JUDGMENT
K.J. Vaidya, J.
1. ‘Can any Court deny justice to the complainant on the ground that the case has become old particularly when the complainant on his part has contributed nothing to occasion the delay in trial?’ This is a question in focus round which the merits of the acquittal appeal are appreciated hereunder.
2. This acquittal appeal arises out of the judgment and order of acquittal dated 17th March, 1981, rendered in Criminal Case No. 723 of 1980 by the learned Metropolitan Magistrate Court No. 10, Ahmedabad wherein the respondent accused Amrut Nathu and three others who came to be tried for the offence punishable under Sections 323, 504 and 114 of I. P. C. came to be acquitted.
3. In brief, the appellant before this Court is an injured complainant one Mr. Madhupkumar, J. Prem, at the relevant time, a Municipal Corporator and a practising Advocate in the lower Courts at Ahmedabad. The respondent accused herein are the neighbours of the said complainant. The alleged incident in question took place on 22nd March, 1980, at about 13.45 hrs. On that day, the complainant was at his house since some guests were to visit his house on account of the engagement of his younger brother. It is the case of the complainant that an iron cot after it was washed, was kept for drying-out under the sun-shine behind his house. At this point of time, respondent-accused suddenly got enraged and started giving filthy abuses by alleging that bugs from the cot of the complainant were passing into their cot. In midst of all this, the accused No. 1-Amrut Nathu took up a stone and gave a blow with it on the head of the complainant and the accused No. 3-Bai Ratan also threw the stone injuring the left hand thumb and finger of the complainant which resulted in the bleeding. This incident was witnessed by his son Harsh and one professor whose name the complainant did not know. Thereafter, the complainant summoned a mobile van in which he was carried to Smt. Shardaben Chimanlal Lalbhai General Hospital, Saraspur, Ahmedabad, and was admitted as an indoor patient and was discharged from the hospital on 23rd March, 1980, as he had to attend the engagement function. On the basis of these facts, the N. C. complaint was filed before Gomtipur Police Station on the very day of the incident. Since the complaint filed was a complaint for an offence under Section 323 being N. C. complaint, the complainant thought it proper to file another complaint before the trial Court on 25th March, 1980, as the proceeding two days viz., 23rd and 24th March, 1980 were holidays being Sunday and Ramnavmi respectively. The trial Court after registering the said complaint as Criminal Case No. 723 of 1980, ordered the issuance of summons against the respondent-accused for offences punishable under Sections 323, 504, 506(1) and 34 I. C. C. by an order dated 25th March, 1980. Thereafter, it appears that for one reason or the other, the matter was lying in a cold storage for about an year i.e., about 27 times the matter did appear on the board at the regular interval, but could not be proceeded with for one reason or another. On 17th March, 1981, the matter was called out and on behalf of the complainant, an application for adjournment was submitted which came to be rejected by the trial Court holding – to quote the same – ‘that the complaint is old one having been filed in March, 1980 and therefore the application was rejected’. While acquitting the accused persons, the trial Court in its judgment further observed that ‘despite the reasonable time given, no evidence has been produced. The case filed in March, 1980, and that plea of the same came to be recorded on 4th October, 1980, by prolonging the case for indefinite period, it will not serve the interest of justice. Hence, in absence of the evidence, the accused are acquitted.’
4. Feeling aggrieved and dissatisfied by the impugned judgment and order of acquittal, the complainant has preferred the present acquittal appeal, which came to be admitted as long as back on 30th July, 1981.
5. Mr. Panchal, learned Advocate appearing for the appellant-complainant submits that the impugned order of acquittal is patently illegal and unjust in as much as the observation made by the trial Court in its judgment, to quote the same – ‘despite reasonable time being given, no evidence has been produced’ – is totally incorrect as could be seen on verification of the Rojkam proceedings. Mr. Panchal in order to make good this submission, has taken me through Rojkam proceedings of the case. Mr. Panchal further submitted that the complainant who is a busy practising lawyer had practically all throughout but for the 3 dates attended the Court and yet as bone out from the Rojkam, for no fault of him, his case could not be taken up earlier through present in the Court. Mr. Panchal submits that whatever adjournments the complainant had sought for were for just and valid reasons under the following circumstances viz., (i) the reasons for seeking first adjournment on 12-9-1980 was for attending some after-death religious ceremony of family member; (ii) the reason for seeking second adjournment on 20-1-1981 was that since he was contesting the municipal election scheduled to be held on 25-1-1981, he was busy with the same. Thereafter the case was adjourned to 29-1-1981. (iii) the reason for seeking third adjournment on 29-1-1981 was that it was the day for counting of the votes and his presence was necessary. Mr. Panchal further submits that such a simple thing as ‘plea of the accused’ which hardly taxes any time and which could have been recorded at the earliest, came to be recorded after about six months, Right from the date of filing the complaint before the Court, the complainant had remained present all throughout but for three occasions. However, the case went on being adjourned from time to time for no fault of the complainant as could be seen from the record. Ultimately, the plea of the accused came to be recorded on 4th October, 1980, and on the very day, the accused Nos. 1, 3 and 4 sought permission seeking exemption, which was granted, that is to say, worry of these accused for remaining present before the Court was over. Mr. Panchal submits that whatever adjournments the complainant had sought for, were for just and hones reasons and not by way of any scheming device of unnecessarily protracting the proceeding so as to keep the sword of criminal proceedings dangling over the head of the accused persons with a view to harass them. Mr. Panchal further submitted that when the accused person had obtained exemption from the Court, they were saved of all possible inconveniences in attending the Court. Under such circumstances, where was the justification for the trial Court to throw away the complaint in such a chevalier fashion. Mr. Panchal submitted that the criminal complaint filed by the complainant is a genuine one and that this genuineness is fully demonstrated by the attending circumstances viz., (i) summoning of the police van by the injured complainant immediately after the incident; (ii) immediately going to the hospital to dress-up the injuries where Dr. H. M. Bhatia and Ajit H. Shah M. O. Shardaben Chimanlal Lalbhai General Hospital, examined and treated him; and (iii) the medical certificate disclosing the nature of the injuries. Further, in order to satisfy the conscience of this Court, Mr. Panchal has placed on record a copy of medical certificate issued by Dr. D. G. Shah who examined him on 23rd March, 1980 Mr. Panchal has also shown to me the original certificate issued by Dr. Shah from his file. At this juncture I do not see any reason to doubt the truth and genuineness of the said medical certificate which is found to be issued on a printed letter-head of the said hospital, duly sealed and signed by Dr. D. G. Shah. The injuries shown in the said certificate are as under:
1. CLW 6 x 1 x 0.5 cm. over left parietal region.
2. CLW 1 x 0.5 cm. over right little finger.
3. Small abrression over dorsum of right thumb 0.5 x 0.5 cm.
4. Xray report reveal no fracture over skull or hand.
According to Mr. Panchal, this certificate prima facie shows that the concerned accused had given blow with the stone on the parietal region of the complainant as revealed by injury No. 1 and so far as the other injuries are concerned, it appears that the complainant must have received the same while making attempts to save and protect his face and head by covering the said part by right hand. It appears that by a sheer hand of providence, the complainant escaped with minor injuries, as the injuries on the head could have proved quite serious as the parietal region is a most vital and delicate part of the body. Mr. Panchal finally submitted that the accused has been wrongly acquitted and the case deserves to be remanded to the trial Court.
6. As against the above, Mr. Padia, the learned Advocate (appointed) for the accused made the following two submissions:
(i) That the offence alleged against the accused by this time, has become a decade old, and therefore, stale enough to merit any consideration at this stage.
(ii) That having regard to the trivial nature of alleged offence, assuming without admitting that there is some substance in a complaint against accused, this Court need not interfere at such a belated stage for the simple reason that by remanding the matter, ultimately this Court would be unnecessarily delaying the hearing and disposal of those fresh cases which already on the board of the trial Court.
