D B SAXENA Vs. STATE OF U P

JUDGEMENT

(1.) These are two connected Misc. Applications Nos. 7899 of 1980 and 8010 of 1980 preferred under Sec. 482 Code of Criminal Procedure. In both the applications preferred by Sri D.B. Saxena, Food Inspector, a prayer has been made that the adverse observations made by Sri S.S. Nimesh, Judicial Magistrate, 1st Class, District Meerut, in his judgment dated 14 -7 -1980 annexed in the applications may be quashed.

(2.) The observations which are sought to be expunged have been quoted in paragraph 18 of the Misc. Application No. 8010 of 1980 and paragraph 15 of Misc. Application No. 7899 of 1980. The Magistrate made an acquittal in this case as the only witness examined was PW 1 Sri D.B. Saxena applicant and he too did not appear for his cross -examination on the date fixed when the evidence was ultimately closed.

(3.) It is submitted that before his transfer Sri Saxena after his statement in examination -in -chief did appear in the court of Judicial Magistrate and preferred applications for summoning other witnesses. It is submitted that thereafter as he himself stood transferred he could not appear on his own unless summoned from Roorkee District Saharanpur through the Chief Medical Officer. A number of applications given by Sri Saxena in course of hearing have been annexed. The first application is dated 22 -11 -1979 praying that other P Ws are required. Second application was preferred on 28 -2 -1980 also stating the names of other witnesses and their addresses and praying that their summons may be issued. The third application was preferred on 18 -3 -1980 again praying that summons issued by the court have not come back after service and summons may be issued afresh. There is another application dated 17 -5 -1980 filed in Misc. Case No. 7899 as annexure 5 by the very official. In this application it has been stated that while witness has attended the court many times on previous days his statement under Sec. 246 Code of Criminal Procedure has yet not been recorded. It was further stated that the witness has been transferred to Roorkee and may be summoned whenever he is required through CMO Saharanpur. It would, further, appear from the next annexure that the next Food Inspector Sri R.C. Sisodhiya, then preferred an application on 26 -6 -1980 praying that another date be given and fresh summons may be issued. It would further appear that when on the subsequent date also none appeared for the prosecution the Magistrate vide his judgment dated 14 -7 -1980 disposed of the case making acquittal. The judgments of the Magistrate do not indicate that actually personal service was made and yet the Food Inspector did not turn up. It would no doubt appear that in the judgment in case No. 482 of 1979 to which Misc. Application No. 8010 relates, the Magistrate observed that Food Inspector, Sri Saxena did not put in appearance for his cross -examination under Sec. 246 Code of Criminal Procedure for which sufficient time has been given. That observation is erroneous as I have already referred to a number of applications preferred by the Food Inspector, Sri Saxena praying for time for other witnesses and also making request that summons be issued. That itself indicate that he was present on a number of previous dates. Even if other witnesses had not turned up when this particular witness was present the Magistrate should have very well recorded his statement in cross -examination.