STATE OF GUJARAT Vs. NAGIN AMARA VASAVA

JUDGEMENT

(1.) The State of Gujarat the appellant herein is dissatisfied and aggrieved by the order of acquittal in respect of the present respon- dents nos. 1 to 15 passed by the learned Judicial Magistrate first Class Jhagadia on 23 4-1979 from the charge under secs. 143 147 148 149 426 336 337 225 of the Indian Penal Code and sec. 135 of the Bombay Police Act.

(2.) The prosecution-case before the learned Judicial Magistrate was that the accused Nos. 13 to 15 (the present respondents Nos. 13 to 15) were apprehended while committing theft of cotton-pods. They were detained at the house of Police Patel village Chikli. Therefore accused Nos. 1 to 12 and some 150 other persons formed an unlawful assembly at 13-30 hours and attacked equipped with weapons the house of Police Patel and the water-works of the Panchayat. In the course of that attack P. W. 2 was injured on his eye-brow.

(3.) The Rajkam of Criminal Case No. 1448 of 1978 shows that a charge-sheet was filed dated 10-7-1978 (The copy of the charge-sheet in the paper-book shows the date 1-5-1978). Before that on 31-3-1978 the application for the remand of the accused was granted. The learned Magistrate framed a charge against the accused which is at Exh. 3. It is dated 6-3-1979. The Magistrate then recorded the statements of the accused all of whom pleaded not guilty to the charges leveled against them. These statements were recorded on 6-3-1979 as shown under the statements themselves. In the Rojkam the date is shown as 16-3-1979. Apart from this discrepancy which is not germane for our purpose the Rojkam dated 16-3-1979 further reads that the accused pleaded not guilty and the matter was adjourned to 3-4-1979 and the Public Prose- cutor was informed accordingly. On 3-4-1979 the complainant remained absent although summons was served upon him to remain present on that day. A bailable warrant was therefore issued on the complainant to remain present on 23-4-1973. On 23-4-1979 the learned Asstt. Public Prosecutor submitted an application stating therein that this Criminal Case had been fixed on 3-4-1979 to record evidence but the complainant did not remain present though served with a summons. A bailable warrant was therefore issued which could not be served on the complainant. It was further submitted that it would not be in the interest of justice to close the prosecution evidence only on the ground that the warrant was not served on the complainant. It was further submitted that it had not happened that prosecution witnesses could not be kept present despite having given to the prosecution several opportunities to do so. It was further submitted that therefore one more opportunity may be given to the prosecution to serve the summons on the complainant. The learned Magistrate for the reasons stated in his order dismissed the aforesaid application submitted by the learned Assistant Government Pleaded. It is pertinent to note that on 23-4-1979 a Vakalatnama of Shri Thakurkrishna R. Shah Advocate Jhagadia was filed on behalf of the complainant. After rejecting the application for adjournment filed by the learned Assistant Public Prosecutor on 23-4-1979 the learned Magistrate delivered the judgment and acquitted all the 15 accused. He has stated inter iota in his judgment that it was not proper to grant an adjournment if the endorsement on the warrant was that it could not be served as the complainant was out of station. In his opinion it would mean that the complainant did not intend to remain present on the day of hearing. Since the complainant was not present and since no other witness was also present the learned Magistrate came to the conclusion that prosecution had failed to prove its case.