Bombay High Court
Nulsi Wadia vs Phiroze J. Dastur And Others on 23 September, 2015
Bench: A.M. Thipsay
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.143 OF 2000
Nusli Wadia .. Appellant
Versus
S.Phiroze J. Dastur and ors .. Respondents
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Mr.Abhijeeet K. Mangade, Advocate for the appellant.
Mr.Prakash Naik with Mrs.Vrishali Raje, Advocate for respondent
nos.1 and 2.
Mrs.S.Gajare-Dhumal, APP for the Respondent State.
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CORAM : ABHAY M. THIPSAY, J.
DATED : 23rd SEPTEMBER, 2015
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ORAL JUDGMENT :-
1 The appellant is the original complainant. He had
filed a complaint against respondent nos.1, 2 and 3 herein.
Respondent nos.1 and 2 were summoned to appear and to answer
to the charge of an offence punishable under Section 500 of the
IPC read with Sections 34 and 109 of the IPC. Respondent no.3
was summoned to appear and to answer to the charge of the
offences punishable under Sections 500 and 501 of the IPC read
with Section 34 and/or Section 109 of the IPC. By an order dated
10th February 2000, the Metropolitan Magistrate, 23rd Court,
Esplanade, Mumbai, acquitted the respondents under the
provisions of Section 256 of the Code of Criminal Procedure
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(Code). The complainant has, after obtaining special leave of this
Court, filed the present Appeal challenging the said order of
acquittal.
2 The Appeal was listed for final hearing yesterday.
When it was called out, none appeared for the appellant. The
matter was kept back for some time, and again called out, but at
that time also, the counsel for the appellant was absent. The
Appeal, therefore, was heard in the absence of the counsel for the
appellant. After going through the Appeal Memo and the
annexures thereto, and after hearing Mr.Prakash Naik, learned
counsel for respondent nos.1 and 2, an order dismissing the
Appeal was pronounced in the morning session.
3 However, before the order could be transcribed, the
matter was mentioned by the learned counsel for the appellant,
praying that he be heard in the matter. In the presence of the
counsel for both the parties, it was decided that the matter be
placed on board today, and would be heard afresh.
4 Though technically, an order dismissing the Appeal
had been pronounced, since the order had not been signed, and
had not even been transcribed, I have thought it fit to recall the
said order for the reason that the same had been passed without
hearing the counsel for the appellant. In the interest of justice,
therefore, the Appeal is today heard again after giving an
opportunity to the learned counsel for the appellant to argue the
matter.
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5 For the sake of convenience and clarity, the appellant
shall be referred to as 'the complainant' and the respondent nos.1,
2 and 3 as 'the accused'.
6 The question is whether the order passed by the
Magistrate acquitting the accused persons, needs to be interfered
with or not. For deciding this, reference to a few facts and dates
would be necessary.
7 The process against the accused was issued by an
order dated 26th August 1993. The plea of the accused persons
was recorded on 7th April 1994. The roznama of the said data
indicates that the case was thereafter kept for recording of
evidence.
8 I have carefully gone through the roznama of the
case, a certified copy of which is annexed to the Appeal Memo. It
appears that the complainant did not remain present before the
Magistrate at any time after the issuance of process, except,
perhaps on 8th December 1994. It appears that totally 29
adjournments were granted by the Magistrate after the plea of the
accused persons was recorded, and the case was kept for recording
of evidence. It is on the 30 th date given i.e. 10th February 2000
that accused came to be acquitted as contemplated under section
256 of the Code of Criminal Procedure.
9 Mr.Naik contended that the order passed by the
Magistrate is proper and legal. He submitted that the case was
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continuously kept for hearing, but the complainant did not remain
present before the Court at any time during the span of 5 years
and, that therefore, the learned Magistrate was quite justified and
right in acquitting the accused in view of the absence of the
complainant. Undoubtedly, there is substance in the contention
advanced by Mr.Naik, and that is why this Court was inclined to
accept the contention and dismiss the Appeal. However, after
hearing the learned counsel for the appellant, I am of the view
that it would be in the interest of justice to allow the Appeal and
remand the matter back to the Magistrate for proceeding further
with the complaint in accordance with law for the following
reasons.
10 The learned counsel for the complainant has pointed
out that even the accused persons have been remaining absent on
the dates of hearing as were being fixed by the Magistrate from
time to time. A perusal of the roznama indicates that this is
factually correct. The accused persons had never been remaining
present in person before the Magistrate on any of the dates. Thus,
though the absence of the complainant for a long period has been
highlighted, the fact that even the accused had not been remaining
present before the Magistrate, cannot be overlooked.
