Decided on August 31,1965

STATE OF U.P. Appellant
RAMJANI Respondents

Referred Judgements :-



J.N. Takru, J. - (1.)THIS appeal by the State of Uttar Pradesh is directed against (sic) order of acquittal, dated the 19th June 1963, passed by the Additional Sub Divisional Magistrate, Kashipur.
(2.)THE brief facts giving rise to it are as follows:
On the 21st February 1962, a chargesheet under Section 60 of the Excise Act was submitted against the Respondent is the SDM, Kashipur. On the 24th September 1962, the charge sheet was registered as Criminal Case No. 113 of 1962 and summons were directed as be issued to the Respondent fixing the 25th October 1962. Thereafter on three dates the case had to be adjourned as the summons had not been received back after service. On the 8th January 1963, however, the Respondent was present and he applied for time for filing surety bonds and on that application the case was adjourned to the 30th January 1963. On the 30th January 1963 the Respondent pleaded not guilty, whereupon the 23rd February 1963 was fixed for the recording of the prosecution evidence. On the 23rd February 1963, the Presiding Officer was on tour and so the case was adjourned to the 15th March 1963. On the 15th March 1963 the Respondent was present, but the prosecution witnesses were absent and the case was, therefore, adjourned to the 8th April 1963. On the 8th April 1963 the prosecution witnesses were again absent, where upon the 20th April 1963 was fixed for the recording of their evidence. On the 20th April 1963 the prosecution witnesses were again absent and on the application of the APP the case was adjourned to the 27th April 1963, on the understanding that no further adjournment would be allowed. On the 27th April 1963 the prosecution witnesses were again absent and notwithstanding the stop order passed on the 20th April 1963, the case was adjourned to the 13th May 1963. On the 13th May, 1963 at the request of the Respondent, that his counsel had gone out, the case was adjourned to the 14th June 1963. On the 14th June 1963 P.Ws. Sujeet Singh, the Excise Inspector Abdul Rashid and Abdul Latif were examined and the written statement of Ghananand was filed. Thereafter the Sub Divisional Magistrate who was dealing with this case transferred it to the court of Sri B. Dayal, the Additional Sub Divisional Magistrate, Kashipur for trial after fixing the 19th June 1963 for the recording of the rest of the evidence. On the 19th June 1963 the remaining witnesses for the prosecution were not present, whereupon the learned Magistrate passed the impugned order acquitting the Respondent.

On behalf of the Appellant, its learned Counsel Sri R.N. Shukla advanced two contentions in support of this appeal. His first contention was that the order dated the 14th June 1963, whereby the Sub Divisional Magistrate, Kashipur, transferred the case for trial to the court of the Additional Sub Divisional Magistrate, Kashipur was illegal and invalid, as it was contrary to the provisions of Section 192(l) of the Code of Criminal Procedure, and hence the order of acquittal passed by the transferee court was without jurisdiction. His second contention was that even if the Addl. Sub Divisional Magistrate had the jurisdiction to try this case he could at the most stop the proceedings and release the Respondent under Section 249 Code of Criminal Procedure, but he could not acquit him. After hearing the learned Counsel for the parties, I am satisfied that while the first contention has no merit, the second has force and this appeal must consequently succeed. I shall, therefore, proceed to deal with those contentions in the order stated above.

(3.)SECTION 192(1) of the Code of Criminal Procedure, on which reliance was placed by Sri Shukla, for his first contention, provides for transfer of cases inter alia by Sub Divisional Magistrates, and it reads thus:
Any Chief Presidency Magistrate, District Magistrate or Sub Divisional Magistrate may transfer any case, of which he has taken cognizance, for inquiry or trial, to any Magistrate subordinate to him.


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