SANGAYAPPA MAHALINGAPPA JANGAM Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is a revision application filed by the original complainant against the order dated 18-9-1976 passed by the Judicial magistrate, First class, Mukhed acquitting the accused for offence under section 448 and 323 of the Indian Penal Code for want of evidence.

(2.) It appears that the petitioners complainant was beaten by the both the accused on 19-6-1976. He lodged a complaint with the police Station and in pursuance of the said complaint, accused No. 1 was arrested on 23-6-1976 and accused No. 2 was arrested on 21-6-1976 A charge-sheet against both the accused was filed on 28-6-76. Thereafter the case was adjourned to 7-7-76, 7-8-1976 and 9-9-1976 for framing a charge on the last mentioned date viz. 9-9-1976, a charge was framed against the accused for offences under sections 448 and 323 I. P. C. and the case was adjourned for hearing to 18-9-1976 on which date two separate applications were presented, one on behalf of the Police Prosecutor and another on be half of the petitioner complainant. Since the petitioner complainant had no locus standi to make the application it is not necessary to refer to the same except for stating that the same said application was for adjournment of the hearing of the case on the ground that the petitioner complaint had gone on pilgrimage and therefore the matter should be adjourned. This application was rejected by the learned Magistrate. How ever, we are concerned only with the application made by the Public Prosecutor In the body of his application the Public prosecutor stated that the complainant had gone to pilgrimage and the other witnesses including h. C. Joshi though served that their evidence was essential. While, however, making a prayer in the said application it was stated by the Public Prosecutor that the complainant be resummoned and bailable warrants should be issued against Maroti, nagorao and Pundlik. It was also then stated that H. C. Joshi was present in court and should be bound over for his further appearance. It must be stated that the record shows that earlier in the prayer clause, the Public Prosecutor had prayed for issuance of a bailable warrant even against H. C. Joshi. However, that sentence has been scored out later and instead it is stated tkat H. C. Joshi is present in Court" and he be bound over. The learned Magistrate rejected the said application after obtaining the say of the accused where in accused No. 2 stated that he was a teacher and on account of the present false case filed against him he was under suspension since June, 1976 and it was also stated that the delay in the trial of the case was only to harass him. Therefore the learned magistrate passed the impugned order whereby he observed as follows : "complainant and the witnesses remained absent though duly served. Prosecution 1submitted application to resummon the witness to which the advocate of the accused submitted say that the accused No. 2 is school teacher and he is under suspension. So to harass the accused, complainant and witnessess have remained abssnt and they will not return upto 3 months. Hence the application filed by the prosecution to resummon the witnesses is rejected and the accused No. 1 and 2 are acquitted u/s. 448 and 323 of I. P. C. for want of evidence.

(3.) It must be noted in this connection that admittedly H. C. Joshi who field the Police report in the present case is the complainant on behalf of the prosecution as far as the offence under section 323 I. P. C. is concerned which is a non-cognizable offence. As regard the offence under section 448 I. P. C. is concerned which is a cognizable offence, the State itself is the complainant. As the prayer clause in the application made by the Public Prosecutor shows, H. C. Joshi was present in court and therefore the learned Magistrate could not have proceeded to acquit the accused without examining him, merely because the other witnesses were not present. As regards the offence under section 448 I. P. C. is concerned, when it was pointed out to the Court that the witnesses though served had remained absent and an application for issuance of bailable warrants against them was made, the learded Magistrate had no jursdiction to acquit the accused on the ground that the witnesses including the original complainant i. e. petitioner herein were not present. He ought to have proceeded to issue warsants against the said witnesses under section 87 (b) of the Criminal procedure Code, 1973 Instead the learned magistrate acqitted the accused 'for want of evidence. " The procedure adopted by the learned Magistrate was therefore clearly contrary to the provision of law and the impugned order will have therefore to be set aside, the same being illegal and without jurisdiction.