KASHIGAR RATNAGAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is a Reference made by the learned Sessions Judge Kutch at Bhuj recommending that the order passed by the learned Judicial Magistrate First Class Mandvi in Criminal Case No. 979 of 1972 convicting the petitioner-accused for the offence under sec. 131 read with sec. 33 (1) (w) (i) of the Bombay Police Act and sentencing him to pay a fine of Rs. 10/and in default to undergo two days simple imprisonment be set aside as it is illegal the reason being that a complaint filed against him in respect of that very offence in that very Court by another policeman named Dalabhai was dismissed and the petitioner-accused was acquitted under sec. 247 of the Criminal Procedure Code on 7-9-(1972) in that Criminal Case No. 1015 of 1972.

(2.) This recommendation has been made by him on the basis of the provisions of sec. 403 of the Criminal Procedure Code. Sub-sec. (1) of sec. 403 of the Criminal Procedure Code reads as under:

(3.) In the instant case two complaints were filed against the petitioneraccused for the aforesaid offence alleged to have been committed by him an 3-8-1972 at 4-25 P.M. One complaint was filed by complainant Lavji and the other by Dalabhai. Both these policemen entered the shop of the petitioner at 4-25 P.M. on 3-8-1972 and each of them filed a separate complaint in respect of that very offence. The complaint filed by Dalabhai was heard first. The plea of the accused was recorded and he pleaded not guilty. On the day on which the evidence was to be recorded the complainant was absent and so the order was passed under sec. 247 of the Criminal Procedure Code by the Judicial Magistrate First Class Mandvi and the said order of acquittal was passed on 7-9-1972. Thereafter the second complaint filed by Lavji in respect of this very offence was taken on the board. The deposition of the complainant was recorded and the order of conviction in question was passed on 18-10-1972. The case in question was a summons case. Chapter XX of the Criminal Procedure Code provides for the procedure to be followed in trial of summons-cases by Magistrates. Sec. 242 of the Criminal Procedure Code reads: