STATE OF MAHARASHTRA Vs. MARUTI DADU KAMBLE

JUDGEMENT

(1.) The State has preferred this appeal against the acquittal of the respondent-accused by the Judicial Magistrate, First Class, Ichalkaranji (Mr. A.D. Deshpande), of the offence under section 12(a) of the Bombay Prevention of Gambling Act, 1887 (hereinafter referred to as "the Gambling Act").

(2.) Ichalkaranji Police-Station submitted charge-sheet against the respondent-accused on 2nd August, 1980 in the Court of the learned Judicial Magistrate, First Class, Ichalkaranji, for the offence under section 12(a) of the Gambling Act. On the same day the learned Judicial Magistrate ordered issue of process against accused. On 7th August, 1980, Vakalatnama of Mr. R.S. Bichkar and Mr. J.A. Balugade on behalf of the accused was filed. Copies of police papers were supplied to the accused. The matter was adjourned for plea of the accused to 11th August, 1980. On 11th August, 1980 the accused pleaded not guilty and hence the case was adjourned to 19th August, 1980 for recording prosecution evidence. On 19th August, 1980 the case was adjourned to 26th August, 1980, as witness summonses were not issued and on that account no witness was present. On 26th August, 1980, the State was represented by the Public Prosecutor. The accused alongwith his Advocate Shri Bichkar was present. The learned Judicial Magistrate passed the order as follows :

(3.) The learned Public Prosecutor Mr. M.D. Gangakhedkar submits that the learned Judicial Magistrate without issuing summonses to the witnesses and without giving opportunity to the prosecution to produce the witnesses should not have passed the order of acquittal of the respondent accused. He submits that the learned Judicial Magistrate has completely disregarded the provisions of trial of summons cases appearing in Chapter XX of the Code of Criminal Procedure, 1973. He submits that the learned Judicial Magistrate was not justified, without issuing summonses to the witnesses and without allowing opportunity to the prosecution to reduce their evidence, in acquitting the accused and as such the order passed by the learned Judicial Magistrate on 26th August, 1980 acquitting the accused is liable to be set aside and the matter needs to be remanded to the trial Court for retrial and decision according to law. The learned Counsel Mr. Ashok P. Mundargi appearing for the respondent submits that he does not justify the procedure followed by the learned Judicial Magistrate. According to him, the learned Judicial Magistrate should have issued summonses to the witnesses and should have given opportunity to the prosecution to adduce evidence before passing the order of acquittal. At the same time he contends that the offence alleged against the respondent is a petty offence under section 12(a) of the Gambling Act for which the sentence provided is R.I. for three months and a fine of Rs. 300/- and that the respondent is under the shadow of prosecution since the present appeal has been admitted in the year 1980. According to the learned Counsel, though the order of the learned Judicial Magistrate acquitting the accused may be bad in law, looking to the passage of a long period of eight years it would be a great torture to the accused in case he is ordered to face retrial.