State of U.P. vs Puttu

P.N. Goel, J.—This appeal is directed against the order dated 3-6-1976 passed by Munsif Magistrate Havali, Farrukhabad acquitting the Respondent of an offence punishable u/s 25 Arms Act.

According to the prosecution the Respondent was arrested on 21-4-1974 at about 6 p. m. and one country made gun with 3 live cartridges were recovered from his possession. The Respondent did not have a licence to possess the same.

On 3-6-76 one Daya Ram was examined on behalf of the prosecution. Immediately thereafter the Magistrate passed order of acquittal. He did not even examine the Respondent u/s 313 Code of Criminal Procedure after the statement of Daya Ram (PW 1).

The grievance of the State is that the Magistrate did not try the case properly and that the statement of Daya Ram was recorded in the absence of the Assistant P. O.

A perusal of the record clearly bears out the grievance of the State. The order sheet shows that on 23-4-1976 the case was fixed for evidence on 3-6-76. On the margin of his order sheet there is a note that 4 prosecution witnesses be summoned. On 3-6-1976 the magistrate himself wrote on the vernacular order sheet "Called out. Accused is present. Prosecution examined Daya Ram and closed. Judgment delivered."

If the prosecution had made a request for summoning 4 witnesses then it is obvious that the prosecution wanted to examine 4 witnesses. There is nothing on record to show that the prosecution discharged other 3 witnesses on 3-6-76. The order sheet does not bear signature/initial of the Assistant Prosecuting Officer. The order sheet dated 3-6-76 written by the Magistrate himself does not even indicate that the Assistant Prosecuting Officer was present and that he closed the evidence. Moreover, if the evidence of the prosecution was closed after examining Daya Ram it was the duty of the Magistrate to have examined the Respondent u/s 313 Code of Criminal Procedure to exaplain the facts and circumstances appearing in the statement of Daya Ram. The Magistrate even did not examine the Respondent under the said provision. This indicates that the Magistrate was in a hurry to dispose of the case. It is further evident that as the Respondent was not examined u/s 313 Code of Criminal Procedure the statement of Daya Ram went uncontradicted and this statement should have been sufficient for the Magistrate to convict the Respondent.

From the facts stated above it is too clear that the Magistrate did not try the case properly and hurriedly disposed of the case without observing the legal procedure.

The case is no doubt of a minor nature, but as it has not been tried properly, it is but just to direct the magistrate to try the case according to law.

Appeal is allowed and the order dated 3-6-76 passed by the Munsif Magistrate Havali Farrukhabad acquitting the Respondent of the offence punishable u/s 25 Arms Act is set aside. The CJM Farrukhabad is directed to try the case again either himself or through any other competent magistrate.

Parties will appear before the CJM Farrukhabad on 6-1-1981. Record of this case shall immediately be Sent down.