11 A perusal of the roznama indicates that on a number
of dates, the case was adjourned by consent of the counsel for both
the parties. In fact, apparently, there was no grievance expressed
by any of the parties at any time about the fact that no progress
was being made in the case.
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12 When so much latitude was being shown to the
parties by the learned Magistrate, as is evident from the fact that
he freely entertained the requests for adjournment of the case, and
did not insist on the complainant proceeding with the matter, the
complainant could not have anticipated that on a given date, the
accused would suddenly be acquitted on the ground of his
absence. The impugned order came to be passed on 10th February
2000, and before that, the case had appeared on the board of the
Magistrate on 23rd December 1999. On that day, the complainant
was exempted from personal appearance. The accused were also
absent, though their counsel was present. The roznama of 23 rd
December 1999 does not show that the Magistrate had indicated
to the counsel for the complainant, and/or to the counsel for the
accused that on the next date, no adjournment in the matter
would be granted. In fact, the roznama shows that the matter
was, simplicitor, being adjourned without any specific directions or
instructions.
13 When the case had been technically appearing before
the Magistrate for recording of evidence since June 1994, and
when no objection was raised by any of the parties about the fact
that no evidence was being adduced, and when adjournments
were being taken and granted by consent of the parties, it was not
proper on the part of the Magistrate to have suddenly focused on
the absence of the complainant on a given date and to have taken
an extreme step of acquitting the accused. Incidentally, it may be
observed that the roznama of any of the dates since June 1994
does not specifically state that the case was kept for recording of
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evidence, making the personal presence of the complainant,
essential.
14 The learned counsel for the appellant has brought to
my notice the nature of the alleged defamatory publication. He
submitted that the imputations are of a serious nature, and that,
the complainant would be seriously prejudiced if he is not allowed
to prosecute the complaint against the accused persons.
15 An order of acquittal passed under section 256 of the
Code does not involve adjudication of the merits of the matter.
Such order is passed on account of the absence of the
complainant. Therefore, while dealing with an Appeal from an
order of acquittal passed under section 256 of the Code, the
Appellate Court should have due regard to the reasons for the
absence of the complainant on a given date, as may be put forth
before it, and also to the prejudice that is likely to be caused to the
complainant by being deprived of an opportunity to prosecute the
matter on merits, and bring it to a logical conclusion.
16 Mr.Prakash Naik has placed reliance on two decisions
rendered by this Court.
(i) Smt.Prema Ramanand Hattangadi Vs.
State of Maharashtra & Anr 1
(ii) Shankarlal Bisanlal Kamad Vs. State
of Maharashtra & Anr2
1 2012 All MR (Cri) 2394
2 2001 All MR (Cri) 1700
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However, these decisions have been rendered on the facts that
were before this Court in those Appeals. None of the observations
made therein apply to the instant case, where as aforesaid, the
accused had also been remaining absent before the Magistrate and
adjournments, without any protest from any party were freely
being granted by the Magistrate. The complainant had no reason
to anticipate a sudden change in the attitude of the Magistrate.
17 In my opinion, in the circumstances of the case, the
Magistrate ought to have forewarned the complainant - and even
the accused - that no further adjournments would be granted, and
that the matter would be proceeded with by recording the
evidence. Even the presence of the accused would be necessary if
evidence was to be recorded.
18 In my opinion, it would be in the interest of justice to
set aside the order of acquittal and remand the matter to the
Magistrate for proceeding further with the complaint in
accordance with law. However, since the matter has already
remained pending before this Court for a period of 15 years, and
since the complaint had been filed in the year 1993, it would be
necessary to give appropriate directions to the learned Magistrate
and to parties to ensure an early disposal of the case.
19 In the peculiar facts of the case, though the Appeal is
being allowed, it would be proper to award suitable costs to the
respondent nos.1 and 2 who had been defending the Appeal since
last about 15 years.
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20 In the result, the Appeal is allowed.
21 The impugned order is set aside.
22 The matter is remanded back to the Magistrate with a
direction to proceed further with the complaint in accordance with
law.
23 The learned Magistrate shall expedite the trial of the
case and complete it within a period of one year from the date of
receipt of the Record and Proceedings by him.
24 The appellant shall appear before the Magistrate on
12th October 2015. The appellant shall pay costs of Rs.25,000/-
each to the respondent nos.1 and 2 by depositing the same in the
Court of the learned Magistrate within a period of two weeks from
today.
25 The costs shall be paid by the Magistrate to the
respective respondents as soon as they appear before the
Magistrate.
26 Appeal is disposed of in the aforesaid terms.
27 Record and Proceedings be sent back forthwith.
(ABHAY M. THIPSAY,J)
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CERTIFICATE
Certified to be true and correct copy of the original
signed Judgment/Order.
