A U KURESHI Vs. HIGH COURT OF GUJARAT

JUDGEMENT

(1.) The petitioner Shri A.U.Kureshi, the then Civil Judge (J.D.) has challenged in this petition, the order of penalty of dismissal from service and prayed that the respondents be directed to reinstate the petitioner on the original post with continuity of service with all consequential benefits of service including back wages by quashing and setting the impugned order of dismissal from service.

(2.) The charge against the petitioner was that Criminal Case No.2059 of 1989 was pending in his court wherein the accused Ahmed Mir Sab Saiyed and others were arrested by PSI, Shri C.L.Salve, LCB, Bharuch on 4.11.1988 from village Palej for the offences punishable under Section 12 of the Bombay Prevention Gambling Act. During the raid, Rs.40,581/- were recovered along with other muddamal articles from the spot of the crime as well as from the accused persons who are arrested. Though the case was pending in the court since 1.2.1989 the plea of the accused could not be recorded by the court due to the absence of one or the other accused persons. During the pendency of the case, an application was submitted for handing over muddamal by another accused which was rejected by the predecessor in office of the delinquent officer. However, abruptly, the plea of the accused was recorded by the delinquent officer on 8.4.1992 vide Exhs.42 to 55. All the accused did not plead guilty to the charge levelled against them. Surprisingly, on that very day i.e. on 8.4.1992 accused No.2 Musa Mohammed Malji, who had never made any such application for handing over muddamal to him submitted an application dated 8.4.1992 (Ex.56) for releasing muddamal articles in his favour. Wherein it was specifically stated by him that the complainant-PSI seized the muddamal articles from the place of crime under seizure panchnama dated 4.11.1988. After recording the plea of all the accused on 8.4.1992 the delinquent officer first proceeded to record the evidence of Panch Witness-Chimanbhai Nathubhai Rana, who turned hostile and another formal witness PSI Shri Sutania on 27.4.1992 and 5.5.1992 respectively without issuing summons to the important witness like PSI Shri C.L.Salve, who had carried out the raid and other witnesses, who could have established the presence of the accused. Thereafter, the evidence of the prosecution was closed by him on 7.5.1992 and the case was kept for recording further statement of the accused on 11.5.1992 and on 14.5.1992 arguments were heard and on the next day i.e. on 15.5.1992 all the accused were acquitted by him.

(3.) It was the case of the department as per the complaint, panchnama and evidence on record that Rs.32,862/- were seized by the police from the spot of the crime and not from the person of the accused No.2-Musa Mohammed Malji. In spite of it, relying on the bare statement of the accused No.2-Musa Mohammed Malji, he ordered to return the said amount of Rs.32,862/- to the said accused No.2-Musa Mohammed Malji, that too within a period of 8 days before the expiry of one month period, as provided under paragraph 227(i)(a) of the Criminal Manual, 1977 though his attention was specifically drawn by Mr.B.D.Patel, Senior Clerk of the court. Para 227(i)(a) of the Criminal Manual reads as under :-