7. Now, the aforesaid two submissions of Mr. Padia are little oversimplification of the situation and that apart, at the very out-set, it must be stated that the question involved in this appeal is not merely to adjudge whether the order of acquittal is right or wrong, as the larger question of concern and anxiety is the very questionable method and manner of disposing of the criminal case.
8. Now, regarding first submission of Mr. Padia, it can not be denied that the offence alleged, by now is factually ten years old, but that by itself can not improve the situation any more in the favour of accused as the complainant can legitimately re-question this submission of Mr. Padia by asking this Court as to how and who is responsible for the said delay ? It is an undisputed fact that neither before the trial Court nor before this Court, the complainant has done anything as a result of which the case has been dragged on to be labelled old and ten years old. Thus, to accept the first submission of Mr. Padia would simply mean that this Court also should commit and perpitrate the very mistake which trial Court unfortunately appears to have committed caught unaware. Mr. Padia should not forget that in this case, acquittal is based on (i) a baseless assertion of the trial Court that despite opportunities being given to the complainant, no evidence came to be led by him, and (ii) that the case has become old one, which stands contradicted by Rojkam proceeding itself. As a matter of fact, today the poor complainant stands wronged not only by the accused who caused physical injury to him, but by the trial Court as well which refused to redress the said wrong by doing injustice. Such a method and manner of disposing of the case is nothing but a sheer injustice. Can a doctor refuse medical treatment to a person on the ground that his disease had become old? It is indeed too difficult to understand as to how the citizen can be denied his legitimate right of complaint being decided on merits, on the ground that the case had become old one particularly when the complainant was not at fault for the said delay? And yet surpringly that has been done in the present case. If such a light-hearted practice and tendency of dubbing the case as old one and then to get it disposed of, is not checked and controlled in time, then having regard to the mounting arrears of criminal cases in the trial Court, one would not be surprised to find most of the cases becoming older and then to be ready to be disposed of with a straight jacket formula of the case being old one. Our Courts are already over burdened with backload of cases and this threatening situation of badkload is gradually drifting from bad to the worse with everyday that is passing. Courts are working under trying and exasperating conditions. As stated earlier, the Courts which are already burdened with the arrears of work are going to be further overburdened in view of the following augmenting factors viz., (i) the increasing spate of fresh litigation because of the growing sense of awareness of the citizens about their legal and Constitutional rights; (ii) the paucity of Judges to handle the cases; (iii) utter neglect of the judicial system in the country; (iv) the proceeding protraction trickeries of litigants; (v) strikes; (vi) riots, etc. If that is so, then such cheep, unjust ‘old case disposal formula’ (emphasis supplied) is allowed to be countenanced lightly, the criminal justice can ultimately turn out to be a mere mechanical force of receiving and registering the cases on the one end and stamping of the same as disposed of at the other end in total disregard of the substantive and procedural laws of the land and fundamental right of the citizen to get justice from the Court. This is just not done and cannot be permitted.
