JUDGEMENT
N.G.SHELAT -
(1.)The facts giving rise to this application in revision are quite simple. On a complaint made by the petitioner before the police against the opponent Bharvad Khengar Mahiji of Barejadi village near Ahmedabad in respect of an offence under sec. 408 of the Indian Penal Code the investigation was carried out by the P.S.I. attached to the Aslali Police Station. Thereafter the charge-sheet against the accused was sent up to the Court of the Judicial Magistrate First Class at Narol. In that case the accused came to be discharged under sec. 251A(ii) of the Criminal Procedure Code by the Court in respect of an offence under sec. 408 of the Indian Penal Code on 24-1-67. Against that order Revision Application No. 5 of 1967 was filed in the Court of the Sessions Judge at Narol who set aside the order of discharge passed by the learned Magistrate and directed a further inquiry to be made in the matter. The case however was directed to be transferred to the Court of the 2nd Joint Civil Judge (J. D.) and Judicial Magistrate First Class at Narol. That case was re-numbered as No. 1315 of 1968.
(2.)It appears that the warrant of arrest was issued against the accused and though the matter came to be adjourned from time to time that warrant could not be served upon him. He was found to be evading service. At last on 12th February 1968 the accused was produced before the learned Magistrate and came to be released on bail on 22-2-1968. The case was then kept for hearing on 5th March 1968 and then adjourned to 28th March 1968. On that day charge as per Ex. 2 was framed under sec. 408 of the Indian Penal Code against the accused to which he pleaded not guilty. On the next date of hearing while the Police Prosecutor in charge of the case was not present the complainants advocate who was assisting the Police Prosecutor was present. When the case was called out since the complainant had gone out for some urgent work after having attended the Court his advocate presented an application to that effect and requested the Court to adjourn the matter. The learned Magistrate rejected his application and finding that neither the complainant nor his witnesses were present he passed an order under sec. 251-A(ii) of the Criminal Procedure Code whereby the accused came to be acquitted in respect of the charge leveled against him under sec. 408 of the Criminal Procedure Code. Feeling dissatisfied with that order passed on 20-3-68 by Mr. K. K. Thakkar 2 Joint Civil Judge and Judicial Magistrate First Class at Narol the complainant has come in revision before this Court. It may be incidentally stated here that no appeal against the order of acquittal has been filed by the State of Gujarat. The State of Gujarat is however joined as opponent No. 2 in this application.
(3.)The contention made out by Mr. Abhichandani the learned advocate for the applicant is that recording of an order of acquittal under sec. 251(A)(ii) of the Code must invariably depend upon the merits of the case after the evidence is led and it does not contemplate any such order of acquittal passed on non-appearance of the complainant and non-production of prosecution witnesses. In other words his submission is that sec. 251-A(ii) of the Code only applies to such cases where after consideration of all the evidence produced by the prosecution the Magistrate finds the accused not guilty of the offence charged against him. Reliance was placed on a decision in the case of State of Orissa v. Sib Charan Singh A.I.R. 1962 Orissa 157. It was then pointed out by Mr. Abhichandani that on the date of hearing the complainant had gone out for some other urgent work and that way could not remain present at the time when the case was actually called out. The duty of the Court in that event was to adjourn the case and at any rate give an opportunity to have the complainant called and examined in the case. Apart from that position it was pointed out by reference to the charge-sheet produced in the case that the duty of the Court was also to summon the witnesses as requested therein by the investigating officer. Not having done so the order of acquittal passed in the case cannot be sustained after the charge is framed against the accused. It was on the other hand pointed out by Mr. Amin the learned counsel for the accused-opponent No. 1 that it was within the discretion of the Court to reject the application and if he did so it would not be proper for this Court to interfere in revision. Besides he referred to a decision in the case of Smt. Jyotirmoyee Bose v. Birendra Nath Prodhan and others reported in A.I.R. 1960 Calcutta 263 where it was held that sub-sec. (6) of sec. 251A does not enjoin upon the Magistrate any duty to compel the attendance of any witness unless it was applied for. In a case tried under sec. 251A of the Code the Magistrate is not compelled as he is if the case is tried as warrant case instituted other than on the police report to proceed in terms of secs. 256 and 257 of the Code.
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