STATE OF GUJARAT Vs. GORDHANBHAI CHANDUBHAI PATEL

JUDGEMENT

(1.) THIS Criminal Appeal is directed against the order dated 16th September 1995 passed by the learned Judicial Magistrate, First Class, Kalol, District Panchmahals in Criminal Case No. 733 of 1991 whereby he has stopped the proceedings in the criminal case. The offences alleged in the criminal case were under Sections 380, 504, 506, 594 and 114 of the Indian Penal Code. When the matter came up before the Court on 19 -8 -1996 notice was issued to the respondents as to why leave may not be granted because it was argued by the learned Addl. Public Prosecutor who appeared on that day that the proceedings had been stopped under Section 258 of the Code of Criminal Procedure because the prosecution witnesses did not turn up and the Court's query was as to how the Appeal under Section 378 had been filed in the instant case because there was no order of acquittal passed by the learned Magistrate. In response to this notice Mrs. Subhadraben Patel had entered appearance on behalf of the respondents, i.e. Govindbhai Chandubhai Patel and Bhartiben. The offences which were alleged against the respondents were not the offences for summary trial and therefore, there was no question of resorting to the procedure under Section 258 of the Code of Criminal Procedure. Because the orders under Section 258 of the Code of Criminal Procedure can be passed for stopping the proceedings only when a case is instituted otherwise than the complainant and only in such cases for the reasons to be recorded, the Magistrate may stop the proceedings at any stage without pronouncing any judgment and even in such cases, if the proceedings are stopped before recording evidence of the principal witness the release of the accused has the effect of discharge only. In any case the impugned order as has been passed in the instant case on 16th September 1995 by the Judicial Magistrate, First Class, does not show that he has passed any order of acquittal nor it can be construed to be an order of acquittal. All that has been said by him in the order is that the complainant was not present for evidence despite service of the warrant and on that basis the case is disposed of by way of stopping the proceedings. In my opinion, this order cannot be taken as an order of acquittal so as to be appealable under Section 378 of the Code of Criminal Procedure. The learned Additional Public Prosecutor has raised a grievance that if the witnesses do not turn up the Magistrate has to follow the procedure required under Section 350 of the Code of Criminal Procedure and he has placed reliance on the decision rendered by our own High Court reported in 1991(2) GLR Pg. 995 [State of Gujarat v. Dr. .C. K. Patel] and 1995 (2) GLR Pg. 110 [B. J. Pandya v. Arvindkumar K. Hadial]. In the State of Gujarat v. Dr. C. K. Patel's case this Court was concerned with the trial in respect of the offence under labour legislation and the Court noticed the tendency on the part of the Magistrates to unduly prolong the trial and then acquitting the accused on the ground of absence of complainant and while deprecating such practice, the Court's intention was for vigilance and to ensure speedy trial. In the other case of B. J. Pandya (supra) the Court had noticed that a bunch of 219 criminal cases were decided by learned Magistrate by one stroke of pen acquitting the accused persons on the ground of absence of the complainant when the cases were called out and the Court found that the passing of such order shows scant regard and the Court also noticed that the acquittal orders had been passed and it was found that it was a case of grave impropriety and perverse illegal practice of scoring the cheap disposal. So far as the facts of the present case are concerned, the above cases may not be of any help because it appears that it was basically a case of the grievance of the complainant against the respondent Gordhanbhai who was alleged to be living with Bhartiben and he in fact had come with the grievance that his wife Bhartiben had been induced by respondent No. 1 to live with him and it was alleged that the golden nose -ring worth Rs. 75/ - was also stolen by the respondent. In such cases when on the basis of the complaint of Bhartiben' s husband Vadilal Shankarbhai Varia the offence under Sections 380, 504, 506, 594 and 114 may have been alleged but the learned Magistrate must have considered that basically it was a case of grievance of 494 against his wife and respondent No. 1 Gordhanbhai. In such cases when the learned Magistrate noticed that the complainant himself was not turning up despite the service of the warrants for the purpose of giving evidence before the Court in support of the offence he must have thought that it will be an exercise in futility to go ahead with the matter. Looking to such facts when the complainant himself did not turn up, if the Magistrate has passed an order of stopping the proceedings whatever consequences it may have, it cannot be said that the order passed by the learned Magistrate warrants any interference before this Court either by way of an Appeal under Section 378 of the Code of Criminal Procedure or by way of Revision as has been requested by the learned Additional Public Prosecutor. I do not find that in the case of this nature when the Trial Court comes to the conclusion that going ahead with the trial will be an exercise in futility and therefore, it is neither a case worth entertaining the Appeal nor a case to accede to the request of learned Addl. Public Prosecutor to convert this Appeal into a case of revision so as to prolong the case in which nothing is going to happen except wastage of time, money and energy of the parties including the State.

(2.) I do not find it a case worth granting relief. Leave is therefore refused. Appeal is hereby dismissed and the notice is hereby discharged.