Masoom Ali vs State of Uttarakhand and others

Hon''ble Servesh Kumar Gupta, J.—By way of this petition, moved under/section 482 Cr.P.C., the prayer has been made to quash the order dated 13.7.2007 passed by the Additional Sessions Judge/First FTC, Dehradun in criminal revision no.100 of 2006 as well as the order dated 21.7.2006 passed by Additional CJM (First), Dehradun in criminal complaint case no.619 of 2006, both titled as Masoom Ali Vs. Irfan and others.

It is pertinent to mention that this Court has given hearing to learned counsel for the petitioner and learned Brief Holder on behalf of State, while none turns up to contest the petition on behalf of private opposite parties despite of sufficient service upon them.

It appears that a complaint no.619 of 2006 was filed by the petitioner against accused Irfan, Mohd. Islam, Jamil, Akbar and Shabbir Hassan. Both the parties are resident of Dehradun within the territorial jurisdiction of P.S. Sahaspur. Learned counsel for the petitioner has apprised that now Shabbir Hasan has died. After recording the statements under/section 200 and 202 Cr.P.C., the order of cognizance was passed on 28.8.2004 by Judicial Magistrate (First), Dehradun and the accused persons were asked to stand trial for the offence of Sections 504, 506, 406 and 420 IPC. In due course, covered by few dates, all the accused persons surrendered in the court, they were enlarged on bail by learned Magistrate, and on 3.8.2005, the requisite copies were given to learned counsel of the accused, although the same should have been served at the time of service of summons, but anyhow, on the asking of accused, those were probably again given to the accused persons and thereafter for the first time, the case was fixed for the evidence under/section 244 Cr.P.C. The witnesses had to be examined on 22.9.2005, but the complainant moved adjournment application which was unopposed, so another dated 8.12.2005 was fixed by J.M First, Dehradun for recording of evidence under/section 244 Cr.P.C.

On 8.12.2005, accused moved adjournment application which was not opposed, so the date 23.2.2006 was fixed for evidence.

On 23.2.2006 and next to that, i.e. 7.4.2006, the Presiding Officer was on leave, so the file could not be taken up for advancement of the proceedings.

On the next date, i.e. 22.6.2006, accused themselves moved adjournment application, so the file could not proceed further and the date was fixed for 21.7.2006 for evidence.

On 21.7.2006, complainant moved adjournment application and the exemption application was also moved on behalf of the accused from their counsel. Learned Magistrate rejected this application of adjournment and discharged the accused under/section 245 Cr.P.C., whereagainst the revision was also dismissed on 13.7.2007, upholding the order of the Magistrate. Assailing both the orders, this petition has been filed.

Learned counsel for the petitioner has argued that on the questioned date of 21.7.2006, it was only the second adjournment which was sought by complainant and prior to that, he cannot be blamed for protracting the trial because on two dates, the Presiding Officer was on leave and thereafter the accused themselves moved adjournment application. The learned Magistrate, in the impugned order, was misconceived to observe that the complainant was moving the adjournment applications on each and every date, while this was not the factual position, as stated above. The certified copy of the entire order sheet has also been annexed.

On a careful perusal of the order sheet of each and every date, it appears that learned Magistrate was mistaken while observing the failure of complainant to produce the witnesses, and moving the adjournment application on each and every date. So, both the impugned orders are not sustainable in the eyes of law and thus, are liable to be set aside.

As such, the impugned order dated 21.7.2006 passed by learned Magistrate and also the order dated 13.7.2007 passed by the Additional Sessions Judge in Revision, are hereby set aside and it is directed that the complaint be restored to its original number and the attendance of the accused persons be assured once again. If the accused persons appear, either in person or through their counsel, then two dates will be assigned, one after another, by learned Magistrate for examination of the witness, including the complainant under/section 244 Cr.P.C. If the complainant fails to utilize this opportunity of two dates, as stated above, then no further date will be granted to him for the purpose and the learned Magistrate would be at liberty to pass any order in accordance with law.

With the observations made above, the petition is allowed. Let the order be communicated to the court below.