IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APP (U/S) No.5 of 2011 MAHA SUNDARI DEVI wife of late Kailashpati Singh, resident of village Raunia, P.S. Naubatpur, District Patna at present residing at Mohalla Mithila Colony, P.S.Digha, District Patna … … … Appellant Versus 1. THE STATE OF BIHAR 2. Sri Sunder Singh son of Sriban Narayan Singh 3. Sri Virendra Kumar son of Sri Sunder Singh 4. Sri Anand Kumar son of Sri Sunder Singh 5. Smt. Meena Devi wife of Sri Anand Kumar All resident of village Raunia, P.S. Naubatpur, District Patna … … Respondents For the appellant: Shri Shekhar Singh, Adv. Shri Shree Niwas Madhuban, Adv. For the Stater: Shree Syed Ashfaque Ahmad, A.P.P. For respondent nos. 2 to 3: Shri Shiva Shankar Prasad Singh, Adv. ----------- Dharnidhar Jha, J.- This appeal is being disposed of at the admission stage itself as the parties have appeared. Learned counsel for the respondents has also filed his counter affidavit in opposition to the admission and disposal of the present appeal. 2. The background giving rise to the filing of the Special Leave application to Appeal and, thereafter, the present Criminal Appeal has been noticed by this Court and recorded in its earlier order passed on 1.4.2011. That order is adopted as part of the present order and this is simply required to be noted that the order of acquittal which was passed by the learned Judicial Magistrate, Ist Class, Danapur, in Complaint case No. 775 C of 2005 on 24.8.2009 could simply not to be sustained. 3. After appearance of the accused persons was complete on 26.3.2007, the case was fixed for evidence under Section 244Cr. P.C. and it appears that two witnesses were produced by the complainant. 2 The complainant examined herself on 16.6.2007 as P.W. 1 and her evidence was recorded under Section 244 Cr. P.C. and she was discharged. Another witness, namely, Shyamdeo Sharma was examined on 7.11.2008 and was discharged. It further appears that on 18.5.2008 also one witness Deo Narain Singh was in attendance but his evidence was not recorded. The order dated 20.4.2009 shows that the Presiding Officer of the Court had been transferred and there was no attendance of one witness also and, as such, the next date fixed in the above noted complaint case was 5.6.2009. It appears that on 5.6.2009, the record of the case was not put up before the Presiding Officer of the Court and all on a sudden on 16.7.2009 the same was put up before the In-charge Officer It appears that a date, may be 18.9.2009, was fixed but that was interpolated to make it 18.7.2009 and again on that date there was no placing of the record before any court and in the meantime on 29.7.2009 an order transferring the case from the earlier court to the court of Shri V.K.Srivastava, Judicial Magistrate, Ist Class, Danapur, was passed by the learned Sessions Judge and, accordingly, the records of Complaint Case No. 775C of 2005 was received in the transferee court on 29.7.2009. While acknowledging receipt of the records, the record was directed to be put up before the Presiding Officer on 30.7.2009 and on 30.7.2009 the evidence of the complainant under Section 244 Cr. P.C. was closed. 4. It may be pertinent to point out that the complainant was not knowing that her case had been transferred from the earlier court to the court of Shri V.K.Srivastava by order of the learned Sessions Judge on 29.7.2009 and further that the record had been received in any court 3 and that Shri V.K.Srivastava, Judicial Magistrate, had directed listing of the case before him on 30.7.2009. The fact that the case was transferred and the date was changed or fixed were never brought into the knowledge of the complainant through her counsel and all on a sudden almost on the very day the record was placed before the court for its perusal, the learned Magistrate was directing shutting down the evidence of the complainant under Section 244 Cr. P.C. Not only that, the charges were framed on 4.8.2009, i.e., after about five days of closure of the evidence i.e., on 10.8.2009. The complainant was directed to produce her evidence and in a matter of three dates the evidence was closed and on that very date, i.e., 24.8.2009 the judgment of acquittal was passed. 5. I have noted down the actions of a Judge who appears recording and passing the judgment consciously and that could hardly convince any reasonable person about the propriety of the judgment of acquittal, which could not be upheld on account of the reasons which appear emerging from the order recorded by Shri V.K.Srivastava, Judicial Magistrate Ist Class, on transfer. 6. While hearing the appeal, Shri Shiva Shankar Prasad Singh, learned counsel for the respondents was submitting that this Court ought to appreciate that it was the normal duty of the complainant to produce witnesses under Section 246(2) Cr. P.C. and the complainant was keeping herself away from the court proceedings and was quite aloof to her responsibilities of producing the witnesses. In that background, the learned Magistrate could not be faulted for shutting 4 down the prosecution evidence under Section 246 Cr. P.C. also and to proceed to deliver the judgment of acquittal. 