STATE OF GUJARAT Vs. VORA SAIFUDDIN AKBARALI

JUDGEMENT

(1.) The facts giving rise to this reference broadly stated are that one Patel Laljibhai Somabhai of village Juval Rupavati filed Civil Suit No. 11 of 1964 in the Court of the Joint Civil Judge (J.D.) at Dholka against Vora Safakathusein Yusufali the complainant in the present case and his brother Vora Ahmedhusain Yusufali for recovering a sum of Rs. 2000.00 on the basis of a cheque dated 22-11-63 drawn in the namo of self under the signature of the complainant Vora Safakathusein Yusufali Lakdawala on the Bombay Mercantile Co-operative Bank Ltd. Ahmedabad Branch. In that suit the defence of the complainant and his brother Vora Ahmedhusain Yusufali was that the cheque in question and certain coupons which were produced and relied upon in that suit were forged and a false suit in collusion with the accused In this case was filed. That suit came to be dismissed on 30-11-1965 by Shri R. M. Atodaria Joint Civil Judge (J.D.) Dholka. Thereafter on 16 the complainant Vora Safakathusein Yusufali Lakdawala filed a complaint in the Court of the Judicial Magistrate First Class Dholka against the two accused for offences punishable under secs. 467 and 471 of the Indian Penal Code. After making the necessary inquiry the learned Magistrate committed both the accused to the Court of Sessions Ahmedabad (Rural) at Narol to stand their trial for offences under secs. 467 and 471 read with sec. 34 of the Indian Penal Code That Sessions Case No. 45 of 1966 was transferred to the Court or the Assistant Sessions Judge Ahmedabad (Rural) at Narol for disposal in accordance with law.

(2.) Before the trial began the accused No. 2 presented an application inter alia contending that the provisions contained in secs. 195(1)(c) 476 and 479A of the Criminal Procedure Code were not complied with and consequently the committal proceeding were bad in law. He therefore prayed that the order of commitment should be quashed. Since the learned Assistant Sessions Judge was not authorised under sec. 438 of the Code of Criminal Procedure to report the case to the High Court he addressed a letter to the Court of Sessions in that regard and consequently that Sessions Case No. 45 of 1966 was withdrawn from his file and taken over on his file. That application was then heard by the learned Sessions Judge Ahmedabad (Rural) at Narol. Before him the learned Assistant Public Prosecutor conceded that having regard to the fact that the provisions contained in secs. 195(1)(c) 476 and 479A of the Criminal Procedure Code were not complied with the order of commitment was bad in law and that it required to be quashed. The learned Sessions Judge also found that the complaint filed in the Court of the Judicial Magistrate First Class against the accused in the case was bad inasmuch as no sanction was obtained from the Court of the Civil Judge where the alleged forged cheque was produced. That being so the commitment order was also bad in law and he has consequently referred the matter to this Court for quashing the order of commitment made under sec. 215 of the Criminal Procedure Code.

(3.) Mr. Nanavaty the learned Assistant Government Pleader opposes the acceptance of the reference whereas Mr. Shah the learned advocate for the accused supports the reference. Mr. Trivedi the learned advocate for the complainant joins hands with the arguments advanced by the learned Assistant Government Pleaded in this Court.