Bombay High Court
Netaji Bhagwanrao Taur vs The State Of Mah And Ors on 27 April, 2016
Bench: A.I.S. Cheema
Criminal Appeal No.368/2015
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.368 OF 2015
Netaji s/o Bhagwanrao Taur
Age 22 years, Occ. Agri.,
R/o Gunj, Tq. Ghansawangi,
District Jalna ... APPELLANT
(Original Complainant)
VERSUS
1. The State of Maharashtra
through Chief Secretary,
Home Department,
Mantralaya Mumbai - 32
(Copy to be served on
Public Prosecutor, High Court of
Bombay, Bench at Aurangabad)
2. Bakulabai w/o Bhagwanrao Taur,
Age 73 years, Occ. Agri.,
R/o Bramhanwadi, Post Ashti,
(Dhotarjoda), Tq. Partur, Dist. Jalna
3. Yusufbhai Moti Pathan (Bagwan)
Talkhedkar, Age 58 years, Occ. Agri.,
R/o Phule Nagar (Bus Stand),
Majalgaon, Tq. Majalgaon,
District Beed.
4. Laxman s/o Madhavrao Jadhav,
Age 48 years, Occ. Agri.
5. Arjun s/o Madhavrao Jadhav,
Age 53 years, Occ. Agri.
6. Maharudra s/o Kashinath Jadhav,
Age 25 years, Occ. Agri.
7. Santosh s/o Sakharam Shinde
Age 25 years, Occ. Agri.
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Criminal Appeal No.368/2015
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Nos.4 to 7 R/o Gunj,
Tq. Ghansawangi, District Jalna
8. Tukaram L. Jadhav,
Age 62 years, Occ. Nil (Retired Tahsildar)
Tq. Ghansawangi, District Jalna.
9. [ (Gopichand) Govind s/o Rupchand Chavan,
Age 52 years, Occ. Service (Circle Inspector)
Tq. Ghansawangi, District Jalna
At present Selu Tahashil,
District Parbhani. ]
(Respondent No.9 abated as per
Court's order dated 1.4.2016)
10. Ramdas s/o Haribhau Korde
Age 47 years, Occ. Service,
R/o Gunj (Talathi Sajja),
Tq. Ghansawangi, District Jalna.
... RESPONDENTS
.....
Shri V.M. Humbe, Advocate for appellant
Shri A.M. Phule, A.P.P. for State
Shri V.G. Mete, Advocate for respondent Nos.2 to 8 & 10
.....
CORAM: A.I.S. CHEEMA, J.
DATED: 27th April, 2016.
Date of reserving judgment : 21st April 2016
Date of pronouncing judgment : 27th April 2016.
JUDGMENT:
1. This appeal against acquittal has been filed by
original complainant. Respondent Nos.2 to 10 (hereinafter
referred to as accused) were arrayed as accused No.1 to 9
Criminal Appeal No.368/2015
respectively in S.T.C. No.582/2009 before the Judicial
Magistrate, First Class, Ghansawangi, District Jalna. The
complaint was dismissed for want of taking steps by the
complainant on 11.1.2012 and hence this appeal.
2. It is the case of the complainant that he has filed
civil dispute against accused No.1 Bakulabai. It is argued
that, the complainant claims to be adopted son of accused
No.1 Bakulabai,
ig aged about 70 years. The case of
complainant is that, he has filed suit against accused No.1 and
while the suit was pending, accused No.1 sold the disputed
land to accused Nos.3 to 6. The concerned land had various
fruit bearing trees and the purchasers cut down the trees
since 13.4.2007 and on 13.5.2007, burnt off the cattle fodder
depot in the field. Accused No.2 purchased the wood after
trees were cut. The complainant filed complaint to police
station as also before the Collector and Superintendent of
Police. However, the authorities did not take any cognizance
and so the private complaint came to be filed.
3. The copy of complaint shows that, accused No.7 is
Tahsildar, accused No.8 was Circle Officer and accused No.9 is
Talathi of the area concerned. According to the complaint,
Criminal Appeal No.368/2015
complainant took up dispute with the accused No.7 to 9 and
Collector, Superintendent of Police, Forest officers, but they
did not take any "effective" steps and police patil only did
panchanama. Thus, accused Nos.7 to 9 were made accused.
4. The appellant - complainant claims that summons
were issued to the accused persons and matter was for
awaiting summons on 12.7.2011 and 27.9.2011 and for steps
on 30.11.2011.
ig Trial Court dismissed the complaint on
11.1.2012 for want of prosecution, observing that complainant
was absent many times and the accused came to be
acquitted.
5. It is argued on behalf of the complainant by the
learned counsel that the trial Court should not have dismissed
the complaint. According to the learned counsel, the
complaint was for awaiting report of service of summons to
accused Nos.2 and 8 and was then fixed for steps. According
to the counsel, if the report of summons sent earlier had not
come back, the Judicial Magistrate, First Class did not indicate
as to what steps complainant should take and thus, according
to him, the complaint should not have been dismissed only
because the complainant and his Advocate were absent when
Criminal Appeal No.368/2015
it was kept for taking steps.
6. Against this, the learned counsel for respondents-
accused submitted that, the matter was a summary case,
which was pending since 5.6.2007 and even in 2012, service
of the accused had not been completed. Some of the accused
served were attending Court since long. Accused No.2 had
been arrayed as accused claiming that he was the purchaser
of the wood of the trees cut and accused No.8 was Circle
Officer. Even regarding accused No.8, who was Circle officer,
service was not completed and other accused were being put
to trouble. According to the counsel, the impugned order was
correctly passed.
7. Copy of roznama available shows that, the
complaint was filed on 5.6.2007. The Judicial Magistrate, First
Class called report under Section 202 and summons were
issued on 28.7.2009. In between, the matter was fixed on
various dates. After the summons were issued on 28.7.2009,
the service was got completed on other accused except
accused No.2 Yusufbhai and accused No.8 Gopichand. The
other accused were attending the proceedings. On 3.5.2011,
summons was directed to be re-issued. It was actually issued
Criminal Appeal No.368/2015
on 12.5.2011 and was returnable on 12.7.2011. Thus, a time
of two months was prescribed for return of summons. When
the matter came up on 12.7.2011, the complainant was
absent. The return of summons was awaited and matter was
posted after more than another two months for 27.9.2011.
On 27.9.2011, the complainant was absent and matter was
adjourned for awaiting summons and for orders on
30.11.2011. Thus, for almost six months from 12.5.2011,
summons had not come back and the Court posted the matter
for orders. On the adjourned date of 30.11.2011, complainant
as well as his Advocate were absent and the Court ordered
and posted the matter for taking steps as per roznama. The
matter was posted to 11.1.2012. On that day also the
complainant and his Advocate were absent. The Court passed
orders that the roznama shows that complainant and his
Advocate were absent since long and no steps had been taken
since many dates. The Court recorded that the complainant
did not appear to be interested in prosecuting the matter and
dismissed the complaint for want of prosecution. The Court
proceeded under Section 256 and acquitted the accused
persons.
8. The learned counsel for the appellant -
Criminal Appeal No.368/2015
complainant has submitted that the Court did not say as to
what steps the complainant should take. According to him, if
the return of summons was being awaited, the complainant
had nothing to do in it. I am not impressed by these
submissions. It was a summary case, which cannot be
allowed to protract for so many years without even taking
effective steps to get the service complete. In practice and
procedure, there are various steps a complainant can take to
ensure that service is complete on the accused. If on
12.5.2011, summons had been issued with returnable date of
12.7.2011 and till that date if the summons had not returned,
even if one date was given awaiting the same, it is futile to let
the matter get adjourned from time to time awaiting summons
as the returnable date once crossed the same summons
cannot be served thereafter without the returnable date being
renewed. In such contingency, an alert complainant would
seek re-issue of summons. The complainant can seek
reminder to the police station. There is no reason why
complainant could not have sought re-issue of summons and
taken Hamdast to the police station and assisted the police to
locate the respondent - accused and get the service
completed. This becomes more necessary when the other
accused had been served and were attending the Court and
Criminal Appeal No.368/2015
getting harassed as the matter was getting prolonged for want
of effective steps. What steps the complainant should take is
basically responsibility and prerogative of the complainant.
He has to seek assistance from the Court. It is not that the
complainant can just pay the process fee and sit back without
taking any steps. It is not for the Judicial Magistrate, First
Class to advice complainant as to what steps he should take.
The concern of the Court is that the matter should progress
and the reason why I have observed that it is for the
complainant to pursue and take effective steps because even
the police at times need assistance to locate the accused
whom the complainant knows best. In this matter, accused
No.8 was arrayed as "Gopichand" Rupchand Chavan, said to
be Circle Officer. As it has turned out in the course of appeal
when summons was sent to this accused, it turned out that
there was no such person as "Gopichand" Rupchand Chavan,
and there was only one "Govind" Rupchand Chavan, who had
already expired. Consequently, name of original accused
No.8, arrayed as respondent No.9 in this appeal was
bracketed by appellant as the appeal abated against him. Had
effective steps been taken in trial Court, this would have been
revealed in trial Court itself.
Criminal Appeal No.368/2015
9. Looking to the roznama and after having heard
counsel for both sides, I do not find that fault can be found
with the order passed by the Judicial Magistrate, First Class,
resorting to Section 256 of the Code of Criminal Procedure.
The matter was posted for complainant to take steps. As the
complainant failed to take steps, the Court was justified in
dismissing such old summary criminal case.
10.
Normally, cause of justice cannot be allowed to
suffer on mere technicalities and opportunities are given.
Keeping this in view, I had called upon the counsel for both
sides to submit as to what is the case of the complainant to
ensure that good cause should not suffer. As is the case of
complainant in complaint to Judicial Magistrate, First Class
and repeated by the complainant in the appeal memo as well
as arguments, it can be seen that, there is a civil suit pending
between the complainant and accused No.1, an old lady.
Accused No.2 Yusufbhai, who remained to be served, was
arrayed as a person who purchased the wood cut by accused
Nos.3 to 6. Although complainant claimed that he made
complaints to accused Nos.7 to 9, as well as Collector,
Superintendent of Police and Forest officers, the Collector,
Superintendent of Police and Forest officials were not arrayed
Criminal Appeal No.368/2015
as accused, but the Tahsildar, Circle Officer and Talathi were
put up as accused and the allegation was only that, in spite of
complaint, they had not taken effective steps. Apparently,
Section 197 of the Code of Criminal Procedure has been
forgotten by everybody. Looking to these factors, prima facie
I did not find that there is any good cause which would get
defeated by the impugned dismissal order, which otherwise is
correct looking to the manner in which the complainant was
pursuing the complaint.
11. The view taken by the Judicial Magistrate, First
Class, in the facts and circumstances to dismiss the complaint
and acquit the accused is a possible view. This appeal being
against acquittal, I do not find any reason to interfere.
12. The appeal is dismissed.
(A.I.S. CHEEMA, J.)
