STATE OF GUJARAT Vs. MER JIVA RANMAL

JUDGEMENT

(1.) It is said : "A little learning is a dangerous thing". How the little learning of law on the part of the learned Judicial Magistrate, First Class, at Mangrol has dangerously resulted in mockery or travesty of justice is very well reflected in this case wherein the order of releasing the respondent herein on probation under Sec. 4(3) of the Probation of Offenders Act, 1958 (the Act for brief) passed on 28th May 1985 below the Application at Exh. 25 in Criminal Case No. 27 of 1984 is under challenge under Sec. 11(2) thereof read with Sec. 377(1) of the Code of Criminal Procedure, 1973 (the Cr. P.C. for brief).

(2.) This case has a somewhat chequered history. The respondent herein appears to have committed offences punishable under Secs. 326 and 506(2) of the Indian Penal Code, 1860 (the I.P.C. for brief) by severely beating the complainant, named, Dudabhai Samatbhai Mer, at about 10-30 a.m. on 31st December 1983. The necessary charge-sheet was presented in the Court of the learned Judicial Magistrate, First Class, at Mangrol on 15th February, 1984. It came to be registered as Criminal Case No. 27 of 1984. The charge against the respondent was framed on 2nd March 1984. It is at Exh. 4 on the record of the case in the trial Court. The accused did not plead guilty to the charge. In that case, according to the well settled principles of law, the learned trial Magistrate was required to proceed with the trial of the case by recording evidence and carrying the trial to its logical conclusion. For some mysterious and unknown reasons, the learned trial Magistrate (I wonder whether he can be called "learned" in that context) proceeded to call for the probation report as if he had determined to grant probation to the respondent herein well in advance. The learned trial Magistrate might have been justified in calling for the probation report under the Act if the respondent as the accused had pleaded guilty to the charge. When there was no plea of guilt to the charges framed, the learned trial Magistrate had no option but to proceed with the trial of the case by recording evidence and proceeding with the case according to law. Instead, as pointed out hereinabove, presumably with a pre-determined mind of granting probation to the respondent herein as the accused, the learned trial Magistrate called for the probation report. With respect, the learned trial Magistrate has by adopting such dubious course exhibited his total ignorance of even elementary principles of law. Such approach on the part of the learned trial Magistrate deserves condemnation in the strongest possible language so as to deter other judicial officers of the like category from treading such dangerous path resulting in mockery and travesty of justice.

(3.) It may be mentioned at this stage that after framing the charge on 2nd March 1984 at Exh. 4 on the record of the case, the learned Additional Public Prosecutor made an application that the complainant, being the injured victim of the offence alleged to have been committed by the respondent herein as the accused, was the Sarpanch of Village Antroli and was, therefore, a Public Servant within the meaning of Sec. 21 of the I.P.C. and as such the respondent herein would be guilty of the offence punishable under Sec. 333 of the I.P.C. and the accused would be triable by the Court of Sessions. Its copy is at Exh. 6 on the record of the case. By his order passed on 21st May 1984 therebelow, the learned trial Magistrate rejected that application on the ground that the Sarpanch of a Village Panchayat is not a Public Servant. That matter was carried in revision before the Sessions Court at Junagadh. It came to be registered as Criminal Revision Application No. 90 of 1984. By his order passed on 15th January 1985 in the aforesaid revisional application, the learned Sessions Judge did not think it fit to interfere with the aforesaid order passed by the learned trial Magistrate on the ground that, if it was found in the course of trial that an offence punishable under Sec. 333 of the I.P.C. was made out, the learned trial Magistrate should commit the case for trial to the Sessions Court in accordance with law and in accordance with the provisions contained in Sec. 323 of the Cr. P.C. Its copy is at Exh. 22 on the record of the case. The aforesaid decision of the learned Sessions Judge was a clear pointer to the learned trial Magistrate that he was required to proceed with the case and to conduct the trial by recording evidence. It appears that the learned trial Magistrate did not receive any hint even from the aforesaid decision of the learned Sessions Judge. In the meantime, the Probation Officer's report was received. Its copy is at Exh. 18 on the record of the case. Recommendation for grant of probation was made therein. It appears that, only thereafter, the respondent herein as the accused made one application on 30th April 1985 requesting the Court for grant of probation to him. Its copy is at Exh. 25 on the record of the case. It appears that the learned Additional Public Prosecutor raised a strong objection to the grant of probation at that stage by causing his reply thereto on that very day, that is, on 30th April 1985. Its copy is at Exh. 26 on the record of the case. After hearing the parties, by his order passed on 28th May 1985 below the Application at Exh. 25 in Criminal Case No. 27 of 1984, the learned trial Magistrate ordered releasing the respondent herein on probation for one year under Sec. 4(3) of the Act on obtaining a bond of Rs. 1,000.00 for his good behaviour and he was ordered to be placed under the supervision of the Probation Officer during the period of probation. The aggrieved prosecution agency has thereupon approached this Court by means of this appeal under Sec. 11(2) of the Act read with Sec. 377(1) of the Cr. P.C. for questioning the correctness of the aforesaid order passed by the learned trial Magistrate below the Application at Exh. 25 in Criminal Case No. 27 of 1984.