PATEL HATHIBHAI DWARKADAS Vs. PATEL KHODABHAI HARGOVANDAS

JUDGEMENT

(1.) From a complaint filed by one Khodabhai Hargovandas the President of a co-operative society at Delwada hereinafter referred to as the complainant against three persons including the Sarpanch and the secretary of the village panchayat of Delwada the present two references have arisen. The complaint was filed before police on 15-12-1968. The Sarpanch of the village panchayat Hathibhai Dwarkadas will hereinafter be reference to as original accused No 2 the secretary Ishwarbhai Jivarmdas will hereinafter be referred to as original accused No. 1 and the third accused namely a goldsmith named Baldevbhai Ganeshbhai will hereinafter be referred to as original accused No. 3. This sequence is adopted from the serial numbers given to the accused persons in the aforesaid complaint before the police. The allegations made in this complaint were that a demand bill for the arrears of water tax from the complaint society was served on the complainant on 1-5-1968. Against that bill the complainant issued protest and filed an appeal in the District Panchayat of Mehsana. Thereafter no notice or demand bill was given to the society. Even though the demand bill was given under sec. 192(1) of the Gujarat Panchayat Act 1961 (hereinafter referred to as the Act) the complainant was not bound to pay the sum mentioned therein at that time. Thereafter the Sarpanch i.e. accused No. 2 of the said panchayat without following any legal procedure that is without any compliance with sec. 192(2) and (4) of the Act appointed accused No. 1 as the person to carry out attachment. The accused No. 1 gave a notice to the society on 22-11-1968 informing that the attachment will be levied on 12-12-1968. It was alleged that before the expiry of the time which should be given according to law the notice in question was given by accused Nos. 1 and 2. The further allegation was that even though the notice stated that the attachment will be made on 12-12-1968 the attachment was not levied on that day but on the next day i.e. 13-12-1968 when the President and other officers of the society had gone to Mehsana District Panchayat the attachment was levied in their absence at 4-30 p.m. It was also alleged that in levying that attachment all the three accused even though they had no right to break open the lock of the Society had broken it open and had entered into the premises of the society which act amounted to criminal trespass. It was also alleged that at the time of levying attachment accused Nos. 1 and 2 had got the lock broken open by accused No. 3 and in that manner accused No. 3 had abetted the offence of criminal house trespass committed by accused Nos. 1 and 2. It was alleged that accused Nos. 1 and 2 were aware of the fact that the secretary and other members of the society were out of the village still with the willful intention of causing damage to the society all the three accused had committed criminal trespass and had taken away an electric fan a patromax and cash of Rs. 80/from the premises of the society. In the complaint it was also alleged that pursuant to levy attachment accused No. 1 had issued a notification on 13-12-1968 and had applied his lock and possession of the premises was handed over on the same day to the complainant at 7-30 p.m. Thereby the complainant wanted to say that in the period between 4-30 p.m. and 7-30 p.m. the accused had committed criminal trespass into the premises of the society and had caused damage and had taken away moveable including cash of the society. On these allegations it was stated that offences punishable under secs. 380 and 452 of the Indian Penal Code were committed by accused Nos. 1 and 2 and the same offences read with sec. 114 of the Indian Penal Code were committed by accused No. 3. The police investigated into this complaint and ultimately submitted a final report to the learned Judicial Magistrate First Class Vijapur asking for B summary. It appears that they prayed for this summary with prosecution.

(2.) On this the learned Magistrate issued notices to the complainant and the accused and having heard them he granted B summary without prosecution on 14-5-1970. It may be mentioned at this stage that in reply to the notice issued by the learned Magistrate in connection with the grant of this B summary the complainant appeared and gave his objections in writing at Exh. 3. In these objections having criticized the police report and the investigation he stated that the accused had committed offences by taking away the electric fan patromax and the cash of Rs. 80/and therefore process be issued against them. The learned Magistrate passed below this application the following order:-

(3.) Both these revisional applications were heard by the learned Additional Sessions Judge at Mehsana together. He was of the opinion that the objection application given by the complainant in terms requested the Magistrate to issue process against the accused and it amounted to a complaint as defined by sec. 4(1)(h) of the Criminal Procedure Code (hereinafter referred to as the Code) and therefore the order of the learned Magistrate issuing B summary without prosecution on this objection application was illegal inasmuch as the said order was passed without following the provisions of secs. 200 202 and 203 of the Code. In the opinion of the learned Judge this order of granting B summary without prosecution passed by the learned Magistrate deserves to be set aside as illegal and the learned Magistrate should be directed to treat the objection application filed as a complaint and to proceed with the same in the manner laid down in secs. 200 202 and 203 of the Code and then pass necessary orders according to law. The learned Judge also commented upon the fact that the learned Magistrate in passing the impugned order has not given reasons. He therefore ordered a reference to be made in each of the two matters with the recommendation that the order passed by the learned Magistrate granting B summary without prosecution be set aside and the learned Magistrate be directed to proceed with the written statement filed by the complainant as if it was a complaint filed by him. As he passed this order in both the revisional applications it appears that two references came to be filed upon this order. Criminal Reference No. 5 of 1971 was given to the order passed in criminal revision application No. 54/70 and criminal reference No. 6/71 was given number to the order passed in criminal revision application No. 64/70. As stated earlier criminal revision application No. 54/70 arose upon the application made by the original accused No. 2 in order to obtain an order for B summary with prosecution. Criminal revision application No. 64/70 arose on the application of the original complainant asking for setting aside the order about B summary without prosecution and in treating the objection application as a complaint and for proceeding in accordance with law.