Judgment:
ORDER
S.S. Dani, J.
1. Heard Shri S.C. Bora, Counsel for petitioners, Shri B.R. Warma, Counsel for respondent No. 1 and Shri. N.S. Choudhari, Additional Public Prosecutor, for the respondent No. 2 - State.
2. Rule returnable forthwith and the matter is taken up for final hearing by consent.
3. The present respondent No. 1 approached Kotwali Police Station, Ahmednagar on 9-2-1993 and alleged that at about 3.00 p.m. on that day when he had gone to the house of the present petitioners alongwith Court bailiff and while he was stepping down the stairs-case the 2 petitioners assaulted the complainant. The concerned police took no cognizance and directed the present respondent No. 1 to approach the Court. The present respondent No. 1 thereafter filed complaint on 17-3-1993 before the Judicial Magistrate First Class, Ahmednagar and it was numbered as Summary Criminal Case No. 1186 of 1993. In the said criminal case it is alleged, in addition to the abuses and assaults by sticks that the accused present petitioner also threatened the complainant with dire consequences. The concerned Magistrate then recorded the verification of the present respondent No. 1. In the said verification it is then alleged that the present petitioners abused the complainant and assaulted him with sticks and threatened him to kill. On the basis of the complaint and the verification the trial Magistrate by an order dated 30-3-1993 directed to issue process under sections 323, 504, 506 read with section 34 of the Indian Penal Code. In pursuance of the said process the present petitioners appeared before the trial Court and the criminal case adjourned from time to time. The present petitioners accused then moved the trial Court by application Exh. 30 on 3-8-1996 for dropping the proceedings in view of the ruling of the Supreme Court reported in 'Common Cause' a registered Society through its Director v. Union of India : (1996)2MLJ1 on the ground that the criminal case was pending against these petitioners for more than 2 years and did not commence till submission of the application. The present respondent No. 1 complainant filed his say at Exh. 34 and resisted the application. By an order dated 9-10-1996 the trial Magistrate rejected the said application and refused to drop the proceedings on the ground that the ruling of the Supreme Court was not applicable to the facts of the case at hand. The petitioners accused then took up the matter to the Sessions Court in Criminal Revision No. 471 of 1996 and by an order dated 16-3-1998 it came to be dismissed by the Sessions Court. It is against these 2 orders that the petitioners-accused have approached this Court in the present criminal application under section 482 of the Code of Criminal Procedure.
4. Shri Bora, learned Counsel for the petitioners, submits that admittedly the criminal case is pending for more than 2 years against the petitioners and the trial had not commenced and it is further submitted that considering the recitals in the complaint or the F.I.R. filed before the police there was no case for an offence under section 506 Part 2 of the Indian Penal Code. It is further submitted that the other offences alleged against the present petitioners are under sections 323 & 504 of the Indian Penal Code and as such, the punishment was not more than 3 years. On this basis it is, therefore, submitted that the ruling of the Supreme Court in 'Common Cause' case is applicable to the facts of the present case and as such both the courts below committed error in not dropping the criminal proceedings and discharging the accused. Shri Warma, learned Counsel for the respondent No. 1 complainant, however, has submitted that considering the conduct of the present petitioners accused it can be said that the delay was due to absence of the present petitioners accused and/as such, the petitioners should not be allowed to take advantage of their own conduct and, therefore, the ruling of the Supreme Court in 'Common Cause' case has been rightly held as inapplicable in the facts of the present case. It is further submitted by Shri Warma, the learned Counsel for respondent No. 1, that, by a subsequent decision of the Supreme Court it is made clear that the benefit of the earlier case is not available to those accused who are guilty for delaying tactics and for postponement of the trial. Shri Warma, learned Counsel for respondent No. 1, further submits that the petitioners have been rightly held as disentitled to the benefits of the ruling of the Supreme Court in 'Common Cause' case.
5. It is to be noted at the inception that the trial Magistrate rejected the applications of the present petitioners-accused solely on the ground that one of the offences alleged against the petitioners was punishable with imprisonment of 7 years and on this basis it is held by the trial Magistrate that as the punishment was more than 2 years the benefit of the Supreme Court ruling in 'Common Cause' case cannot be given to the present petitioners accused. This has been confirmed by the Additional Sessions Judge, on this ground as well as on further ground that the petitioners-accused were responsible for the delay in trial. It is, therefore, to be ascertained on the facts on record as to whether the petitioners can be given benefit of the Supreme Court ruling or whether it can be denied in view of the directions given in the subsequent decision.