9. The next submission of Mr. Padia that the alleged offences under Section 323 and 506(2) of I.P.C. is trivial enough to be interfered with at such a belated stage and that too in an acquittal appeal, has no substance. Firstly because the injury received by the complainant can not be said to be that light that the person of ordinary sense and temper would not complain of harm caused thereby. In a case of Mrs. Veeda Menzes v. Y.H. Ibrahimkhan and Anr. reported in 1966, Cri. LJ 1489(8), the Supreme Court while discussing the meaning of the word ‘trivial character’ occurring in Section 95 of the I.P.C., has said that “whether an act which amounts to an offence is ‘trivial’ would depend upon (i) the nature of the injury (ii) the position of the parties, (iii) relation between them, (iv) situation in which they are placed, (v) the knowledge or intention with which the offending act is done; and (vi) other related circumstances”. Applying this test, it is very clear that the alleged offence can not be said to be of a trivial character. As a matter of fact, but for the hand of providence, an injury on the parietal region could have been as serious as it could be. Secondly, merely because the offence alleged against the accused is an offence under Section 323, 506(2) of I.P.C., that by itself also does not mean that complaint of such offence can be thrown off without the same being examined on merits. It is not right to contend that only serious offences like murder, rape, riots, decoity, etc., are to be tried seriously. The duty to act justly, fairly, legally and reasonably does not depend upon what type of the cases the Court is called upon to try-rather the whole emphasis is upon a subjective sense of a Judge as to how honestly and efficiently the judicial duty is to be performed, Thirdly, in order to get justice from the Court, an aggrieved victim of crime has to (i) spend some amount on litigation by way of an Advocate fees and other expenses; (ii) undergo some physical and mental stresses and strains while travelling the distance to the Court; (iii) wait expectantly for sometime in a crowded court-room till the case is called out-sometime with, sometime without accommodation to seat; (iv) more often then not to return home tired and frustrated because of some strikes or adjournments; (v) lose some income if the leave is to be obtained without pay for attending the Court proceedings. Now, even after having undergone all this physical, mental and financial hardships and inconveniences, over and above the insult and injury received at the hands of the accused, if the cases are to be disposed of with much more emphasis on disposals rather than justice, an aggrieved victim of the crime is bound to nourish the feeling of being down and dejected – as if his act of filing complaint against the accused praying for justice was an offence and that the hardship and inconveniences listed above suffered by him were by way of punishment, ‘strangely a situation where the complainant feels punished first before the accused can be punished at all’. If the trial Court cares to remain alive to this pitiable picture of hard labour for justice by an aggrieved victim of the crime, then perhaps, such disposals can end. And if the trial Court ignoring the labour for justice put in by the victim of the crime, fails to record, recognize and accept this dissatisfaction in time, then same has all potentiality to gradually building up socio-psychological reactions to the judicial system shattering the faith of the people in the administration of justice; and if this happens, the clock culture and civilisation will start beating backwards to those days were awayed by spirit of vendatta scores will be settled in street.
9.1 The result of the above discussion is obviously an order of remand with the following objects in mind viz., (i) let not the trial Court labour under disillusionment that the High Court with many more matters of importance to be attended, under the pressure of work, will not bother to mind such small matters and that it can persist with impunity in such manifestly indiscreet acts of disposal without the same being depricated and disapproved; (ii) let not an aggrieved victim of the crime leave court-doors, down and dejected with an impression that justice is illusory and idle formality on papers with sound and fury of arguments and in substance signifying nothing; (iii) let not the accused gloat under any disillusionment that once by chance he secures acquittal or discharge, thereafter he will not be made answerable to the process of law. Consciousness is the only basis on which one can expect orderliness in the situation can be resorted. And thus, this order of remand is an attempt to impart that sense of consciousness to the aforesaid needy components of our judicial system if that can improve and restore the situation in trial Courts. The High Court being at helm of affairs in matters of protecting the constitution, Constitutional rights of the citizen with all its power of superintendence, cannot afford to feel any in giving directions to the trial Courts when it feels that the tendency of cheap disposals increasingly growing in the trial Courts is detremental to the citizens and overall judicial system.
10. In the result, this appeal succeeds and is allowed and the order of acquittal is hereby quashed and set aside. Having regard to the facts and circumstances of the case, the matter is remanded to the trial Court with a direction – (i) to restore the Criminal Case No. 723 of 1980 on the board and dispose of the same on merits according to law after affording fair and reasonable opportunity to both sides; (ii) since the alleged offence had taken place long back in the year 1980, the trial Court is directed to give this case top-most priority and dispose of the same preferably, on or before 30th April, 1990; (iii) that the exemption granted earlier to the accused persons will have to be cancelled after giving them notice in this regard in order to see that the time when the trial proceeds, their presence is secured; (iv) that Mr. Panchal, the learned Advocate for the complainant undertakes and assures this Court that he will ask the complainant to report to the trial Court the result of this appeal on or before 28th February, 1990, and will get date fixed for further hearing and onward trial of the case from the Court.