State of Gujarat vs Kiritbhai Parshotthambhai Dabhi and Others

Z.K. Saiyed, J.—The present appeal, u/s 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated passed by the learned 5th Joint Civil Judge (J.D.) and Judicial Magistrate First Class, Nadiad in Criminal Case No. 186 of 1990, whereby the accused have been acquitted from the charges leveled against them.

The brief facts of the prosecution case are as under:

2.1 On 24.11.1989, at about 17:40 hrs., the complainant came with passengers in his auto-rickshaw towards Pij village and at that time, the accused - Respondents herein by forming unlawful assembly, prevented the rickshaw and pull out the complaint from the said rickshaw and gave fists and kicks blow by abusing vulgar language. Thereby, the amount of Rs. 150/-, which was in the pocket of the complainant and his wrist watch were lost away during the said episode. The complaint for the offences punishable under Sections 143, 341, 323, 504 and 427 of the Indian Penal Code was lodged against the accused persons.

2.2 Necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, Respondents were arrested and, ultimately, charge sheet was filed against them before the court of learned JMFC, Nadiad. The trial was initiated against the Respondents.

2.3 At the end of trial, after recording the statement of the accused, the learned Magistrate acquitted the Respondents of all the charges leveled against him by judgment and order dated 6.9.1991.

2.4 Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the trial Court the Appellant State has preferred the present appeal.

It was contended by learned APP that the judgment and order of the trial Court is against the provisions of law. He further submitted that looking to the seriousness of the offence, the learned Judge has not reissued any summons or bailable warrant or warrant to examine the witnesses. He has fairly admitted that even learned Additional Public Prosecutor did not pray for issuance of summons, bailable warrant or warrant before the trial Court. Therefore, he prays to allow this appeal by quashing and setting aside the order.

I have gone through the judgment and order passed by the trial court. I have also perused the order passed by the trial court and also considered the submissions made by learned APP for the Appellant-State. The trial court has clearly recorded a finding that on 17.8.1991, the matter was adjourned due to absent of complainant and witnesses and therefore, the summons was issued to the complainant along with witnesses and the same was served to them, but he or his witnesses did not care to remain present before the Court and therefore, the trial Court dismissed the Criminal Case for the want of prosecution, though served and acquitted the accused by exercising power u/s 256 of the Code Criminal Procedure.

In the above view of the matter, I am of the considered opinion that the trial court was completely justified in acquitting the Respondent of the charges leveled against him.

I find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it.

For the reasons recorded in the judgment delivered today, the Appeal is dismissed. The impugned judgment and order dated 6.9.1991 passed by the learned Judicial Magistrate, First Class, Nadiad in Criminal Case No. 186 of 1990 acquitting the Respondents, is hereby confirmed. Record and proceedings to be sent back to the concerned lower Court.