ABDULALI YUSUFALI Vs. ABDULHUSAN TAIYABALI DHALRIA

JUDGEMENT

(1.) The petitioner is the original complainant who filed Criminal Case No. 246 of 1975 in the Court of Judicial Magistrate First Class Dhoraji against the accused. He alleged that the accused had committed offences punishable under sec. 341 read with sec. 114 and sec. 500 read with sec. 114 of the Indian Penal Code. Respondents nos. 1 to 5 are the accused. Original accused no. 1 could not be served with the process of the Court inspite of several attempts which were made to serve him. He was therefore dropped from the case. On 24th February 1976 the complainant made an application to the learned Magistrate in which he prayed that amongst others Vada Mullaji of Dawoodi Vohra community should be summoned to give evidence. No objection was raised to that application at that stage. The learned Magistrate granted that application be his order dated 24th February 1976 On 8th March 1977 the accused made an application to the learned Magistrate in which they stated that before granting the application to summon amongst others Vada Mullaji to give evidence in the case they should be heard That application was rejected. However after hearing the parties the learned Magistrate made an order to record the evidence of Vada Mullaji on commission. On 29th April 1977 the complainant made an application to issue commission. It was objected to on behalf of the accused. By that application the complainant prayed that the learned Chief Metropolitan Magistrate Bombay should be requested to appoint some appropriate person as Commissioner to record the evidence of Vada Mullaji. That application was granted. A letter of request was sent to the learned Chief Metropolitan Magistrate Bombay for the purpose. The learned Magistrate further ordered that so far as the cost of examining Vada Mullaji at Bombay was concerned the question would be decided later on. On 23rd May 1977 the accused made an application calling upon the complainant to furnish to them interrogatories on the basis of which Vada Mullaji would be examined. In reply to that application the learned Magistrate heard the parties in the matter. The learned Magistrate instead of asking the complainant to furnish the interrogatories canceled all the earlier orders in the matter of examining Vada Mullaji. He observed in his order that the evidence of Vada Mullaji was not necessary to be recorded for the purpose of the present case.

(2.) It is that order which is challenged by the complainant in this petition.

(3.) Mr. Anand who appears on behalf of the petitioner-complainant has raised before me the following three contentions: