STATE OF GUJARAT Vs. MAHENDRA MILLS LIMITED KALOL

JUDGEMENT

(1.) The order of acquittal passed by the learned Judicial Magistrate (First Class) at Kalol on 30th January 1993 in Criminal Case No. 1900 of 1987 is under challenge in this appeal by leave of this Court under Sec. 378 of the Code of Criminal Procedure, 1973 (the Code for brief). Thereby the learned trial Magistrate has acquitted the respondents - accused only on the ground that the complaint against them was filed beyond the period of one year in view of Sec. 468 thereof.

(2.) It is not necessary to set out in detail the facts giving rise to this appeal. It may be sufficient to note that the Government Labour Officer - Conciliation Officer under the Industrial Disputes Act, 1947 (the I.D. Act for brief) filed his complaint on 7th July 1987 against the respondents herein charging them with the offences punishable under Sec. 25-Q and Sec. 31(2) read with Sec. 25-M(1) of the Act and Rule 79-A of the Industrial Disputes (Gujarat) Rules, 1966 (the Rules for brief) framed under Sec. 38 thereof. It was stated in the complaint that the respondents had given lay off to certain workmen in August and September 1984. It came to be registered as Criminal Case No. 1900 of 1987. It appears that respondent No. 2 herein (accused No. 2 in the trial Court) was not served. For mysterious reasons, the learned trial Magistrate did not insist on service of summons to respondentaccused No. 2. On behalf of the accused, a discharge application was made at Exh. 19 on the record of the trial Court. After hearing the parties, by his order passed below the complaint at Exh. 1 in Criminal Case No. 1900 of 1987, the learned trial Magistrate at Kalol acquitted the accused of the offences alleged to have been committed by them in the complaint. That aggrieved the State Government. It has, therefore, by leave of this Court invoked its appellate jurisdiction under Sec. 378 of the Code for questioning the correctness of the aforesaid order of acquittal passed by the learned trial Magistrate.

(3.) Learned Advocate Shri Gandhi appearing for the respondents - accused has raised a preliminary objection against maintainability of this appeal on the ground that the impugned order is that of discharge and not of acquittal and no appeal lies against the order of discharge under Sec. 378 of the Code. As against this, learned Additional Public Prosecutor Shri Bukhari for the appellant has submitted that, though the application on behalf of the accused was made for their discharge, the tenor of the impugned order passed by the learned trial Magistrate shows that they were acquitted of the offences in respect of which the complaint was filed. It has been urged by learned Additional Public Prosecutor Shri Bukhari for the appellant - State that the substance of the order in question has to be seen for the purpose of deciding whether it is an order of acquittal or discharge.