The State of Bihar & Ors. v. Santosh Kuamr Upadhyay & Ors.

Officer, Shri S.K. Upadhayay who in haphazard manner proceeded with the trial and acquitted the accused by the order impugned was brought to the notice of the High Court under administrative side whereupon inquiry was entrusted to the 2 District & Sessions Judge, Sitamarhi and after the inquiry report, the Standing Committee gone through the same and vide its resolution dated 25.03.2008 under Agenda No.34, the Standing Committee resolved to challenge the order of acquittal and accordingly, office was instructed which happens to be the ground for exercising suo motu power.

3. The accused Vimal Kumar Shukla, the Presiding Officer, Shri S.K. Upadhayay as well as the complainant Ajit Kumar Thakur, Judicial Officer were arrayed as an Opposite Party whereupon they were noticed and on account thereof, they have put their presence.

4. Heard the parties. Perused the record.

5. A complaint was filed by Shri Ajit Kumar Thakur, Judicial Magistrate against Vimal Kumar Shukla, the learned counsel appearing on behalf of accused Jagan Jha along with other co-accused relating to Complaint Case No.52 of 1995 putting an allegation that after hearing the bail matter, while other co-accused were let of on bail, prayer for bail of Jagan Jha was rejected and on account thereof, the aforesaid learned counsel became enraged and behaved un-apathy by coming near dais, snatched the bail petition and power, erased name of Jagan Jha over petition as well as power and took him away from 3 custody of the court. The aforesaid complaint was sent to the learned Chief Judicial Magistrate, Sitamarhi vide letter no.32 dated 01.08.1995 whereupon learned Chief Judicial Magistrate took cognizance for an offence punishable under Section 225 /228 of the IPC and accordingly put the Opposite Party / accused Vimal Kumar Shukla on trial. From the aforesaid letter, it is also evident that B.C. of the learned Magistrate namely Sri Surendra Singh, both the orderly peon Ganga Prasad and Jagdish Bhagat as well as one advocate Sri Arun Kumar Singh were shown in whose presence occurrence had taken place.

6. It is apparent from the judgment impugned that the learned lower court had acquitted the Opposite Party / accused Vimal Kumar Shukla as no witness was produced on behalf of prosecution. It has also been mentioned in para-8 of the judgment that a direction was given to inform the learned counsel for the complainant but as learned counsel for the complainant could not be located as well as having the complainant failed to produce the witness and further there happens to be direction by the revisional court for speedy disposal, therefore the complainant’s case has been closed followed with judgment of acquittal. 4

7. The learned counsel for the Opposite Party more particularly on behalf of Vimal Kumar Shukla, it has been submitted that revision against acquittal should not be entertained in ordinary course of nature. It has further been submitted that the judgment impugned happens to be just legal and proper because of the fact that the complainant had failed to produce witness even he himself. It has further been submitted that it is not the duty of the court to procure attendance of the witness like a private party and then will proceed with the case. That means to say the action of the court should not be like a prosecutor.

8. As the complainant failed to make his presence during conduction of trial therefore the case was to be closed. The case cannot be kept opened for infinite period giving every sort of latitude to the complainant in utter violation of Article 21 of the Constitution of India. Hence, the learned lower court had rightly closed the case of the prosecution and had acquitted the Opposite Party.

9. The learned counsel who volunteered to assist the court as an amicus curiae has submitted that the shabby conduct of the learned lower court is itself apparent from the judgment impugned. While proceeding with the trial, the learned lower 5 court must have come across with the fact that origin of case happens to be over a complaint filed by a Judicial Magistrate in whose court the Opposite Party had committed an offence for which he was complained. The report also speaks with regard to presence of witnesses who are non else than employee of Civil Court, Sitamarhi itself along with one advocate who was also practicing at the Civil Court, Sitamarhi. In the judgment impugned itself the learned lower court had incorporated the fact that no Vakalatnama is on behalf of complainant in favour of any of the counsel then in that event, incorporating the fact under para-8 of the judgment that a direction was issued to inform the learned counsel for the complainant who could not met is nothing but an eye wash only to justify his illegal activities. Therefore the judgment is fit to be set aside.

10. The learned counsel for the learned Magistrate Sri Santosh Kumar Upadhayay has submitted that he should not have been impleaded as an opposite party because of the fact that he had passed the judgment impugned as a Judicial Officer and on account thereof, is immuned from being proceeded with. It has further been submitted that he is being prosecuted under administrative forum by the High Court itself.

11. In Janata Dal v. H.S. Chowdhary reported in (1992) 6 4 SCC 305, the Hon’ble Apex Court had occasion to deal with extra ordinary power of the Hon’ble Court in terms of Section 397, 401 of the Cr.P.C. and attracting the same suo motu. “128. Sections 397, 401 and 482 of the new Code are analogous to Sections 435, 439 and 561-A of the old Code of 1898 except for certain substitutions, omissions and modifications. Under Section 397, the High Court possesses the general power of superintendence over the actions of courts subordinate to it which discretionary power when administered on administration side, is known as the power of superintendence and on the judicial side as the power of revision. In exercise of the discretionary powers conferred on the High Court under the provisions of this section, the High Court can, at any stage, on its own motion, if it so desires and certainly when illegalities and irregularities resulting in injustice are brought to its notice, call for the records and examine them. The words in Section 435 are, however, very general and they empower the High Court to call for the record of a case not only when it intends to satisfy itself about the correctness of any finding, sentence or order but also as to the regularity of any proceeding of any subordinate court.

129. By virtue of the power under Section 401, the High Court can examine the proceedings of inferior courts if the necessity for doing so is brought to its notice in any manner, namely, (1) when the records have been called for by itself, or (2) when the proceedings otherwise comes to its knowledge. 130. The object of the revisional jurisdiction under Section 401 is to confer power upon superior criminal courts — a kind of paternal or supervisory jurisdiction — in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment which has resulted, on the one hand, or on the other hand in some underserved hardship to individuals. The controlling power of the High Court is discretionary and it must be exercised in the interest of justice with regard to all facts and circumstances of each particular case, anxious attention being given to the said facts and circumstances which vary greatly from case to case”. Therefore, the law propounded by the Hon’ble Apex Court permits exercise of suo motu power by the Hon’ble Court to correct miscarriage of justice arising out from misconception of law, irregularity of procedure etc. Hence, the step taken by the Hon’ble Court with regard to facts and circumstances of the case, 7 is found legally maintainable whereunder judgment of acquittal was passed.

12. After perusal of the judgment impugned, it is apparent that the learned lower court had passed the judgment in mechanical manner without appreciating the facts of the case, the nature of the case and the steps which was expected at his end. A Judicial Officer is not expected to sit as an idol rather he is expected to keep watch over the proceeding. When the trial had commenced on the basis of a report submitted by a Judicial Officer and when no counsel was engaged to conduct the trial, then in that event, it was incumbent upon the learned Magistrate to take assistance at least that of Assistant Public Prosecutor who are being deputed to conduct the State case or should have informed the District Judge with regard thereto. The judgment impugned speaks that no such step was ever taken up by the learned Magistrate and on account thereof, the record was found vulnerable.

13. True it is that there happens to be no distinction with regard to procedure to be followed up regarding a complaint case either filed by the authority or by an individual save and except during inception. That means to say the production of witnesses is expected at the end of complainant and in case a prayer is 8 made, the court will assist by issuing process for procurement of attendance of witnesses. However, as discussed above the learned Magistrate had made the complaint sterile by his conduct and further heading towards acquitting the Opposite Party.

14. In Zahira Habibulla’s case (reported in AIR 2004 SC 3114), it has been held:- “The Courts have to take a participatory role in a trial. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that the ultimate objective i.e. truth is arrived at. This becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness”

15. In Shailendra Kumar v. State of Bihar, [reported in (2002) 1 SCC 655], the observations of the Apex Court in para-9 are thus:- “9. In our view, in a murder trial it is sordid and repulsive matter that without informing the police station officer-in-charge, the matters are proceeded with by the court and by the APP and tried to be disposed of as if the prosecution has not led any evidence. From the facts stated above, it appears that the accused wants to frustrate the prosecution by unjustified means and it appears that by one way or the other the Additional Sessions Judge as well as the APP have not taken any interest in discharge of their duties. It was the duty of the Sessions Judge to issue summons to the investigating officer if he failed to remain present at the time of trial of the case. The presence of investigating officer at the time of trial is must. It is his duty to keep the witnesses present. If there is failure on the part of any witness to remain present, it is the duty of the court to take appropriate action issuance of bailable/non-bailable warrants, as the case may be. It should be well understood that the prosecution cannot be frustrated by such methods and victims of the crime cannot be left in a lurch”. including 9

16. In respect of failure of justice, the Apex Court, in Darbara Singh v. State of Punjab [reported in (2012) 10 SCC 476], has held thus:-

21. “Failure of justice” is an extremely pliable or facile expression, which can be made to fit into any situation in any case. The court must endeavour to find the truth. There would be “failure of justice”; not only by unjust conviction, but also by acquittal of the guilty, as a result of unjust failure to produce requisite evidence. Of course, the rights of the accused have to be kept in mind and also safeguarded, but they should not be over emphasised to the extent of forgetting that the victims also have rights”. Thus, the order impugned is found unsustainable in the eye of law and is accordingly set aside. Petition is allowed. The matter is remitted back to the learned lower court to proceed a fresh from the stage of evidence by taking all necessary precautions and will pass the judgment in accordance with law. Opposite Party No.2 is directed to appear before the learned lower court and will face the trial. In case there happens to be fault on his part, the learned lower court will take necessary steps for securing his attendance, in accordance with law. (Aditya Kumar Trivedi, J.) PATNA HIGH COURT Dated the 9th day of October., 2013 PRAKASH NARAYAN/A.F.R.