7. I could have appreciated the submissions of Shri Singh had there been some orders indicating that the complainant had the knowledge about the transfer of her case which I have just noted. In order to establishing as to how recklessly the Magistrate was proceeding in the case is evident from the fact that he was probably not even careful to put his intentions of passing some effective judicial orders against the interest of the complainant into her knowledge. Standing Instructions of the Court which were circulated long back in the early eighties could have guided the Magistrate, if he could have consulted those instructions, to take steps for bringing into the knowledge at least of the counsel of the complainant, the order of transfer passed by the learned Sessions Judge, Patna, directing Complaint Case No. 775C of 2005 to be transferred to his Court. Not only that, he ought to have taken steps to inform the counsel of the complainant as she was not appearing that he had received the records and the complainant was to fulfil her statutory obligation of producing witnesses under Section 246(2) Cr. P.C. He did not pay any heed to the provision and he also appears not consulting his conscience so as to proceeding ex parte against the complainant in such a haste as within twenty six days of receiving the records he was passing the judgment of acquittal and that too ex parte against the set judicial norms. These facets of the case are themselves enough to record a finding that the judgment was passed in utter haste and without caring for any judicial propriety as also the set principles of law that the complainant could 5 have been informed as to how things were required to move from 30.7.2009. 8. In the light of above discussions, the judgment of acquittal appears completely perverse and in derogation of the principles of justice. The same is hereby set aside. 9. After having set aside the judgment of acquittal, what this Court wants to direct is that the case, i.e., Complaint Case No. 775C of 2005 be transferred from the court of Shri V.K.Srivastava, Judicial Magistrate, Ist Class, Danapur, if the Officer is still posted there. The District and Sessions Judge, Patna, shall ensure that the case is placed before an Officer of competent jurisdiction in the light of the transfer order and the Officer be directed to inform the counsel for the complainant and further to issue notice to the complainant both through Nazarat of the civil Court and through Police Station concerned under whose jurisdiction the complainant may be residing and thereafter offer to her proper opportunity for examining her witnesses from the stage of 244 Cr. P.C. The evidences of two witnesses, i.e., P.Ws. 1 and 2 who were examined under Section 244 Cr. P.C., are left undisturbed and those shall be treated as evidence under Section 244 Cr. P.C. by the transferee court also. On production of the witnesses or on account of non-production of them, the court shall proceed as per the provision of law and principles of justice. 10. While perusing the records what disturbed this Court and its conscience was that the employee, may be the Bench Clerk of the court or its Office clerk, who was drafting orders on 20.4.2009, 5.6.2009 /16.7.2009 which shows interpolation in the next date fixed 6 in the case, is required to be proceeded against. The District and Sessions Judge, Patna is directed to ascertain the name or names of the employees who could be involved in tampering with the order dated 5.6.2009/16.7.2009 and put him/them under suspension immediately and to initiate proceedings against him/them. After proper proceedings, it shall be ensured by the District and Sessions Judge, Patna, that the employee who is to be proceeded shall never be entrusted with serious assignments of being Bench Clerk or Office Clerk of the court The trial court shall take its own time in proceeding with the case. Learned counsel appearing for the complainant has assured that the complainant shall produce her witnesses on day-to-day basis and shall examine them with ado. 11. The appeal succeeds with a note that this Court has not touched upon the merits of the evidence as it was not called upon to consider the material evidence of the case in detail. The judgment has been set aside simply on the ground of interpolation, manipulations and the resultant illegal acquittal that the trial court was passing. The court below shall proceed with the trial without being prejudiced towards the accused persons and dispose of the trial fairly and equitably. 12. Let this order be also placed on the administrative side of the Court for necessary action against the Officer. ( Dharnidhar Jha, J.) Patna High Court The 18th April, 2011 Kanth/N.A.F.R.