AI Structured Summary
Not yet generated for this judgment
Judgment
K.J. Vaidya, J.—The petitioners who are the original accused, have by this Misc. Criminal Application, brought under challenge the
impugned order issuing process against them by die learned J.M.F.C, Kalol passed on the basis of the complaint filed by the respondent No. 1
herein for the alleged offences punishable under Sees. 406,420 and 114 of the Indian Penal Code and registered as a Criminal Case No. 491 of
1990 inter alia praying for quashing and setting aside the same.
Perused the complaint. Heard the learned Advocates appearing for the respective parties. At this stage on bare perusual of the complaint, it is
indeed not possible for this Court either to reach a definite conclusion that a dispute between the parties is purely and exclusively of the civil nature
and/or that the allegations made in the complaint prima facie even does not disclose any offence. Thus, taking into consideration the facts alleged in
the complaint two facts essentially emerge therefrom; viz., - (i) the offences alleged against the petitioners under Sections 406, 420 and 114 of the
IPC are warrant triable cases to be tried as provided in Chapter XIV of the Code; and (ii) in particular, the present complaint being otherwise than
on the police report that is to say, by the private complainant himself in the Court, the same would be specifically governed by Sees. 244 and 245
of the Code. For ready reference the said two provisions are reproduced hereunder:
Section 244
(1) When, in any warrant case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate
shall proceed to hear the prosecution and take all shuch evidence as may be produced in support of the prosecution.
(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any
document or other thing.
Section 245
(1) If, upon taking all evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused
has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing in this Section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons
to be recorded by such Magistrate, he considers the charge to be groundless.
2.1. Now on persuing the aforesaid Section 245(2) of the Code, it is very clear that there is indeed nothing to prevent the learned Magistrate from
discharging the accused at any previous stage of the case, if he considers the charge to be groundless. When such is the clear-cut legal provision, it
is for the accused to make a suitable application praying for the discharge and satisfy the concerned Court to secure the same instead of rushing of
this Court to quash the process which as already stated above he is not entitled to. In this view of the matter, merely because by the time stage of
framing the charge comes, the accused has to attend the Court for indefinitely long period till the prosecution evidence is recorded and is over, is
hardly a ground to interfere u/s 482 of the Code, when on reading the complaint at this stage it cannot be said that the process issued pursuant
thereto is, indeed an abuse of the process of law. Of course, this Court is quite conscious of the fact that having regard to the provisions contained
in Section 244 of the Code, when the accused appears or is brought before the learned Magistrate, the learned Magistrate is required to proceed
to hear the prosecution and take all such evidence as may be produced in support of the allegations made in the complaint. This further means that
by the time the stage arrives for the accused to pray for discharge, he has to invariably attend the Court, time and again at the time when the
prosecution evidence is recorded for the purpose of framing the charge. This Court is also further conscious of the fact that many a time, false,
frivolous and vexatious complaints are filed in the Court only with a view to harass the innocent persons. This Court is also further conscious of the
fact that these days firstly because of frequent indiscreet adjournments and strike calls; secondly, because of some sick-note of either the learned
A.P.P or the learned Advocate appearing for the accused; or thirdly, because the Court itself sometimes overburdened with the back-log of cases
to be attended and some other reasons are not available, the cases are just not conducted on the appointed dates and as a result, the accused has
to visit again and again to the Court. Such sort of indefinite frequent compulsory visits to the Courts surely causes great deal of physical, mental and
financial distress! It is indeed quite unimaginable as to what would happen to the accused, persons who are just dragged to the Courts from a
considerable long distance like the one in the instant case!! Further, not only this but despite regular attendance in the Court, if sometimes due to
circumstances entirely beyond the control of the accused, he remain absent, many a times the Court act quite hastly issuing even non-bailable
warrant against him adding to his misfortune. This in a given case would be virtually nothing less than an unwarranted pre-trial punishment. In other
words, mere accusation would entail physical, mental and financial torture, which neither law has envisaged nor the Court has a right to inflict:
inadvertently even. The reason is, in case if ultimately the complaint turns out to be false, how indeed the concerned Court is to compensate or
make good the unwarrnated hardships and sufferings of the accused because in some cases even the exemplary cost would be quite inadequate! In
this view of the matter, if at some later stage, merely because some remedy is provided by virtue of Section 245(2) of the Code for discharge, if at
inital stage, by virtue of Section 244 if the accused persons have to compulsorily attend the Court, for indefinite period while prosecution evidence
is being recorded till the stage for framing of charge, that would surely to that extent put them to severe untold hardships and inconveniences! And
in that case, what indeed would be the fate and face of the ""Justice"" if ultimately, the accused despite having undergone all sorts of hardships and
inconveniences, the learned Magistrate finds the case against him to be groundless and discharges him! How such predicament and me miserable
lot of the accused persons are to be compensated? Who would indeed give them back their precious time lost in attending the Court proceedings:
apart physical, mental and financial sufferings undergone--is a question which shall have to be kept at the back of mind by every Court which many
a time is found to be mechanically issuing the process and thereafter indiscreetly adjourning the case from dates to dates to the utter embarrassment
of the accused persons. In order to meet with such patently unjust harsh and merciless situation wherein on mere accusation, many a times
groundless and false, the accused becomes victim of oppressive operation of the law, condemned before convicted, some serious thinking is
required to be done. To bear with such a tricky situation is simply unbearable for any accused more particularly when he is falsely implicated to
wreck personal vengeance abusing the process of the Court, and accordingly, the accused atleast deserve to be liberally exempted from appearing
before the Court on service of the summons and also at the time of recording the preliminary evidence for the propose of framing the charge. In
fact, these days, on receiving the complaint, be it a summons case or a warrant triable case, before issuing the process pursuant thereto, the Court
should bear in mind the aforesaid glaring aspects of uncalled for hardships and inconvenience to the accused persons and accordingly, while issuing
the process, it should also make it clear alongwith the process from itself that (i) in case, if it is a summons triable case, the accused can appear
through the learned Advocate and make his submissions whether the complaint prima facie discloses any offences or not ""as the order issuing
process is an interim order and not a judgment which can be varied or recalled."" The fact that the process has already been issued is no bar to
drop the proceedings if the complaint on face of it does not disclose any offence against the accused, as held bthe Supreme Court in case of K.M.
Mathew Vs. State of Kerala and another, Similarly (ii) if it is not a warrant triable case, the accused may in the first instance be permitted to appear
through his learned Advocate and thereafter till the recording of prosecution evidence is over, and he applies for discharge u/s 245(2) of the Code,
unless of course in some cases at some stage the learned Magistrate feels that die presence of the accused is unavoidable while recording the
evidence. Unless of course if ultimately, prima facie, case is made out to frame the charge then thereafter at trial, the accused is supposed to remain
present whenever the prosecution evidence is being recorded, unless for some genuine and convincing reasons grant exemption to the accused.
This sort of just and expedient relief exempting the accused in a given case will not only surely frustrate the device of some scheming unscrupulous
complainants out to unduly harass innocent person but the same as well further save the Court from being inadvertently even instrument in hands of
the spiteful complainant of unjust oppression of the accused by falsely dragging him into the Court. In case, the Court accepts the application for
discharge, then to that extent, the accused would be saved from harassment and inconvenience of attending the Court.
In this view of the matter, till the time in a summons case, on the date summons is made returnable and thereafter, in case of warrant triable
cases, till the charge is framed, it shall be the duty of the Court to exempt the accused from appearing before the Court unless facts of the case are
gross and warrant otherwise. This should be scrupulously followed with a view to see that the Court procedure is not abused as a lever to wreck
personal vengeance upon the accused tiirough the instrumentality of none other than the Court itself. Of course, in case if the complaint makes out a
case that the presence of the accused before the Court is must at the time of recording evidence of the parties, then me Court may examine the
said aspect and if satisfied pass an appropriate order as desired by the Compalinant. Nodoubt as per the requirement of Section 244 of the Code,
on service of the summons, the accused has got to appear before the Court and thereafter when the prosecution evidence is recorded but this
Court feels that instead of mechanical application of the Section, the appearance of the accused can reasonably be deferred or suspended for
further some time to save him from the aforesaid hardships and inconvenience to that extent and accordingly in the overall interest of justice a little
judicial discretion is required to be exercised regarding appearance of the accused on service of the summons. One cannot over-look the fact that
Justice"" does not mean ""Justice to the complainant only"" that is to say entertaining his complaint and mechanically issuing summons, asking the
accused to remain present on a particular date. To get just, fair and reasonable treatment at the hands of the Court - is also equally right of the
accused and thereby ""justice"" to him at the hands of the Court. In this view of the matter, die Court mindful of holding in balance the scales of
justice can ill-afford to overlook this glaring aspect of unfair trial to me accused - the otherside of the coin of Justice!!
In the result, this Misc. Criminal Application is partly allowed. The petitioners are relegated to appear through his learned Advocate before die
learned Magistrate to make appropriate application at me relevant time and stage u/s 245(2) of the Code. The learned Magistrate is directed to
exempt the presence of the petitioners before him till meir application u/s 245(2) of the Code is finally heard and decided on merits according to
law. Interim relief vacated. Rule is made absolute to the aforesaid extent.