Bombay High Court

Sitaram vs 5] The State Of Maharashtra on 20 October, 2012

Bench: Shrihari P. Davare

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                   AURANGABAD BENCH, AURANGABAD




                                                    
                    CRIMINAL APPEAL  NO.  621  OF 2012

    Sitaram s/o Ambadas Dhanad,




                                                   
    age 45 years, occ. Agril.,
    Ro Kate-Pimpalgaon,
    Tq. Gangapur, Dist. Aurangabad                     ...Appellant




                                      
                                                   [Orig.Complainant]
                         ig
                 VERSUS

    1]   Ashok s/o Manaji Gavhane,
                       
         age 52 years,occ. Agril.,

    2]     Kakasaheb s/o Ashok  Gavhane,
           age 33 years,occ. Agril.
      
   



    3]     Ganesh s/o Bhausaheb Gavhane,
           age 28 years,occ. Agril.

    4]     Gokul s/o Bhausaheb Gavhane,





           age 30 years,occ. Agril.

           All R/o Kate-Pimpalgaon,
           Tq. Gangapur, Dist. Aurangabad





    5]     The State of Maharashtra                  ...Respondents
                                             [Nos. 1 to 4 Orig. Accused]

                                        .....
    Shri  S.D.Kotkar, advocate for appellant
    Shri  P.P.Khandagale, advocate for respondent nos. 1 to 4
    Shri  B.J.Sonawane, A.P.P.  for respondent no.5
                                        .....




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                            CORAM  :    SHRIHARI  P.DAVARE, J.

                            DATED   :    20th October, 2012


    ORAL JUDGMENT  : - 




                                                   
    1]          Heard respective learned counsel for the parties.




                                       
    2]

This is an appeal preferred by the appellant (original

complainant) challenging the order, dated 17.8.2009, passed by

the learned Judicial Magistrate, First Class, Gangapur, thereby

dismissing the complaint filed by the complainant in default and

discharging the accused, for the offences punishable under

Sections 324, 323, 504, 506 r/w 34 of the Indian Penal Code,

since the complainant has filed the private complaint against

the accused and since the orders passed by the learned Trial

Court dismissing the complaint in default and discharging the

accused amounts to acquittal of the accused.

3] Admit. Shri P.P.Khandagale, learned counsel

waives service of notice for respondent nos. 1 to 4 and Shri

B.J.Sonawane, learned A.P.P. waives service of notice for

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respondent no.5, after admission. With the consent of the

learned counsel for the parties, present appeal is taken up for

final hearing.

4] It is alleged by the appellant (original complainant)

that on 1.8.2009 while he was working in the field of Anna

Trimbak Dhotre, the accused persons assaulted him by a

wooden handle of spade and sticks and thereby he sustained

serious injuries. Moreover, while assaulting to the complainant,

the accused also abused him. Thereafter the complainant was

required to be admitted in Public Health Centre, Gangapur and

the Medical Officer, Public Health Centre, Gangapur gave

medical treatment to him. Thereafter, the

complainant/appellant moved the police station, Gangapur, but

the police personnel refused to register the offence against the

respondents. Hence, the complainant was required to file

private complaint before the learned Judicial Magistrate, First

Class, Gangapur, bearing R.C.C. No. 196 of 2009 and copy

thereof is annexed to the appeal at Exh.'A'.

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    5]         Learned counsel for the appellant contended that the

respondents were served with the summons of the said

complaint. However, they sought time for execution of surety

bond repeatedly and at lastly furnished the surety bond before

the said court. However, thereafter the respondents remained

absent before the learned Trial court, and hence, bailable

warrants were issued against them and copy thereof is annexed

at Exh.'B' with the appeal. Learned counsel for the appellant

further submits that on 23.6.2012 the respondents were absent

before the learned trial court, and hence, their advocate moved

an application for exemption. However, the said application

came to be rejected by the learned trial court. Therefore, the

appellant preferred an application before the learned trial Court

requesting to issue non-bailable warrants against the

respondents, and accordingly, non-bailable warrants were

issued against the respondents on 23.6.2011 which were made

returnable on 17.8.2011.

6] However, it appears that in between, the respondents

appeared before the court on 3.8.2011 and filed an application

for cancellation of non-bailable warrants and the said

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non-bailable warrants appear to have been cancelled by the

learned trial court and the matter was posted on 17.8.2011 for

evidence before charge behind the back of the complainant i.e.

appellant herein. Thereafter, it is the contention of the appellant

that he was under the impression that date was 17.8.2011 for

the receipt of report of non-bailable warrants issued against the

respondents, and therefore, he did not remain present before

the learned trial court on 17.8.2011. Moreover, appellant was

also under the impression that so long the charge was not

framed, the court would not proceed for recording evidence of

the appellant. However, on 17.8.2011, the learned trial court

dismissed the complaint filed by the appellant in his absence

and discharged the respondents and closed the proceeding.

