NARBHERAM Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is a petition to quash and set aside the judgment and order dated 24-12-1985 passed by the learned Judicial Magistrate, First Class, Deesa in Criminal Case No. 497/82 acquitting the original accused Nos. 2 and 3 and to pass all other incidental and consequential orders in this regard. It is further prayed in this petition that there must be a declaration to the effect that S. 378(4) of the Code of Criminal Procedure, 1973 is arbitrary and violative of provisions of Art.14 of the Constitution of India.

(2.) The short facts of the case are that the petitioner filed a complaint before the Police on 17-12-1982 to the effect that the nephew of the petitioner Girishkumar was beaten up by the accused when they were returning to their house at 6.00 p.m. It is not necessary for us to give the other details of the complaint. Suffice it to say that the Police under S. 173 filed the charge and ultimately the learned Judicial Magistrate, First Class, Deesa acquitted all the three accused. Questioning the acquittal and also to declare S. 378(4) as ultra vires the Constitution as offending Art. 14, the present Special Criminal Application has been filed.

(3.) Mr. Raju, the learned Counsel appearing for the petitioner, pointed out the provision under S. 378 (4). It is in pari materia with the old S.417(3). S.378(4) reads as follows: