STATE OF GUJARAT Vs. BHARWAD POPAT ZINA

JUDGEMENT

(1.) THIS is an appeal filed by the State against the order passed by the learned Judicial Magistrate First Class Dasada in Criminal Case No. 413 of 1966 allowing one Karsan Parmabhai who had moved the police which had filed a complaint under secs. 447 and 427 of the Indian Penal Code and secs. 161 and 162 of the Gujarat Panchayats Act 1961 (Gujarat Act VI of 1962) whereby the case against the accused under the latter counts was allowed to be withdrawn. The learned Magistrate took cognizance of the case upon the report of the Police Station officer Dasada who charge sheeted the two respondents herein before him to stand their trial for the said offences. It appears that before the learned Judicial Magistrate Karsan Parmabhai who was the aggrieved party and at whose instance the police had moved the learned Magistrate to take cognizance of the case filed an application stating that the parties to the complaint viz. Karsan Parmabhai and the accused persons were not willing to proceed with the case and therefore the complaint may be permitted to be withdrawn. The learned Police Prosecutor does not appear to have been a party to this motion. Below the said application the learned Judicial Magistrate has passed the following order:-

(2.) NOW it was the police and not Karsan Parmabhai upon whose report the learned Magistrate had taken cognizance of the offences in question. Karsan Parmabhai had only lodged the information before the Police Station Officer who investigated the matter and charge sheeted the accused before the learned Magistrate. Karsan Parmabhai was not therefore the person who made the complaint within the meaning of the term as defined in sec. 4(h) of the Code of Criminal Procedure 1898 and there was no complaint as such to be dealt with under sec. 248 of the Code of Criminal Procedure. A complainant in a summons case may apply for permission to withdraw his complaint and the said section can have application only when the Magistrate has taken cognizance of a case upon a complaint preferred to him by the person who seeks to withdraw the complaint. In the case before me the complainant was the State as also appears from the title cause of the application for withdrawal made by Karsan Parmabhai himself. Karsan Parmabhai could not be said to be a complainant filing a complaint within the meaning of the term as defined in clause (h) of sec. 4 of the Code of Criminal Procedure. The learned Judicial Magistrate was therefore wrong in granting the permission to withdraw the charges and he should have allowed the case under secs. 161 and 162 of the Gujarat Panchayats Act to proceed notwithstanding the compounding of the case under secs 447 and 427 of the Indian Penal Code. In this view I am supported by the decision in Emperor v. Elias Arz Muhammad A.I.R. 1940 Sind 112 and that in Queen Empress v. Chenchayya and others I.L.R. 23 Mad. 626. In the latter case which was decided by a Division Bench of the Madras High Court the facts were that a complaint was made to the police and the latter caused charges to be preferred under secs. 143 and 504 of the Indian Penal Code against certain accused and the person who had complained to the police subsequently filed a petition praying the Second Class Magistrate to withdraw the charges under sec. 248 of the Code of Criminal Procedure and the learned Magistrate permitted the withdrawal and directed the accused to be at liberty. The Division Bench took the view that the order was bad there being no complaint in the case and that consequently the Magistrate in purporting to act under sec. 248 had exceeded his powers. In the instant case also there was no complaint because it is clear from the record that the Magistrate book cognizance of the case upon the police report. In my opinion therefore the learned Magistrate had exceeded his powers in allowing the withdrawal of the charges under the Gujarat Gram Panchayats Act. I must therefore quash the order of the learned Judicial Magistrate so far as it relates to the order of acquittal passed under sec. 248 of the Code of Criminal Procedure acquitting the accused of the charges under secs. 161 and 162 of the Gujarat Panchayats Act 1961 (Gujarat Act VI of 1962). Appeal allowed and the case is remanded to the Court of Judicial Magistrate Dasada for trial and disposal according to law under those two counts. Orders accordingly.