CR.A/904/1996 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 904 of 1996 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = GULAM AHMED BAGAS Versus STATE OF GUJARAT & OTHERS ========================================= = Appearance : NOTICE SERVED for Appellant (MR BN KESHWANI) for Appellant MS ARCHNA RAVAL APP for Respondent No.1 NOTICE SERVED for Respondent Nos. 2 - 3 MR BM MANGUKIYA for Respondent Nos.2 - 3 ========================================= = CORAM : HONOURABLE MR.JUSTICE J.R.VORA CR.A/904/1996 2/7 JUDGMENT Date : 21/11/2008 ORAL JUDGMENT 1. The instant appeal is preferred by the original complainant of Criminal Case No.1086/2007 filed in the Court of learned Judicial Magistrate, First Class, Jambusar for acquitting the present respondent Nos.2 and 3 being accused of the said Criminal Case for the offences punishable under Sections 324, 325, 504 and 114 of the Indian Penal Code as well as under Section 135 of the Bombay Police Act. 2. The brief fact of the present case reveals that the present appellant, original complainant perhaps, on direction of the police presented himself before the Jambusar Police Station on 13.04.1987 at about 8.00 a.m. One Valibhai of Jambusar cousin brother of the complainant had accompanied him. In absence of Police Sub Inspector, Jambusar Police Station, both of them waited till 10.00 a.m. and, thereafter, the complainant was called by respondent No.3 in his Chamber at Police Station. As soon as the complainant and Valibhai entered the Chamber of respondent No.2 PSI and No.3, who was also PSI, both started beating the complainant and Valibhai with genda stick. The present appellant – complainant was seriously injured and Valibhai was asked to go away from there. The present appellant being accused in the crime was arrested in connection with C.R.No.I-19/1987 registered with Jambusar CR.A/904/1996 3/7 JUDGMENT Police Station for the alleged offences punishable under Sections 323, 324, 504 and 114 of the Indian Penal Code and under Section 135 of the Bombay Police Act. The said complaint was lodged by one resident of Khanpur and thereafter, the complainant – appellant herein was remained in the police custody. According to the case of the complainant, he was beaten during night hours also by the respondent Nos.2 and 3 herein. The threat allegedly administered by respondent No.3 to the complainant that if any complaint is made about ill-treatment to anybody, he would be again arrested and would be beaten. The appellant was produced before the learned Judicial Magistrate, First Class, Jambusar on next day morning i.e. on 14.04.1997. On inquiring by the learned Magistrate, the appellant made a complaint about ill-treatment by the respondent Nos.2 and 3 and, therefore, the learned Magistrate forwarded the complainant, appellant herein to the Medical Officer for examination. After examining, Medical Officer, Jambusar forwarded the complainant, appellant herein to SSG Hospital, Vadodara. According to the complainant, both the Medical Officers of Jambusar as well as Vadodara forwarded their certificates to the learned Magistrate and subsequently, by his order dated 12.05.1987, learned Magistrate suo moto took the cognizance of offence and directed to issue summons to the respondent Nos.2 and 3 for the offences punishable under CR.A/904/1996 4/7 JUDGMENT Section 323, 504 and 506(A) of the Indian Penal Code. According to the complainant, he attended the said Court numbers of time and presented himself before the Court. But, however, ultimately, the learned Magistrate dismissed the complaint being Criminal Case No.1086/1987 vide impugned order dated 27.05.1996 and acquitted the accused, respondent Nos.2 and 3 herein under Section 256 of the Code of Criminal Procedure and hence, this appeal by the original complainant by obtaining leave to appeal under Section 378(4) of the Code of Criminal Procedure. 3. It appears that this Court admitted the appeal after granting leave to appeal on 17.10.1996. 4. It appears that, appeal might have been notified before the Hon'ble Single Judge and on 13.06.2006, this Court passed an order that the learned counsel Mr.Keshwani submitted a pursis before this Court seeking permission to withdraw his appearance in this matter, as the complainant had taken away papers from him. The said pursis was taken on record and learned counsel Mr.Keswani for the appellant – complainant was permitted to retire. This Court also directed to issue notice to the appellant – complainant. In the board today, an endorsement of the office shows that notice is served upon the appellant, but even after the repeated call outs, nobody is present on behalf of the appellant. CR.A/904/1996 5/7 JUDGMENT 5. Learned APP Ms.Archna Raval was heard on behalf of the respondent No.1 – State. While learned advocate Mr.B. M. Mangukia for the respondent Nos.2 and 3 is not present. 6. However, this Court has gone through the record entirely and very carefully. It is found that the complainant, present appellant was not presenting himself before the learned Magistrate for a long period. It appears that first application to this effect was given by the respondents before the Court at Ex.89 on 13.10.1995 wherein it was submitted by the respondents side that since long, the present complainant was not remaining present before the Court and he had gone to foreign country and was not likely to return. It was urged that after the stage of evidence of the complainant be treating as over, the matter be proceeded further. The matter was kept for hearing and ultimately, on 30.11.1995, learned Magistrate passed an order that the complainant to remain present positively on the next date, otherwise, the necessary orders would be passed. Thereafter, it appears that an application was also preferred again by the accused in 1996 wherein a grievance was expressed that the complainant was not remaining present and the complaint was required to be dismissed. An application was preferred on 03.05.1996 and on the same day, the learned Magistrate passed an order that neither the complainant nor learned advocate for the CR.A/904/1996 6/7 JUDGMENT complainant was present and in the interest of justice, the matter was fixed for hearing on other date i.e. on 27.05.1996. On that day, the learned Magistrate passed an order that both the learned advocates were heard and learned Magistrate further observed that vide Exs.16 and 17, on 19.08.1988, plea of the accused i.e. present respondent Nos.2 and 3 was recorded and right from there, the complainant was remaining absence. The Court had earlier directed the complainant to remain present, but he failed to remain present before the Court for recording of the evidence. The learned Magistrate further observed that the complainant was given fullest opportunity to produce the evidence, but he had not tendered any evidence nor remained present before the Court of Magistrate and, therefore, he directed that Criminal Case No.1086/1987 be dismissed and the present respondent Nos.2 and 3 being accused of said Criminal Case be acquitted. The learned Magistrate passed the said order below the complaint on 27.05.1996 which is impugned in this appeal. 7. On going through the rojkam and record available with this Court, it clearly appears that complainant was, deliberately, negligent in tendering the evidence before the Court of Magistrate in the said Criminal Case. It also appears that right from 1988 to 1996, neither the complainant remained present nor tendered any evidence even after directed by the learned Magistrate. It is not the case that the complainant could not CR.A/904/1996 7/7 JUDGMENT remain present for couple of day on 27.05.1996 and, therefore, the complaint came to be dismissed. But it is the case wherein for considerably long period despite direction by the learned Magistrate, complainant failed to remain present before the concerned Magistrate. This is apparent from the record. In this view of the matter, the grounds taken in the appeal are not appealing to restore the complaint and set aside the acquittal of the respondent Nos.2 and 3. 8. In view of the above, this appeal stands dismissed. [ J. R. VORA,J. ] (vijay)