Lachhman Singh Vs. Mahinder Singh and ors. - Court Judgment

H.C. Goel, J.

(1) -THE petition under Section 397 read with Sec, 482 of the Code of Criminal Procedure is directed against the impugned order dated 242 May 13, 1987 passed by Sh. Bharat Bhusban. Addl. Chief Metropolitan Magistrate, New Delhi dismissing the complaint of the complainant Shri Lachhman Singh. Inspector filed by him for the Central Excise & Customs, being an Inspector of that department for the offence under Sec. 135(1)(a) of the Customs Act 1962 and Section 5 of the Imports and Exports (Control) Act, 1947 for the three accused respondents being concerned in an attempt at fraudulent evasion of duty payable on the goods valued at Rs. 15,07.600.00 . The three accused-respondents were summoned by the Additional Chief Metropolitan Magistrate to appear before him for the aforesaid offences for January 23, 1985. All the three accused put in appearance. The petitioner was exempted from personal appearance and he was allowed to appear through his counsel, Shri Satish Aggarwal Advocate, through whom he appeared on a number of dates to which the case was adjourned from time to time for recording of the pre-charge evidence of the complainant. On some in between dates one witness of the complainant namely, Lachhman Singh had appeared whom, it appears that the complainant wanted to examine first of all, but his statement was not recorded on those dates. On August 14, 1986 the statement of Lachhman Singh Public Witness who was present was not recorded and the case was adjourned November 12, 1986 on the observation that documents were not on the file and the case was, thereforee being adjourned. On November 12, 1986 again one witness of the prosecution was present. There was, however, a request from the side of the complainant as the witness of the complainant who appeared had to go out of station. The case was adjourned to March 4, 1987 and March 5, 1988 for recording the entire evidence of the prosecution and it was also provided in the order that the documents sought to be produced by the complainant in the enquiry of the case must be filed within ten days thereof. On March 4, 1987 against Laehhman Singh was present. No document was, however, filed by the complainant on the record of the case. The case was adjourned to April. 9,1987 an the complainant was directed to file copies of the documents sought to be proved in evidence by that date. The date of March 5, 1987 was cancelled. No document was filed by the complainant up to April 9, 1987 or thereafter up to May 13, 1987 on which date the complaint was dismissed. On April 9, 1987 again Lachhman Singh, Public Witness I was present. The case was, however, adjourned to May 13, 1987 observing that Lachhman Singh could not be examined in the absence of documents. The exemption of the complainant from personal appearance on the date of hearing was cancelled and the complainant was directed to appear in person on each and every date of hearing in future. On the adjourned date of May 13, 1987 the complainant did not appear in person before the court However, his counsel Shri Satish Aggarwal Advocate put in appearance from the side of the complainant before the court. All the three accused-respondents were also present with their respective counsel. The complaint was dismissed by the learned Additional Chief Metropolitan Magistrate It is stated in the impugned order that the complaint has been pending for the last more than two years and no witness was examined by the complainant till then and the exemption of the complainant from personal appearance had also been cancelled earlier and that on that date i.e. on May 13, 1987 even the the complainant had not appeared in person, nor were the documents filed in the court. Under the circumstances the complaint was dismissed in default due to non-prosecution.

(2) A preliminary objection was raised by Mr. Harjinder Singh, learned counsel for respondents No 1 and 2, that the State was a necessary party to this petition and the State not having been imp leaded as a correspondent Along with the three accused-respondents, the petition was liable to be dismissed on that ground. It was submitted that whenever any criminal matter is disposed of by a court, including a complaint case, and when a proceeding is instituted against any order of the criminal court disposing of a criminal matter, including a complaint, the State has to be imp leaded as a party to the proceedings wherein the order of the criminal court is challenged. I do not find any merit in this submission. Mr. Harjinder Singh was unable to refer me to any provision either in the Code of Criminal Procedure or in the High Court Rules & Orders of this Court enjoining any such obligation on the part of the petitioner. The present one is a complaint case The State was not a party to the proceedings before the lower court. The complaint was dismissed at the initial stage of the holding of the pre-charge enquiry. Under the circumstances I am of the view that the State could not be considered to be an interested party in the result of the present petition as filed in this Court, either way, namely whether the petition is dismissed and the complaint of the complainant remains dismissed or this petition is allowed and the complaint of the complainant is restored and further enquiry in the same is directed to be held. To my mind, the State, in a complaint case,is unconcerned till charge is framed against the accused person. The position may, however, be different when charge is framed in a complaint case and in that case the State steps in and becomes a party interested in the further litigation. Merely because an order of a criminal court is in question before a higher court, to my mind, by itself does not make the State a necessary party to that proceeding and I see no basis for any distinction in this regard between an order passed by a criminal court and an order passed by a civil court. The question is not as to which court namely, civil or criminal court, passed the order, but it is the one as to who are the persons concerned with the litigation. I accordingly reject the said objection of Mr. Harjinder Singh.

