STATE OF GUJARAT Vs. NARUBHAI AMRABHAI CHUNARA

JUDGEMENT

(1.) " Whether an acquittal appeal filed by the State of Gujarat in the first instance can be said to be ready for the purposes of the same being enlisted in the final hearing board, more particularly in cases wherein the respondent-accused is declared absconding by the Court under Sec. 82 of the Criminal Procedure Code, 1973, and no appearance has been filed on his behalf and further as the very offshoot of the same, in the second instance, whether the said appeal can be heard and finally disposed of at the back or in absence of the said absconding accused ? This in short are two questions of indeed quite great importance which arise for consideration in the context and background of the following facts and circumstances of the instant case.

(2.) Stating succinctly, the respondent-Narubhai Amrabhai Chunara who came to be tried vide Sessions Case No. 236 of 1992 for the alleged offences punishable under Secs. 367, 323 read with Sec. 34 of I.P.C. by the learned Additional Sessions Judge, Kheda at Anand, was at the end of trial by the judgment and order dated 17-1-1994, ordered to be acquitted. Feeling aggrieved by the same, the State has preferred the present acquittal appeal, which came up for admission before this Court (Coram : K. J. Vaidya and B. J. Shethna, JJ.) wherein on 11-7-1994 following order was passed :-

(3.) 1 Thereafter as the bailable and failing which non-bailable warrant returned unexecuted with the police remarks that the accused was not available at his residence and further that his whereabouts were also not known, the learned A.P.P. requested this Court to grant some time to make an appropriate application under Sec. 82 of the Code to take further necessary steps for declaring the accused absconding. This was granted. The learned A.P.P. accordingly filed Misc. Criminal Application No. 4609 of 1995 for declaring the respondent as absconding. The said application was granted by an order dated 8-12-1995. Today, Mr. J. A. Shelat, the learned A.P.P. has submitted an affidavit filed by Mr. A. B. Joshi, Sr. P.S.I., Umreth Police Station wherein it is stated that necessary proclamation was published in local dailies, viz., 'Gujarat Samachar' and 'Naya Padkar' dated 19-12-1995 directing the respondent to appear before P.I., Umreth Police Station between 11-00 A.M. and 6-00 P.M. within 30 days from the date of publication of the proclamation in the said newspapers. Further, according to the learned A.P.P. despite the aforesaid notice issued in the two local dailies, since within the stipulated period of 30 days the respondent has not appeared before the concerned P.I., not only he should be declared as absconding, but the acquittal appeal filed against him by the State be treated as ready for final hearing and the office be accordingly directed to place the same on final hearing board as and when its turn is due in its ordinary course.