6. The F.I.R. lodged by the respondent No. 1 complainant to the police on 9-2-1993 is at Exhibit 'A' and it is specifically alleged that these 2 petitioners accused assaulted the complainant Subhash while he was stepping down the stairs-case alongwith the Court bailiff. The complainant respondent No. 1 is specific in this complaint that while he, alongwith the Court bailiff, was stepping down, these 2 petitioners appeared and petitioner No. 2 Ashok was armed with a stick and he started assaulting the complainant. The complainant is further emphatic in his complaint that at that time the petitioner No. 1 Rajendra hold the complainant by his hair and he also assaulted him with hands. It is then further stated in the complaint that thereafter both the petitioners-accused disappeared from the scene. It is, therefore, crystal clear that it is a case of simple hurt punishable under section 323, I.P.C. that has been made out by the present respondent No. 1 complainant in his complaint lodged on 9-2-1993. Further it may be noted that when the respondent No. 1 complainant approached the trial Court for filing the Criminal Case No. 1186/1993 something more is added to what has been stated by him in the original F.I.R. On perusal of the complaint filed before the Court (Exhibit 'B') it is clear that in addition to the case of assault by the stick and hands by these 2 petitioners accused it is further grievance of the complainant that these 2 accused threatened the complainant and also abused him. The complainant respondent No. 1 has further averred in this complaint that at the time of the incident these petitioners accused abused, assaulted with stick and also threatened him with death. It is, therefore, clear that the case in respect of abuses and the threat with dire consequence of death is conspicuously absent in the original complaint lodged on 9-2-1993 and is raised for the first time in the complaint filed before the Court on 17-3-1993. On the basis of the verification recorded by the trial Magistrate, the process under sections 323, 504, 506 read with section 34 of the Indian Penal Code came to be issued against these petitioners by order dated 30-3-1993. It is pertinent to note that there is no process issued against the petitioners for offence under section 506 Part 2 of the I.P.C. Further, as stated above, the charges for offences under sections 504 and 506 simpliciter are made on the basis of the allegations made in the subsequent complaint dated 17-3-1993. It is, therefore, clear that initially the case pleaded by the respondent No. 1 against the petitioners was simply for offence under section 323, I.P.C. and there was no case for an offence under section 506 Part 2, I.P.C. So far as the allegations in respect of offence under section 506 Part 2, I.P.C. is concerned, the benefit of the 'Common Cause' case cannot be given in as much as, the said offence is punishable for 7 years imprisonment. In the case at hand, it may be reiterated, the allegations made by the complainant at the first instance are in respect of offences under sections 323 and 504 and even if the process is issued on the basis of the recitals and the verification of the 2nd complaint, the process is not issued for an offence punishable under section 506 Part 2, I.P.C. In view of this, it, therefore, cannot be held that the allegation against the present petitioners accused made by the respondent No. 1 is for offence under section 506 Part 2 of the Indian Penal Code and as such, the trial Magistrate and the Additional Sessions Judge both were in error in not giving the benefit of the ruling of the Supreme Court in the 'Common Cause' case to these 2 petitioners.
In view of the recitals in the complaint lodged by the respondent No. 1 initially and in view of the case made out only under section 323, I.P.C. and as the trial was admittedly not commenced for the period of more than two years, both the courts below should have, therefore, granted the application and should have given the benefit of the ruling of the Supreme Court in the 'Common Cause' case.
7. On perusal of the judgment of the Additional Sessions Judge it is also disclosed that the benefit is refused to these petitioners on the ground that they were responsible for delaying the trial. This, however, cannot be accepted. It may be noted at this stage that the process was issued by an order dated 30-3-1993 and the revision was decided against the present petitioners on 13-2-1995 while the writ petition was decided against the petitioners on 17-2-1995. It is also noted in the order of the trial Magistrate that the petitioner No. 1 appeared on 20-2-1995 before the trial Court while the petitioner No. 2 appeared on 11-7-1996 and the present application, Exh. 30, for claiming the benefit of the Supreme Court ruling is made on 3-8-1996. It is not in dispute that during the pendency of the revision as well as the writ petition the trial before the Judicial Magistrate was stayed. In view, of this, it, therefore, cannot be said that the petitioners were at fault for not getting the trial commenced. It may be noted in this connection that on certain occasions the respondent No. 1 himself was absent and the petitioners had also applied to the trial Court for dismissing the complaint for his absence. In view of all this, it cannot be held that the trial was delayed at the instance of these petitioners accused. In view of this, the orders of the trial Court as well as the Sessions Court are required to be quashed and set aside and the application, Exh. 30, in Criminal Case No. 1186 of 1993 is required to be allowed.
8. In the result, Criminal Application No. 794 of 1998 succeeds. The order dated 9-10-1996 of the 4th Joint Judicial Magistrate, First Class, Ahmednagar on Exhibit 30 in Summary Trial Case No. 1186 of 1993 dismissing the application and the order dated 16-3-1998 of the Additional Sessions Judge, Ahmednagar dismissing the Criminal Revision No. 471 of 1996 are hereby quashed and set aside and it is ordered that the criminal proceedings pending in Summary Trial Case No. 1186 of 1993 against these petitioners be closed and the petitioners accused stand acquitted of the offences for which they are charged.
9. Rule made absolute in the above terms.
10. Application succeed.