Haridas Nivrutti Shinde vs Dinkar Janardhan Bhosale and others

By means of this Criminal Revision Application, the petitioner (Original Complainant) has impugned the Judgment and Order dated 24-1-1991, passed by the Chief Judicial Magistrate, Solapur, in Summary Trial Case No. 489 of 1988, acquitting the respondent Nos. 1 to 4 for offences punishable under sections 337, 323, 504, r/w 34, IPC.

In short, the prosecution case is that on 30-10-1987, at about 4.30 p.m. respondent Nos. 1 to 4 in furtherance of their common intention caused hurt to complainant Haridas Nivrutti Shinde in front of their house situated at Nirala vasti in the district of Solapur. The allegation is that the respondent no. 1 hurled a stone which struck on the forehead of the complainant and the respondent Nos. 2 to 4 assaulted him with fists and kicks and also abused him. After the complainant had lodged his FIR, he was medically examined and was found to have suffered a contused lacerated wound 2 cm x 1 cm on the forehead and an abrasion over the 4th ring finger of the right hand. After the usual investigation, the respondent Nos. 1 to 4 were charge-sheeted.

The respondent Nos. 1 to 4 were tried for offences punishable under sections 337, 323 and 504, IPC. Vide the impugned Judgment, they were acquitted u/s 337, IPC because, as observed in para 7 of the said Judgment, the stone was intentionally hurled by respondent No. 1 on the forehead of the complainant and an offence u/s 337, IPC contemplates of a rash or negligent act. They were acquitted u/s 504, IPC because, what were the abuses hurled by them, has not been disclosed in evidence by the witnesses. Finally, they were acquitted u/s 323, IPC on the ground that the said offence is a non-cognizable one and consequently, no investigation could have proceeded without previous order of a Magistrate, as contemplated by section 155(2), Cr.P.C.

In spite of the fact that the matter has been called out continuously from 9-6-1997, learned counsel for the petitioner and respondent Nos. 1 and 2, are not present. The matter was once called out and was passed over. Still, counsel for the said parties are not present. Consequently, with the assistance of the counsel for the respondent No. 5 - State of Maharashtra, I am disposing of this revision application on merits.

I have thoughtfully evaluated the acquittal of the respondent Nos. 1 to 4 on all the three counts. As far as their acquittal for an offence under sections 337 and 504, IPC is concerned, it is clear that the same has been correctly arrived at. However, the same in my view, cannot be said regarding their acquittal u/s 323, IPC. This is because, sub-clause (4) to section 155 Cr.P.C. provides thus :-

"Section 155 :

.....

(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable."

5-A. A perusal of the said sub-clause would show that where a case relates to two or more offences of which, at least one is cognizable, it shall be deemed to be a cognizable case. Since the offence u/s 337, IPC was a cognizable offence, by virtue of the provisions of section 155(4), Cr.P.C., the case became a cognizable case and once it became a cognizable case, no permission to investigate in respect of the offence u/s 323, IPC was required. Consequently in this view of the matter, the acquittal of the respondent Nos. 1 to 4 for offence u/s 323 r/w 34, IPC cannot be sustained in law.

The question which stares me is whether I should remand the case for re-trial ? This is because, by virtue of the embargo contained in sub-clause (3) of section 401, Cr.P.C. cannot convert a finding of acquittal into one of conviction. However, considering the totality of the circumstances, I am not inclined to remand the matter to the trial Court. Some of the circumstances which have influenced me are :-

a) the incident took place nearly 10 years ago and the maximum sentence for an offence u/s 323, IPC is one year''s R.I. or a fine which may extend to Rs. 1,000/- or both;

b) two trivial injuries have been sustained by the complainant;

c) judicial notice can be taken of the large pendency of the arrears of cases in the Courts of Metropolitan Magistrates and that being so, it would take a very large time before the same is decided; and

d) the revision has been pending in this Court for nearly 6 years and the respondents 1 to 4 have been sufficiently punished because, in this period the sword of Damocles was hanging on their head.

There are some cases where in preference to the wooden approach of slavishly and literally applying the law, larger considerations of justice, are more relevant and the larger considerations of justice have been spelt out by me in clauses (a) to (d) of the preceding para. They certainly do not require the matter being remanded for re-trial to the court below. Therefore, this is one of those cases where in spite of the fact that part of the impugned order is illegal, equities and larger considerations require that the impugned order be not set aside.

In the result, this Revision application is dismissed. Rule is discharged accordingly.

Revision dismissed.