(3) Now coming to the merits of the petition, a close reading of the impugned order shows that the complaint was not dismissed for the nonappearance of the complainant in person implicate under Section 249 Cr.P.C. It was dismissed for non-prosecution, which in turn was inferred from three alleged circumstances viz (i) that the complainant had not examined any witness till then, (ii) he had not filed the documents which were sought to be proved in evidence at the enquiry despite a direction of the court to that effect and (iii) non-appearance of the complainant in person on the date even though his counsel was present. As regards the first ground for the alleged non-prosecution; viz. that the complainant had not produced any oral evidence on the record, the complaint was not even fixed for recording of the evidence of the complaint on 13th. May, 1987 The case was fixed only for filing of the copies of the documents on which the complainant may be relying as was directed by the court. It appear that the court was of the view that the complainant should first file copies of such documents on the record of the case and it was only thereafter that he should proceed with the examination of his witnesses. As stated by me above the record reveals that the complainant had in fact offered to give his statement to the court as a witness in the enquiry earlier, but thrice he was sent back without recording his evidence viz. on August 14, 1986, March 4, 1987 and April 9, 1987 on the ground that be could not be examined till be had filed copies of the documents as relied on by him in the case. It is thus, obvious that there was no question of the complainant's failure in producing his oral evidence in the court up to May 13, 1987. The complaint was thereforee not liable to be dismissed for non-production of evidence by the complainant till 10th. May, 1987. This ground was thus not available as a circumstance to show that the complaint was not pursuing his complaint diligently or with promptitude.

(4) Now, as regard the non-filing of the documents by the complainant, admittedly there is no provision in the Code of Criminal Procedure under which a complainant can be directed to file copies of the documents which he (the complainant) may have to produce on the record as a part of his evidence, either at the trial or at the enquiry stage. There is also no provision casting a duty on the complainant even to file any list of documents as relied on by him on the record of the case at any stage of the case. The complainant is entitled to produce documents as relied on by him and to get them proved as and when the witness from whom the relevant document is to be proved comes in the witness box. Thus, in my opinion, the order of the learned Magistrate directing the complainant to file copies of the documents as relied on by the complainant before the complainant was called upon to produce his evidence at the enquiry was unwarranted and strictly speaking the complainant was not bound to comply with the same. Mr. Arora submitted that an order directing the complainant to file copies of the documents as relied on by him in the case could validly be passed by the learned Magistrate in a complaint case. In support of his submission he referred to the judgment of this Court in M/s Viniyoga International v. The State, 1985 Cr.L.J. 761. In this case it was held by H.L. Anand J. (as his Lordship then was) that the accused has got the right to get copies of Sec: 161(3) statements and of documents sought to be relied on by the prosecution at the threshold of the trial itself. This judgment has no bearing on the facts of the present case as that was a case in which the police had investigated the case of the commission of a cognizable offence, namely under Section 5 of the Imports & Exports (Control) Act, 1947. Though the offence was a cognizable one, cognizance could not be taken by the Court except on a complaint by the specified authority. It was under these circumstances that it was held that the police having investigated the case and having recorded the statement of the witnesses under Section 161 Cr.P.C., the mere fact that under the provisions of the Act a complaint, and not a police challan, was to be filed for the court to take cognizance of the offence, did not make any difference and in such as situation copies of the statements recorded under Section 161(3) Cr.P.C. and of documents sought to be relied on by the prosecution were required to be given to the accused. So far as the present case is concerned the main offence is under Section 135(1)(a) of the Customs Act, which is a non-cognizable offence. Further no investigation was conducted by the police in the case, nor was statement of any witness recorded under Section 161 Cr.P.C. It may also be stated here that even in the case of an offence under Section 5 of the Imports & Exports (Control) Act, 1947, a different view had been taken in two other cases by two other learned Single Judges of this Court namely, A.N. Lewis and another v. The State, (1974) 1 Delhi 410 and (ii) Joint Chief Controller of Imports & Exports v. M.L. Gupta, Cr. R. 256/72, decided on 5th December, 1972. In A.N. Lewis (supra) it was held that the offence committed under Section 5 of the Imports & Exports (Control) Act, 1947 being strictly prohibited from being taken cognizance of by a court, except on a complaint in writing made by an officer authorised in that behalf by the Central Government, it was not required of the officer of the police station, where the First Information Report regarding that offence was recorded, to forward to a Magistrate a report of his investigation and thereforee, there was no obligation to supply copies of the documents mentioned in Section 173(1) of the Code of Criminal Procedure. In the case of M.L. Gupta (supra) which was under Sections 120B, 420, 468 and 471 of the Indian Penal Code and Section 5 of the Imports & Exports (Control) Act. 1947 investigation had been conducted by the police and statements of witnesses had also been recorded by the police. It was held by M.R.A. Ansari J. (as his Lordship then was) that as no report under Section 173 was filed by the police the accused was not entitled to by given copies of the documents as required by Section 207 Cr.P.C. However, as pointed out by me above the case in hand stands on a different footing. I am, thereforee, not really called upon to deal with the matter that came in for consideration in the said cases. I accordingly hold that the order directing the complainant to file copies of documents was unwarranted and illegal. It may be pointed out here that a complainant may be otherwise persuaded to file copies of documents for speedy enquiry and/ or trial. However, no such order without the consent of the complainant can be passed. Next, even if it be assumed that the learned Magistrate could justifiably make such an order against the complainant, I am of the clear view that the learned Magistrate could, in any case, not dismiss the complaint for the non-compliance of such an order as there is no provision for dismissal of a complaint for any such default. Some other consequence viz. debarring the complainant from later producing its documentary evidence at the enquiry or at the trial stage might if at all, occur for the non-compliance of such an order.

