STATE OF GUJARAT Vs. SAMAJ ALIAS ISMAIL AHMED

JUDGEMENT

(1.) This appeal arises out of an order passed on 14-12-65 by Mr. S. C. Shah Judicial Magistrate First Class Jambusar in Criminal Case No 1010 of 1965 whereby the accused-respondent came to be acquitted under sec. 345(2) of the Criminal Procedure Code in respect of an offence under sec. 324 of the Indian Penal Code.

(2.) The accused-respondent was charge-sheeted by the police for an offence under sec. 326 or the Indian Penal Code in the Court of the Judicial Magistrate First Class at Jambusar for having voluntarily caused grievous hurt with a knife to one Raising Dispsing the servant of too complainant Dahyabhai Haribhai on the evening of 16th July 1965 at the village of Kavi in Jambusar Taluka. Then on a consideration of the documents placed by the prosecution in the case before him the learned Magistrate passed an order Ex. 3 on 3-9-65 saying that the offence disclosed therefrom was one under sec 324 of the Indian Penal Code and that way framed a charge accordingly on 29th October 1965 against the accused. To that charge he denied to have committed any offence. Thereafter on 14 the complainant the accused and the injured person Raising Dipsing appeared before the Court and presented a joint statement inter alia saying that with a view to foster communal harmony and to prevent communal disturbance in the town permission to compromise the matter may be accorded. That was opposed by the learned Police Prosecutor as per the application Ex. 11 given by him to the Court. In that application he stated that the learned Magistrate has committed an error in framing the charge against the accused under sec. 324 of the Indian Penal Code and that since the injured Raising had in fact remained in hospital for treatment of his injuries for more than 20 days it was essential to record the deposition of the Medical Officer who treated him before considering as to whether the permission sought for the compromise should be accorded. The learned Magistrate rejected that application inter alia observing that the charge was framed against the accused long before by passing an order so far back as on 3-9-65 and that it was not sought to be set aside by filing an application in revision against the some. He has then stated that the offence under sec. 324 of the Indian Penal Code was compoundable with permission of the Court and as per the reasons stated below Ex. 10 he granted the permission for the same and then passed the final order accepting the compromise arrived at between the parties and in the result acquitted the accused under sec. 345(2) of the Criminal Procedure Code. Feeling dissatisfied with that order the State has come in appeal.

(3.) The conception of Mr. Thakar the learned Assistant Government Pleader for the State is that the papers on the basis of which the learned Magistrate chose to frame the charge against the accused disclosed an offence as one of grievous hurt contemplated under sec. 320 clause (8) of the Indian Penal Code and that at any rate it was the duty of the learned Magistrate to have the evidence of the Medical Officer recorded in that regard before granting the permission sought for the settlement between the accused and the injured person in respect of the offence under sec. 324 of the Indian Penal Code. The appeal is against an order of acquittal passed by the learned Magistrate under sec. 345(2) of the Criminal Proce- dure Code. The charge against the accused-respondent as it stood then was one under sec. 324 oP the Indian Penal Code and that offence was compoundable with the permission of the Court with the person to whom the hurt was caused. The learned Magistrate took into account the reasons stated in the application Ex. 10 and granted the permission sought for Compounding the said offence. As observed by the learned Magistrate the permission deserved to be 8ranted in order to foster communal harmony and to prevent communal disturbances Then in the end he has observed that to maintain public peace and communal harmony the permission is granted. At the same time he rejected the application No. 11 given by the learned Police Prosecutor for examining the Medical Officer so as to show to the Court that the charge that would stand against him would be one under sec. 326 of the Indian Penal Code and that since that offence was not compoundable the application for composition of the offence should be rejected. That application came to be rejected and it was then that he passed the order under sec. 345(2) of the Criminal Procedure Code and acquitted the accused under sec. 345(6) of the Criminal Procedure Code. Thus the order passed in the case cannot be said to be in any way illegal or improper. Since the charge as I said above was one under sec. 324 of the Indian Penal Code and that way compoundable with the permission of the Court there was nothing wrong with granting permission on the grounds stated in the order.