Hon'ble Shri Kant Tripathi, J. - (1.) HEARD learned counsel for the revisionist and learned AGA for the respondent and perused the record.
(2.) THIS revision has been preferred against the judgment and order dated 13.2.2004 passed by the Additional Sessions Judge, Fast Track Court, Sonebhadra in criminal appeal No. 9 of 2001, whereby the learned Additional Sessions Judge maintained the conviction order dated 18.5.2001 recorded by the Chief Judicial Magistrate, Sonebhadra under Section 349 of the Code of Criminal Procedure (in short 'the Code') against the revisionist. It appears that the vehicle UHX 450 was seized and detained by the police of police station Pannuganj, district Sonebhadra, on the ground that the vehicle was being used in violation of the provisions of the Motor Vehicles Act. The owner of the vehicle Gopal Pandey moved the application (Annexure 1) before the Chief Judicial Magistrate, Sonebhadra for summoning the challani report from the S.O. Pannuganj. The learned Chief Judicial Magistrate accordingly summoned the challani report but the revisionist, who was the S.O. of police station Pannuganj, instead of sending the challani report to the Court, informed vide his report dated 19.4.2001 (Annexure 2) that the challani report had been sent to the Court through the A.R.T.O. on 11.4.2001 according to the directions of the Government so that the taxes etc. payable in respect of the vehicle could be recovered and further clarified as to why the report could not be sent earlier. Taking note of this attitude of the revisionist, the Chief Judicial Magistrate issued the show-cause notice dated 3.5.2001 (Annexure 4) under Section 349 of the Code to the revisionist, in pursuance whereof the revisionist submitted his detailed explanation dated 18.4.2001 (Annexure 7) and contended that the Superintendent of Police had ordered that the challani report under the Motor Vehicles Act shall be sent to the Court through A.R.T.O. This decision by the Superintendent of Police had been taken as a policy matter so as to enable the A.R.T.O. to assess and recover the tax, if any, payable on the vehicle. The S.O. concerned further replied the Court that he had gone to Hyderabad in connection with delivering a lecture in a training program so he could not attend the Court. The Chief Judicial Magistrate found the explanation unsatisfactory and accordingly sentenced the revisionist to under go simple imprisonment of seven days under Section 349 of the Code. Feeling aggrieved from the order of the Chief Judicial Magistrate, the revisionist preferred the aforesaid appeal but the learned Additional Sessions Judge dismissed the appeal on merits. The learned counsel for the revisionist submitted that there was neither any refusal on the part of the revisionist nor he made any deliberate disobedience of the order of the Court. In fact the revisionist had already transmitted the challani report to the office of the A.R.T.O. on 11.4.2001 before he received the order of the Magistrate requiring him to transmit the challani report to the Court. The revisionist did so on account of the fact that the Superintendent of Police had directed all the police officers to submit the challani report under the Motor Vehicles Act to the Court through the A.R.T.O. so as to enable the A.R.T.O. to assess and recover the tax, if any, payable on the vehicle. It was also submitted on behalf of the revisionist that the revisionist, on account of clerical error, mentioned in his report that there was a Government order for submission of the challani report in the Court through the A.R.T.O. The learned counsel further submitted that the revisionist had been deputed to go to Hyderabad to impart training to trainee l.P.S. officers in the Police Academy, Hyderabad and went there on 19.4.2001. In this view of the matter the revisionist could not furnish reply within the time fixed by the Court nor could appear personally in the Court. Therefore, the impugned orders, which are very harsh, ought not to have been passed. The learned counsel for the revisionist lastly submitted that it was open to the police to file challani report directly in the Court or to route it through the A.R.T.O.
(3.) LEARNED A.G.A. on the other hand submitted that when the Magistrate called for the challani report from the revisionist, there was no justification for the revisionist to withhold the report. After all the Magistrate had to pass some order on the application moved by the owner of the vehicle, as such the attitude adopted by the revisionist in ignoring the order of the Magistrate cannot be appreciated, therefore, the Courts below were fully justified in convicting and sentencing the revisionist under Section 349 of the Code. Section 349 of the Code provides that if any witness or person called to produce a document or thing before a Criminal Court refuses to answer such questions as are put to him or to produce any document or thing in his possession or power which the Court requires him to produce, and does not, after a reasonable opportunity has been given to him so to do, offer any reasonable excuse for such refusal such Court may, for reasons to be recorded in writing, sentence him to simple imprisonment, or by warrant under the hand of the Presiding Magistrate or Judge commit him to the custody of an officer of the Court for any term not exceeding seven days, unless in the meantime, such person consents to be examined and to answer, or to produce the document or thing and in the event of his persisting in his refusal, he may be dealt with according to the provisions of Section 345 or Section 346 of the Code.;