STATE Vs. AMRATLAL MAGANLAL

JUDGEMENT

(1.) This Criminal Appeal No. 302 of 1961 is a criminal appeal filed by the State against the order of acquittal of respondents Nos. 1 and 2 by. the Judicial Magistrate, First Class. Mehsana The appeal was admitted by a Division Bench of this Court on 28-6-61. The Government Pleader has now stated that respondent No. 1 is dead as he has been reported to be murdered. He, therefore, requests this Court to pass an order that Criminal Appeal No. 302 of 1961 abates as regards respondent No. 1 and that it should be decided, as regards respondent No. 2.

(2.) Mr. Patel who appears for the respondents; urges that under Section 431, Criminal Procedure Code, the appeal abates as a whole. This section reads as follows :

(3.) With great respect, therefore, to pass an order declaring that Criminal Appeal No. 302 Of 1981 abates as against respondent No. 1 and should be proceeded with as against respondent No. 2 would be an invalid order. The learned Assistant Government pleader, who appeared for the State at the first stage, was given an opportunity to separate the two appeals against thy two orders of acquittal, so that the appeal against the order of acquittal of respondent No. 2 who is alive may be proceeded with and decided on merits. But he insisted on treating Criminal Appeal No. 302 of 1961 as it is, namely as an appeal against the order of acquittal of respondents Nos. 1 and 2. At a subsequent stage, the learned Government Pleader Mr. Chokshi was also told that if he separated the two appeals against the two orders of acquittal the appeal against the Order of acquittal of respondent No. 2 would be proceeded with and decided on its merits. But, the learned Government pleader Mr. Chokshi refused to do so on the ground that it was not necessary in view of the observations of the Division Court consisting of three Judges in Criminal Appeal No, 395 of 1961 : (AIR 1962 Guj, 125) (FB). The learned Government Pleader has refused to separate the two appeals and wants that this Court should pass an order in the following terms: