Misc. Criminal Application (Review) No.1289 of 2007

14th August, 2007

Petitioner Counsel: Mr. S. U. NEMADE
Respondent Counsel: Mr. Y. B. MANDPE

Cases Cited:
Deepak Balwani Vs. State of Maharashtra, 1985 Cri.L.J. 23 [Para 6]
D. Chattaiah Vs. State of Andhra Pradesh, 1978 Cri.L.J. 1473 [Para 7]

JUDGMENT

JUDGMENT :- Rule. Returnable forthwith.

2. Heard Finally with consent of parties.

3. This application under Section 482 of the Code of Criminal Procedure is filed against the order passed by this court in Criminal Revision No.124 of 2004.

4. Criminal Revision No.124 of 2004 was filed against the order of Sessions Judge whereby he had confirmed the order of conviction passed by the Judicial Magistrate (F.C.), Pusad.

5. The facts are as follows -

Complainant is a driver in State Transport Corporation. On the date of the incident he was driving a bus. While he was proceeding towards Mahagaon, the accused were following him on the motor cycle. The accused were in a hurry and wanted to overtake the bus but, it is alleged that the complainant did not allow them to overtake. The bus was stopped at Kasarbed village in order to allow the passengers to alight. While the bus was standing, the accused came there and questioned the complainant why he did not give side to them and then pulled him out of the cabin of the bus and beat him. The driver i.e. the complainant lodged report and the accused/applicants were prosecuted before the Magistrate. The Magistrate acquitted accused No.1 but convicted accused No.2 and sentenced him to imprisonment for period of three years under Section 332 of the Indian Penal Code. An appeal was preferred by accused No.2 i.e. the present applicant/accused before the Sessions Judge. The Sessions Judge confirmed the conviction but reduced the sentence to one year rigorous imprisonment. Hence, accused No.2 has preferred the revision. The Criminal Revision No.124 of 2004 was decided by this court and it is apparent that the counsel for the applicant did not appear and without hearing him, it was decided and dismissed.

6. The learned counsel for the applicant/accused submitted that the matter was not fixed for hearing on 14-4-2007 and the applicant's counsel thought that the matter is adjourned for hearing to 21-4-2007 but actually the judgment was delivered on 21-4-2007. It is a fact that the counsel for the applicant was not heard and the matter came to be decided. Shri. Nemade, learned counsel for the applicant/accused, submits that he had a right to be heard and if the order is passed without hearing him, it should be recalled and he should be heard. He submitted that this court has power under Section 482 of the Cr.P.Code to recall the order and give opportunity to the applicant of being heard. He relied on the decision of this court in 1985 Cri.L.J. 23 (Deepak Balwani Vs. State of Maharashtra) It is observed as follows -

"In its inherent powers as provided in S.482, the High Court can review or revise its judgment if such a judgment is pronounced without giving an opportunity of being heard to a party who is entitled to a hearing and that party is not at fault. For the mistake of the Court, a party cannot suffer.

In the instant case the hearing was adjourned to 13th February but in the Roznama the adjourned date was inadvertently marked as 8th February. On 8th February the petitioner and his counsel were absent and the High Court after going through the record passed the order dismissing the writ petition. Since the petitioner was entitled to a hearing it could be said that the Court acted without jurisdiction and in violation of principles of natural justice. In the circumstances, the review petition must be allowed."

In view of what has been laid down, it is apparent that the High Court has a right to recall or review the order under Section 482 of Cr.P.Code. Hence, this application must be held to be maintenable.

7. Shri. Nemade, learned counsel for the applicant, submitted on merits that the conviction of applicant/accused under Section 332 of Indian Penal Code was not proper. He submitted that the main ingredient of Section 332 is that the hurt must be caused with intent to deter the government servant from discharging the official duty. He also submitted that the alleged assault was not with a view to prevent or deter the driver from discharging duty but it was a simple quarrel. Section 332 of Indian Penal Code would be attracted when the Government servant is discharging Government duty and such act in discharge of duty is likely to affect the interest of the accused and accused therefore wants to prevent that government servant from doing that particular thing by using force against him. Here the intention of the accused was certainly not to prevent the driver from discharging his duty as a driver. The accused had merely got annoyed due to the fact that side was not given to him to overtake the bus and he out of that annoyance beat the driver. The driving of the bus by the complainant was not going to affect in any way the accused and therefore it could not be said that the assault on the driver was with an intention to deter him and prevent him from discharging the official duty. The case certainly, therefore, does not fall under Section 332 of the Indian Penal Code. Shri. Nemade, learned counsel, had placed before me the ruling reported in 1978 Cri.L.J. 1473 (D. Chattaiah and another Vs. State of Andhra Pradesh) for the above proposition. The Supreme Court has made the following observations in the said case.

9. It was thus manifest that the assault on the Typist (PW-1) had no real nexus or casual connection, or consequential relation with the performance of his duty as public servant. There was not even a scintilla of evidence from which it could be reasonably inferred that the intent of the assailants was to prevent or deter PW-1 from the discharge of his duty as such public servant.

10. In view of the above, the charge as laid under S.332, I.P.C. and the conviction of the appellant on that count cannot be sustained. The appellant could, at the most, be held guilty under S.323, I.P.C., the injuries caused being simple.

In view of this, conviction under Section 332 of I.P.Code was certainly not proper.

8. The learned counsel for the applicant/accused contended that there was no proper identification of the accused and no identification parade was ever held and Medical Officer also has not been examined to prove the fact of injury to the complainant. He submitted that in view of that, the accused should in fact be acquitted. There is no substance in the argument. There are two concurrent findings. In revision, the court cannot reappreciate the evidence at all. Even otherwise the learned Magistrate has reproduced the evidence of PW-1 Shriram in the judgment. If that portion is read from the judgment, it is apparent that the accused persons did not in fact dispute that they were coming on motor-cycle and complainant who was driving the bus did not give them side, they fell into the ditch and both accused came near the bus and questioned the complainant as to why side was not given to them. These suggestions to complainant (PW-1) in the cross-examination by the accused show that they do not dispute that such incident took place. There is, therefore, no doubt about the identity of the applicant/accused at all. The learned Magistrate as well as the Sessions Judge have considered the evidence and found that it was accused who had pulled the driver out of the cabin of the bus, fell him down and beat him. There is no perversity in the appreciation of the evidence. There is no need to examine the Medical Officer. The evidence does go to show that the collar of the complainant was caught hold of, he was pulled out of the bus, he fell down and was beaten. This evidence goes to show that the applicant/accused did cause hurt to the complainant. This kind of hurt need not be proved by examination of the Medical Officer.

9. In the case cited supra, the Supreme Court converted the conviction of the accused to one under Section 323 instead of 332 of the Indian Penal Code. In the present case, therefore, the conviction of the applicant/accused needs to be converted to one under Section 323 of Indian Penal Code and this is certainly not a case of clear acquittal. The learned counsel for the applicant submitted that if the court decides to convict the accused under Section 323 of I.P.Code, the punishment of one year imprisonment would be too harsh and court may take lenient view in the matter.

10. Considering the fact that the incident had taken place in the year 1996 and no injury in fact was caused to the complainant, I find that the following sentence shall meet the ends of justice.

The Misc. Criminal Application is partly allowed.

The conviction of the accused is converted to one under Section 323 instead of Section 332 of the Indian Penal Code. The applicant/accused shall undergo rigorous imprisonment for a period of two months instead of one year as imposed by the lower court. The sentence of fine stands confirmed. The benefit of set off be given to the accused if at all he was in jail for some time.

Application partly allowed.