SHANKARBHAI MANJIBHAI GANASAVA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) PRESENT Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") has been preferred by the applicant herein - original accused to quash and set aside the impugned judgment and order dated 30.06.2008 passed by the learned Sessions Judge, Panchmahals, at Godhra in Criminal Appeal No. 5 of 2007 by which the learned Appellate Court has allowed the said Appeal preferred by the original complainant - State of Gujarat and has quashed and set aside the judgment and order of acquittal passed by the learned JMFC, Godhra in Criminal Case No. 3081/2004 and consequently convicting the applicant for the offence under Section 145(2) of the Bombay Police Act, 1951 (hereinafter referred to as "BP Act") and to undergo the sentence till rising of the Court and imposing the fine of Rs. 1500/ - and in default to undergo 15 days SI.

(2.) THAT the applicant herein - original accused was at the relevant time serving as Head Constable in Police Department at Police Headquarters, Godhra. He was initially on leave for two days prior to 19.06.2003. However, thereafter, remained unauthorizedly absent for a long period between 19.06.2003 to 28.05.2004 without submitting any leave report and/or without getting the leave sanctioned and even without informing the department and despite number of notices served upon the applicant to resume the duty failing which he shall be liable for the prosecution, the applicant did not resume the duty and remained unauthorizedly absent for the aforesaid period. Therefore, the proceedings came to be initiated against the applicant for the offence under Section 145(2) of the BP Act and the applicant came to be chargesheeted and the case was numbered as Criminal Case No. 3081/2004. To prove the case against the applicant, the prosecution examined number of witnesses and also produced number of documentary evidences inclusive of the notices, which have been served upon the applicant, produced at mark A/1 and Exhs. 15 and 16 and prosecution also examined the concerned police officers who served the aforesaid notices upon the applicant at Exhs. 18, 19 and 20. Further Statement of the accused was recorded under Section 313 of the CrPC and he denied the charge leveled against him. It was the case on behalf of the applicant that as he was sick and bedridden and his mental condition was not good, he could not resume the duty. He produced two certificates mark A/2 alleged to have been issued by the Civil Surgeon, Godhra dated 11.11.2005 and mark A/3 the certificate issued by a private doctor Dr. Sarvar Ali dated 22.11.2005. However, the said certificates were not exhibited as the same were not proved by the applicant. It was the case on behalf of the applicant that before prosecuting him for the offence under Section 145(2) of the BP Act, there was no sanction obtained from the higher authority and therefore, it was requested to acquit him. That the learned Magistrate accepted the case on behalf of the applicant and acquitted the applicant for the offence under Section 145(2) of the BP Act mainly on the ground that before prosecuting the applicant for the offence under Section 145(2) of the BP Act, the competent Authority has not granted the sanction to file the complaint and accepting the certificates issued by the Civil Surgeon, Godhra as well as the private doctor Dr. Sarvar Ali and holding that as the applicant was suffering from hypertension and was under stress and under treatment and therefore, he could not resume the duty.

(3.) SHRI Ashok Parmar, learned advocate appearing on behalf of the applicant has vehemently submitted that the learned Appellate Court has materially erred in upsetting the judgment and order of acquittal passed by the learned JMFC. It is submitted that when the learned Magistrate on appreciation of evidence and relying upon the medical certificates issued by the Civil Surgeon and the private doctor believed the case on behalf of the applicant that applicant was suffering from hypertension and other disease for which he could not resume the duty, the learned Appellate Court has materially erred in quashing and setting aside the order of acquittal passed by the learned JMFC and convicting the applicant for the offence punishable under Section 145(2) of the BP Act. It is submitted that as such there was no reason to disbelieve the certificate issued by the Civil Surgeon which was signed by him and therefore, the learned Appellate Court has materially erred in not relying upon and/or believing the certificates mark A/2 and A/3 and consequently has materially erred in convicting the applicant for the offence under Section 145(2) of the BP Act.