BHARAT JOITARAM PATEL Vs. KANUBHAI J SHAH

JUDGEMENT

(1.) The petitioner directed this petition under Art. 227 of the Constitution of India against the order of the learned Additional Sessions Judge, Ahmedabad Rural at Ahmedabad dated 18-7-1995.

(2.) The facts of the case are that the petitioner's father (since deceased) Joitaraman Topandas Patel initiated criminal proceedings against the respondent Nos. 1 to 6 in the Court of Chief Judicial Magistrate, Ahmedabad Rural at Mirzapur, Ahmedabad. The Chief Judicial Magistrate, Ahmedabad Rural at Mirzapur, Ahmedabad sent the matter for investigation to the Police in exercise of its powers under Sec. 156(3) of the Criminal Procedure Code, 1973. After making the investigation, the Police submitted its report dated 19-7-1991 wherein it was reported that no offence was committed by the respondents. The learned Magistrate issued a notice to the complainant (since deceased) to remain present and to make a representation if he desires to make against the report of the Police. The representation is made. Enclosed to that representation, the complainant - since deceased submitted documentary evidence also. The learned Magistrate after hearing the parties passed the order and took cognisance in the matter and issued summons to the respondent Nos. 1 to 6. The original complainant, father of the petitioner, (since deceased) used to remain present during the trial. It is also not in dispute that he engaged an advocate in the matter and he was appearing for him in the proceedings. Unfortunately, the father of the petitioner had expired on 1-9-1993. An application was came to be filed after the death of the complainant by the respondent No. 6 in the Court of Judicial Magistrate and prayer made therein is that as the original complainant has died, the accused may be acquitted. The petitioner filed his objections against this application. The learned Magistrate having gone through all the aspects of the matter and hearing the learned Counsel for the parties under his order dated 23-12-1994 dismissed this application of the respondent No. 6. Aggrieved and dissatisfied with the order of the learned Judicial Magistrate, the respondent No. 6 filed Criminal Revision Application No. 35 of 1995 in the Court of Sessions Judge, Ahmedabad Rural at Mirzapur, Ahmedabad which was came to be decided by the Additional Sessions Judge, Ahmedabad Rural at Mirzapur, Ahmedabad under his order dated 18-7-1995. This revision application has been allowed and the respondent was ordered to be acquitted. Hence, this Special Criminal Application.

(3.) Shri M. C. Bhatt, learned Counsel for the petitioner contended that the order of the learned Additional Sessions Judge, Ahmedabad Rural is wholly perverse. In his submission, the learned Additional Sessions Judge has not looked into and correctly appreciated the provisions of Sec. 256 of the Criminal Procedure Code, 1973 (hereinafter referred as the "Code"). Shri Bhatt, learned Counsel for the petitioner places much emphasis on Sec. 256(2) of the Criminal Procedure Code. It is urged that merely on the death of the complainant, the rule is not to acquit the accused. The learned Judicial Magistrate has ample power to continue the criminal case upto its logical end. Shri M. C. Bhatt, learned Counsel for the petitioner submitted that in the criminal case, the complainant was represented by the Advocate. The criminal complaint has been filed by the complainant as he was owner of the land in respect of which the offence has been committed by the respondents, otherwise the accused have beaten his son including the petitioner herein and his sons are the material witnesses to be examined in the matter and as such, after his death they could have been permitted to continue this criminal case. Concluding his submissions Shri M. C. Bhatt, learned Counsel for the petitioner argued that the learned Trial Court has rightly considered it to be not a fit case to acquit the respondents merely on the death of "the complainant. The revisional Court has very limited power of interference in such matters and has committed a serious illegality in making interference with this legal and just order of the Magistrate.