(5) We are thus left with the third circumstance for the dismissal of the complaint, namely the non-appearance in person of the complainant. Section 249 of the Code of Complainant Procedure reads as below : '249. Absence of complainant,-When the proceeding having been instituted upon a complaint, and on any day fixed for the hearing of the case, the complainant is absent, and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his direction, notwithstanding any thing hereinbefore contained, at any time before the charge has been framed, discharge the accused.' Thus, this provision in terms says that in the event of non-appearance of the complainant under the category of cases to which this provision applies, it is not incumbent on the Magistrate to dismiss the complaint. It is in the discretion of the magistrate to dismiss the complaint or to keep the complaint alive and the matter may be adjourned. This discretion has to be exercised on sound judicious principles. In the present case the complainant is a public servant. His case is that be was posted at Rohtak as Inspector, Customs in May, 1987. May 13, 1987, which was the date fixed in the case, happened to be a gazetted holiday in all government offices on account of the 'Budh Purnima' and that he was under the genuine belief that the courts must also be closed on that day, that the date of 13th May, 1987 must have been given in the case under a mis-apprehension and that it was under these circumstances that he could not appear in the court on May 13, 1987. The fact that May 13. 1987 was a gazetted holiday with the Central Government or perhaps with the Delhi Administration as well, on account of 'Budh Purnima' is not disputed by the respondents. Admittedly, there had been no default on the part of the complainant in putting in appearance in the case earlier i.e. prior to May 13, 1987. It may also be stated here that this is not a case of commission of a minor offence and the case relates to the commission of a serious offence, which also is a relevant consideration to weigh with the court in exercising its Jurisdiction regarding the dismissal of a complaint for the non-appearance of the complainant in person. Further, no proceeding was to be taken on that day as the case had to be adjourned for the recording of the prosecution evidence in either of the two eventualities namely, whether the copies of the documents were filed by the complainant on that date or they were not so filed by him. It is a settled law that in a petition under Section 482 Cr.P.C. the question not merely, of legality but of propriety of the impugned order can be gone into. As pointed out by me above two of the three circumstances which weighed with the learned Magistrate in dismissing the complaint not having been found to be available to the respondents and there being a reasonable cause for the nonappearance of the complainant in person on concerned date, the complaint did not deserve to be dismissed on that ground. Under these circumstances I am of the view that the complaint ought not to have been dismissed in default of personal for appearance of the complainant and when his counsel was present and the order dismissing the complaint is illegal and unjustified.

(6) It may be stated here that at the hearing of the case a question arose as to whether the date of May 13, 1987 in question was the date of hearing, within the meaning to be given to these words as occurring in Section 249 of the Code of Criminal Procedure. It need not go into that question and I have proceeded on the assumption that was a date of hearing. In conclusion, in view of what has been said above I allow the petition, set aside the impugned order of the learned Magistrate and restore the complaint to his file. The learned Magistrate shall proceed with the complaint further in accordance with law. The parties are directed to appear before the court concerned on January 11, 1989.