SITA RAM Vs. SITARAM PRASAD

JUDGEMENT

(1.) This appeal against acquittal has been filed by one Sita Ram, who was the informant in C. R. Case No. 188 of 1970 (Trial no. 176/74) disposed of by Sri D. N. Joshi, Judicial Magistrate, 1st Class, Aurangabad. The order of acquittal of all the 13 respondents was recorded on 18-3-1974. After obtaining leave of the Court under section 378 (4) of the Code of Criminal Procedure, 1973, the appeal against acquittal was filed on 19-6-1974. On 20-6-1974, the case was placed before S. K. Jha, J. for admission but it was ordered to be placed before another Bench. On 2-7-1974, it was placed before another Bench when a fresh stamp report was called for because the stamp reporter had reported the appeal to have been time-barred. A petition for condoning the delay under section 5 of the Limitation Act was subsequently filed. On 16-7-1974, the appeal was admitted and order was passed for hearing it along with the condonation petition. The appeal has accordingly been heard by me.

(2.) At the out set two points have been raised, namely, that the appeal is not maintainable, inasmuch as, the case was a police case and the informant of the case has no locus standi prefer this appeal after obtaining leave under section 378 (4) of the Code of Criminal Procedure, 1973. The second point is that the appeal is barred by time.

(3.) For appreciating the question of maintainability, certain details are necessary. The police case was instituted on basis of the statement of Sita Ram on 11-2-1970. The police investigated the case and submitted final report on 15-4-70. A protest petition had also been filled in the meantime on 6-4-1970. On 16-4-1970 the complaint was examined on solemn affirmation and an inquiry was orderd to be conducted by a Magistrate, Sri Pathak. On 11-54970, the Magistrate submitted his inquiry report finding a prima facie case against the respondents here. But on that date the order was only to place the matter with the records on the date fixed. On 2-64970, cognizance was taken after examining the final report by the Magistrate. Obviously the Magistrate rejected the report and took cognizance on basis of materials before him against the respondents. The last portion of this order shows that the Magistrate simply ordered the complaint petition and the inquiry report of the Magistrate to be kept on the record to form part of the same. It is further clear from this that he had not acted on that inquiry report. On 15-7-1970, an order was passed by the Magistrate to say that in the case procedure prescribed by sections 252 to 259 of the Code of Criminal Procedure, 1898 will be followed. These sections provide the procedure for trial of cases instituted otherwise than on the police report. On 12.8.1970, the informant filed a petition to say that as per order no. 2 dated 2.6.1970 the cognizance of the case was taken on basis of the police report and so it is the procedure prescribed by section 251-A of the Code of Criminal Procedure, 1898, which should be followed. This section provided the procedure to be adopted in cases instituted on the police report. Both the parties were heard on this point and the plea of the informant was accepted as per order no. 18, dated 15.8.1970. It has been specifically said in that order that as the cognizance had been taken in the case only on basis of the case diary and the final form submitted by the police, it was only desirable to adopt the procedure provided by section 251-A of the Code of Criminal Procedure, 1898. Thereafter the procedure for trial in a case instituted on police report" was adopted and ultimately the accused persons (respondents here) were acquitted on 13.3.1974.