STATE Vs. JOGINDER SINGH

JUDGEMENT

(1.) THIS Revision petition filed by state through Shri Sunil Gupta, Junior Engineer, Transmission Line Construction Division No. 1, Jammu, seeking for setting aside the order passed by 1st Additional Munsiff Judicial Magistrate, Jammu dated 14 -12 -1984. The order of acquittal is challanged oh the ground of being illegal and contrary to the procedure established. It is alleged that prosecution witnesses namely Sunil Gupta, S.K. Raina, Sat Paul, Yash Paul, Munshi Ram, Shoukat Ali and Mir Mohd were the Government employees who should have been summoned by the Magistrate himself. No Process was ever issued against any of the witnesses. The stolen property is Government property and has wrongly been ordered to be restored in favour of the respondent without getting any proof from them. The Magistrate has lightly dealt with the matter and has not only acquitted the respondents but also has restored the property to one of the accused.

(2.) I have heard the learned Additional Advocate General and the learned counsel for the respondent. I have also examined the record of the trial court Mr. S. C. Gupta the learned counsel for the petitioner has raised an objection that in view of the provisions of sections 417 of the Criminal procedure code read with Section 439(5) of the Cr. P. C. the present Revision petition was not maintainable. He has further submitted that the Revision petition was also liable to be dismissed as the same was barred by limitation. It has been further argued that the order impugned is legally valid and as such do not require interference by this court.

(3.) IT is true that in a criminal case instituted on a police report, the, judgment of the trial court can be disturbed only in an acquittal appeal filed in accordance with the provisions of section 417 of Cr. P. C. The finding of the fact in a case culminating in the order of acquittal cannot ordinarily be disturbed by this court except in an appeal filed against the order of acquittal. However, it does not mean that the provision of section 417 or Section 439 (5) Criminal procedure code is an absolute bar for this court to interfere with the orders of acquittal in exercise of its revisional Jurisdiction in appropriate case, If it is found that trial court has failed to follow the procedure as established by Law or has committed irregularities or illegalities apparent on the face of record, the High Court would not be debarred from interfering with the orders of acquittal in appropriate cases in exercise of its revisional jurisdiction (1969 -Criminal Appeal reported Sc 452). In the instant case it appears from the record that the trial court has completely ignored the provision of Law relating to procuring the attendance and recording the statements of the prosecution witnesses. It is apparent from the record that no processes was issued by the Court for the service of the prosecution witnesses who were all Government employees. Even the prosecuting agency did not take any effective step for the production and examination of prosecution witnesses It is apparent that the prosecuting and the investigation agencies were hands in gloves with the accused persons and the trial Court failed in discharging the duties cast upon it for dispensing justice in accordance with the procedure established by Law. The record of the trial court reveals that warrants of arrest were issued against constable Munshi Ram but the negligence of the presiding officer is apparent from the interim orders passed by him on 18 -4 -1984, 26 -5 -1984, 23 -7 -1984, 3 -9 -1984,12 -10 -1984, and 12 -11 -1984 where no mention is even made about the issuance of such warrants. The manner in which the case has been dealt by the prosecution and the trial court with respect to public property is highly deplorable. The accused respondents were charged for having committed the offence of theft with respect to the property of the state have not only been acquitted but even prized for having committed the offence by release of the stolen property in their favour without there being any evidence on record to show that they had any right or interest in it. All the prosecution witnesses named herein above were officials and if the prosecution was not taking interest in securing their attendance for deposition in the court, it was obligatory for the trial court to have issued process against them for getting their statements recorded. The complainant has rightly complained in this petition that neither he nor any other witness of the Department was ever intimated about the pendency of a case in a court of law It is the practice of the courts in our state based upon the rules for guidance of Criminal Courts and instructions issued by the High Court from time to time to secure the attendance of Government official witnesses by issuing process itself and not to remain dependant on the prosecuting agency alone. In the instant case, the procedure adopted by the trial Court was illegal and the Court below has passed the order erroneously and illegally resulting in the miscarriage of Justice, it is a fit case in which the revisional power has to be exercised in the interest of Justice.