7] Learned counsel for the appellant further submits that

bare perusal of the roznama discloses that the appellant was

not absent on a single date before the learned trial court, except

on 17.8.2011. It is further contended that he has given

convincing explanation for his absence on 17.8.2011. The said

complaint should not have been dismissed in default on

17.8.2011, since the appellant was not aware about the

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appearance of the respondents and cancellation of warrants on

3.8.2011 and he had no notice thereof. According to the

learned counsel for the appellant, prejudice has been caused to

him due to dismissal of his complaint in default. Hence, the

learned counsel for the appellant urged that present appeal be

allowed and the appellant be given opportunity to prosecute his

complaint on its own merits before the learned trial court.

8] Learned counsel for the respondents opposed the

present appeal vehemently and submitted that this appeal shall

not be maintainable before this court in view of the amended

proviso to Section 372 of the Code of Criminal Procedure and

further submitted that proviso has been inserted to Section 372

of the Code of Criminal Procedure by way of amendment which

has come into effect from 31.12.2009 and the appellant has

been given right to file the appeal against acquittal before the

learned Sessions Judge. He further submitted that the

appellant has chosen wrong forum by filing present appeal

before this court, and hence, submitted that present appeal

deserves to be dismissed.

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    9]          I have perused the present appeal, its annexures, the

complaint filed by the appellant i.e. R.C.C. No. 196 of 2009 and

the roznama, more particularly, the roznama pertaining to dates

from 23.6.2011 to 17.8.2011 and the impugned order, dated

17.8.2011 passed on the said complaint as well as the orders

passed on the said date in the roznama of the said case and

heard the rival submissions advanced by the learned counsel

for the parties.

10] In so far as factual aspects of the present matter are

concerned, it is the matter of record that the appellant herein

filed private complaint against the respondents on 13.8.2009

before the learned Judicial Magistrate, First Class, Gangapur

under R.C.C. No. 196 of 2009 and the verification of the

complaint was recorded on 5.9.2009. Accordingly, learned

Judicial Magistrate, First Class, Gangapur after perusal of

verification of the complainant and documents annexed with the

complaint and also after hearing the complainant issued

process against the respondents/accused for the offences

punishable under Sections 324, 323, 504, 506 r/w 34 of the

Indian Penal Code on 5.9.2009 and the same was made

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returnable on 6.8.2009.

11] Accordingly, the respondents/accused appeared

through their advocate in the said case on 6.10.2009 and

preferred the application for bail. However, it appears from the

roznama that subsequently during the pendency of the said

trial, the respondents/accused remained absent, and

hence, non-bailable warrants were issued against them and

same were also cancelled later on the application preferred by

the respondents. Further roznama discloses that the said

proceeding was adjourned from time to time for recording of the

plea. The roznama dated 23.6.2011 reflects that the accused

were absent, hence, exemption application was filed by the

advocate for accused, but same was rejected. Hence, the

complainant filed an application for issuance of non-bailable

warrants against the accused. Accordingly, non-bailable

warrants were issued against the accused on 23.6.2011 and

same were made returnable on 17.8.2011, and case was

adjourned to 17.8.2012 for appearance.

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    12]        However,   it   appears   from   the   roznama   that   in

between, on 3.8.2011 the respondents/accused appeared

before the learned trial court and preferred an application for

cancellation of non-bailable warrants against the accused and

the said non-bailable warrants issued against the accused

appear to have been cancelled. Moreover, the said roznama,

more particularly, dated 3.8.2011 discloses that charge against

the accused was recorded vide Exh.'C-25' and the statements

of the accused were recorded at Exhs. 'C-26 to C-29' and the

case was adjourned for EBC i.e. evidence before charge on

17.8.2011. Further roznama, dated 17.8.2011 discloses that,

"the complainant and his advocate are absent when called

upon. The accused and their advocate are present. The order

is passed on Exh.1. Regular Criminal Case is dismissed and

the accused are discharged. Proceeding is closed."

