent-accused herein who was charged for offence punishable under Sec. 408 I P. C. come to be discharged at the very threshold of the trial for the alleged non-prosecution.
( 3 ) IN brief it is the prosecution case that in the year 1977 the accused who was serving as a Secretary of the Moti Lakhavad Seva Sahkari Mandali committed a temporary misappropriation of Rs. 5 339 an amount which he received from various members of the society towards repayment of loan on different dates. It was alleged by the prosecution that though the accused issued receipts towards the said recovery of loans he did not place corresponding entries regarding the same in Rojmel account maintained by the Society. As result one Mr. S. D. Joshi Assistant Co-operative Officer from the office of the District Registrars Co-operative Society Rajkot filed complaint against the accused before the P. S. I. Vichhia Police Station. After an investigation was over on 30/04/1979 the accused came to be chargesheeted to stand trial for the aforesaid offence.
( 4 ) THE trial Court took cognizance of the case when chargesheet was filed on 30/04/1979 Thereafter for one reason or the other the proceedings went on being adjourned merrily from time to time and ultimately on 22/10/1980 at the very threshold of the trial before any witness could be examined the trial came to be terminated for non-prosecution by an order dated 22/10/1980 discharging the accused.
( 5 ) MR. D. K. Trivedi learned Addl. P. P. appearing for the State has submitted that the impugned order of acquittal passed by the trial Court is patently unjudicial and illegal and has resulted into a serious failure of justice. Ho further submitted that the trial Court ought not to have disposed of the case with such an undue haste more parti- cularly when charge against the accused was already framed and the trial Court had earlier ordered to issue summons on an application dated 16/10/1980 given by the learned A. P. P.
( 6 ) TO make good aforesaid submissions the learned Addl. P. P. has carefully taken me through the Rojkam proceedings of the case
