JAMNAPRASAD SARJU TIWARI Vs. SABAN K DHONE

JUDGEMENT

(1.) THIS is a criminal appeal filed by one Jamnaprasad Sarju Tiwari, a resident of Goregaon, who is supposed to have been conducting a Panshop at Plot No. 62, Jawahar Nagar. It is alleged that on 14-8-1981, the four accused who are officers-employees of the Bombay Municipal Corporation demolished the pan shop in spite of protests of the appellant, He, therefore, prosecuted the four public servants for offences under section 427, 447 read with section 114 of the Indian Penal Code in the Court of the learned Metropolitan Magistrate, 26th Court, Borivali, Bombay, in Case No. 227/s/81. Ultimately, on 10-8-1983, the learned Magistrate acquitted all four accused, the main ground being that the complainant gave evidence and thereafter went away to his native place and was not available for further cross-examination. Not being content with having harassed the public officials for two years through such proceedings, the complainant thereafter filed the present appeal and obtained the leave of this Court in the year 1984 to present an appeal against the order of acquittal. The appeal has been on board for the last several days and when the appeal was called out for hearing yesterday, neither the appellant nor his Advocate was present. Regardless of that fact, I have gone through the paper-book carefully. I have heard learned Counsel appearing on behalf of the Bombay Municipal Corporation and its officers as also the learned A. P. P. , and I am constrained to observe that the present appeal is not at all justified as the appellant abruptly left when the proceedings before the trial Court were part-heard and, therefore, cannot complain about the order of acquittal.

(2.) IT is unfortunate that process was even issued against the employees of the Bombay Municipal Corporation who were apparently carrying out their function within the framework of law. The complainant has made out a rather involved case contending that he had every right to continue with his pan shop at that place and, furthermore, that the Bombay Municipal Corporation was obliged to provide him with an alternative spot even if it was justified in demolishing the pan shop in question. Be that as it may, it is extremely difficult to fathom as to how and under what circumstances the public officials on the facts of this case could have been hauled up as accused before the Criminal Court on the alleged charges when there does not appear to be any valid licence in favour of the appellant.

(3.) THE only point raised in the present appeal in that the learned Magistrate had erred in law in having acquitted the accused, in spite of the evidence of the complainant. The deposition of the complainant was required to be totally ignored in so far as if he had decided to indulge in the luxury of prosecuting the public officials, obviously in order to pressure them, it was a requirement of law that he should have seen that proceeding through. Having gone away to his native place, he cannot expect a Court of law to indefinitely keep a proceeding that was three years old pending any longer nor could he have, for that matter, expected that the Court can convict the accused without there being any justification therefor. Under these circumstances, even an application that the trial should continue from the point at which it was stopped is wholly misconceived because, to my mind, no case whatsoever is made out in the first instance.