13] Thus, it is apparently clear that non-bailable warrants

were issued against the accused on 23.6.2011 and same were

made returnable on 17.8.2011 and the said case was adjourned

to 17.8.2012 for appearance. However, in between the said

two dates the accused/respondents appeared before the trial

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court on 3.8.2011 i.e. behind the back of the complainant and

applied for cancellation of non-bailable warrants against the

accused, which appear to have been granted by the trial court

without notice to complainant and even as per roznama dated

3.8.2011 the charge against the accused was recorded at Exh.

'C-25' and their statements were recorded at Exhs. 'C-26 to

C-29', but curiously enough, the said case was adjourned for

EBC i.e. evidence before charge to 17.8.2011 i.e. behind the

back of the complainant. Hence, there is substance in the

contention raised by the learned counsel for the complainant

that he was under impression that the case was fixed on

17.8.2011 for appearance after service of non-bailable warrants

issued against the accused and he was not aware about the

afore said developments took place behind his back and

without notice to him on 3.8.2011, and therefore, he and his

advocate remained absent on 17.8.2011. Accordingly, since

they remained absent on the said date, the said Regular

Criminal Case was dismissed due to their absence, and

accused were discharged and the proceeding was closed.

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    14]        In fact, as per earlier roznama of 23.6.2011, the said

Regular Criminal Case was posted on 17.8.2011 for

appearance and not for hearing, but again due to development

on 3.8.2011 behind the back of the complainant and without

notice to him, the said Regular Criminal Case was posted on

17.8.2011 for evidence before charge. Hence, naturally the

complainant/appellant was not aware about fixation of said

Regular Criminal Case No. 196 of 2009 for evidence before

charge on 17.8.2011, since the development before the learned

trial court took place on 3.8.2011 behind his back and without

issuance of notice to him, which resulted into dismissal of the

complainant's complaint due to default and discharging the

accused on 17.8.2011, without giving any opportunity to the

complainant to lead evidence and to prosecute the said

complaint on its own merits.

15] Besides, the question arises when on 3.8.2011

charge against accused was recorded as per Exh. C-25 and

statements (plea) of the accused were recorded as per Exhs.

'C-26 to C-29', then how the case was posted on 17.8.2011 for

EBC i.e. evidence before charge reversing the wheels.

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Moreover, when case was posted on 17.8.2011 for appearance

after service of N.B.W. against the accused and not for hearing

as per very roznama, dated 23.6.2011, then how the case was

dismissed on 17.8.2011 on the ground of failure of the

complainant to lead evidence, when the case was not at all

fixed on 17.8.2011 for evidence as per earlier roznama, dated

23.6.2011. Thus, there are anomalies regarding the factual

aspects and present case appears to have been handled in

loose and casual manner.

16] As regards the legal aspect and the objection raised

by the learned counsel for the respondents raising the law

point, admittedly, the appellant herein filed a private complaint

against the respondents i.e. Regular Criminal Case No. 196 of

2009 on 13.8.2009 and the learned trial court issued process

thereon on 5.9.2011 for the offences punishable under Sections

323, 323, 504, 506 r/w 34 of the Indian Penal Code, and hence,

it is crystal clear that the said Regular Criminal Case was

instituted by the complainant by filing private complaint i.e. it is

the case instituted other wise than on the police report, which

comes under the Chapter XIX-B of the Code of Criminal

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Procedure as a Trial of warrant case by the Magistrates and is

governed by the provisions of Sections 244 to 247 of the Code

of Criminal Procedure. However, the cases instituted on police

report come under Chapter XIX-A of the Code of Criminal

Procedure which are warrant cases triable by the Magistrates

and Sections 238 to 243 of the Code of Criminal Procedure are

applicable thereto and since those cases are instituted on

police report, right has been conferred upon the victim to prefer

an appeal against any order passed by the court acquitting the

accused or convicting him for lesser offence or imposing

inadequate compensation, under the amended proviso to

Section 372 of the Code of Criminal Procedure, and such

appeal shall lie to the court to which an appeal ordinarily lies

against the order of conviction of such court.

17] However, so is not the position in the instant case,

since present case comes under Chapter XIX-B of the Code of

Criminal Procedure which has been instituted other wise than

on police report and same is governed by Sections 244 to 247

of the Code of Criminal Procedure, and hence, the appeal

against acquittal/discharge preferred in the cases governed by

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the said Sections under Chapter XIX-B of the Code of Criminal

Procedure shall come under the purview of Section 378 (4) of

the Code of Criminal Procedure. Hence, it is amply clear that

Section 372, more particularly, amended proviso thereto of the

Code of Criminal Procedure and Section 378 (4) of the Code of

Criminal Procedure, operate in different areas.

18]

Apart from that the scheme of Chapter XIX of the

Code of Criminal Procedure is such that the said Chapter is

divided into three parts i.e. 'XIXA, XIXB and XIXC' and Chapter

XIXA deals with the 'cases instituted on a police report', which

are governed by Sections 238 to 243 of the Code of Criminal

Procedure; whereas Chapter XIXB is related to 'cases instituted

otherwise than on police report' which are governed by

Sections 244 to 247 of the Code of Criminal Procedure; and

Chapter XIXC pertains to the 'conclusion of trial' comprising of

Sections 248 to 250 of the Code of Criminal Procedure, and the

said Chapter XIXC, which pertains to conclusion of trial,

consisting of Sections 248 to 250 of the Code of Criminal

Procedure is common to both the said parts i.e. applicable to

the cases which come under the ambit of both the categories

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i.e. under Chapters XIXA and XIXB. Thus, Section 248 (1)

under Chapter XIXC of the Code of Criminal Procedure in

respect of conclusion of trial prescribes that, "If, in any case,

under this Chapter in which a charge has been framed, the

Magistrate finds the accused not guilty, he shall record an order

of acquittal." In the case on hand, we are not concerned with

Section 248 Sub-sections (2) and (3) of the Code of Criminal

Procedure, which deal with the conviction/previous conviction,

but we are concerned with Section 248 (1) of the Code of

Criminal Procedure.

19] Admittedly, in the instant case, as per roznama, dated

3.8.2011, charge against the accused was recorded at Exh.

'C-25' and their statements were recorded under Exhs. 'C-26 to

C-29', and therefore, as per Section 248 (1) of the Code of

Criminal Procedure, the Magistrate was required to record an

order of acquittal, if he finds the accused not guilty. However,

in the present case, since the complainant and his advocate

were absent when called out and failed to lead the evidence,

the case was dismissed and the accused stood discharged as

per the order passed by the learned Trial Court on Exh. 1 and

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also in the roznama, and hence, it appears that the learned

Judicial Magistrate, First Class proceeded on the footing of

Section 249 of the Code of Criminal Procedure i.e. in the

situation of absence of the complainant, which reads as

follows :-

"249. Absence of complainant :- When the

proceedings have been instituted upon complaint, and on any day fixed for the hearing of the case,

the complaisant 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. "

20] The very essence of Section 249 of the Code of

Criminal Procedure is that when the proceeding has been

instituted upon the complaint, and on any date fixed for the

hearing thereof, and when the complainant is absent and if the

offence is lawfully compounded or is not a cognizable offence,

at any time before the charge has been framed, the Magistrate

may, in his discretion, notwithstanding anything herein before

contained, discharge the accused. However, so is not the

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position in the instant case, since although the proceeding has

been instituted upon the complaint, as per roznama, dated

23.6.2011, the case was fixed on 17.8.2011 for appearance and

not for hearing, and although the complainant was absent on

the said date and although the offence was lawfully

compoundable, the charge was already framed against the

accused on 3.8.2011 as per Exh. 'C-25', and the stage of the

case on 17.8.2011 as per roznama, dated 3.8.2011, was the

stage of evidence before charge, and therefore, learned

Magistrate should not have discharged the accused as per

Section 249 of the Code of Criminal Procedure and it was

incumbent upon the learned Magistrate to acquit the accused,

since charge has been already framed against the accused as

per Exh.'C-25' and even their statements were recorded as per

Exhs. 'C-26 to C-29' as per roznama, dated 3.8.2011. In this

scenario, the discharge recorded against the accused by the

learned Judicial Magistrate, First Class, Gangapur, District

Aurangabad by order, dated 17.8.2011 is required to be

construed as acquittal of the accused, and hence, provision

of Section 378, more particularly, Sub-section (4) thereof,

shall be applicable for the appeals against such acquittals.

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    21]          Thus, since present Regular Criminal Case has been

instituted upon the complaint of the complainant which is the

case instituted other wise than on the police report, comes

under the purview of Chapter XIX-B of the Code of Criminal

Procedure, and the appeals against acquittal arising out of the

said cases shall be governed under Section 378 of the Code of

Criminal Procedure, and therefore, application seeking leave to

file appeal under Section 378 (4) of the Code of Criminal

Procedure shall lie before this court only. Accordingly, there is

no substance in the argument canvassed by the learned

counsel for the respondents.

22] In the circumstances, present appeal deserves to be

allowed and the impugned order, dated 17.8.2011, passed by