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Abdullabhai Kasamali Bohara Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Revision Application Nos. 54, 55, 56 and 57 of 1957
Judge
Reported in(1957)59BOMLR1163
AppellantAbdullabhai Kasamali Bohara
RespondentThe State
DispositionApplication allowed
Excerpt:
.....of complaint six months after commission of offence, whether c2 valid.; section 79 of the indian mines act, 1952, purports to lay down a limitation for prosecutions under that act, and the words of the section do not allow of any exception to the limitation laid down under clauses (i), (ii) and (in) thereof.; if a complaint under this act is filed and then sought to be amended beyond six months from the date on which the offence is alleged to have been committed or from the date when the offence came to the knowledge of the inspector, the amendment cannot be deemed to relate back to the date of the filing of the original complaint, but must be judged as on the date of the amendment itself.; under section 79 of the indian mines act, after the lapse of the time provided therein, a..........the trying magistrate was incompetent to take cognizance of the complaint under section 79 of the indian mines act for the reason that it was filed beyond six months of the date on which the offence was alleged to have been committed or beyond six months from the date on which the alleged commission of the offence came to the knowledge of the inspector under sub-clausess (i) and (ii) of that section.5. the view, which the trying magistrate, as also the appellate court, took was that the amendment of the complaint would relate back to the date of the filing of the original complaint, and therefore, the complaint, as amended, was within time.6. section 79 of the indian mines act purports to lay down a limitation for prosecutions under that act, and the words of the section do not allow of.....
Judgment:

Kotval, J.

1. The order in this criminal revision shall also govern the disposal of Criminal Revisions Nos. 55, 56 and 57, all of 1957. These revisions are at the instance of one and the same person, one Abdulla Bhai, who was charged for various offences under Sections 73, 74(i)(c), 69 and 62 of the Indian Mines Act, (No. XXXV of 1952), and convicted in four separate cases summarily tried by the Magistrate, First Class, Bhandara.

2. In each of these cases, the complaint, as it was originally filed, was against Abdul Hussain M. Allabaxji of Nagpur along with two other persons named as accused in the case One of them was a contractor who has been acquitted on the ground that he had nothing to do with the management of the mine. The other, n servant of the applicant Abdulla Bhai, was convicted but has not moved this Court in revision.

3. The origrinal complaint filed on August 24, 1955, was against Abdul Hussain M. Allabaxji of Nagpur, but it was found that there was no individual of that name in existence and that that was really the name of a partnership firm of which the applicant, Abdulla Bhai, was a partner. After the discovery of the error, an amendment of the complaint was sought on behalf of the State on November 21, 1955. The Magistrate allowed the amendment and convicted the applicant in each of the four cases.

4. I am not here concerned with the merits of the convictions which have not-been challenged. But an objection has been taken that the trying Magistrate was incompetent to take cognizance of the complaint under Section 79 of the Indian Mines Act for the reason that it was filed beyond six months of the date on which the offence was alleged to have been committed or beyond six months from the date on which the alleged commission of the offence came to the knowledge of the Inspector under Sub-clausess (i) and (ii) of that section.

5. The view, which the trying Magistrate, as also the appellate Court, took was that the amendment of the complaint would relate back to the date of the filing of the original complaint, and therefore, the complaint, as amended, was within time.

6. Section 79 of the Indian Mines Act purports to lay down a limitation for prosecutions under that Act, and the words of the section do not allow of any exception to the limitations laid down under Clauses (i), (ii) and (in) thereof. No doubt, in civil proceedings, it has been the view that an amendment, if allowed, will date back from the date on which the original application or suit was filed, but so far as the criminal law is concerned, I do not see how that rule can prevail.

7. In the present case, the complaint was against a firm and the Magistrate found that it could not have been entertained at all for the reason that it was not against any individual. Therefore, there was nothing to amend, and if an application was put in stating that the complaint already filed should be proceeded with against another individual, such an application amounted to nothing more than filing a fresh complaint against the person named in the so-called amendment application. In my opinion, the view taken by the Courts below as to the provisions of Section 79 was erroneous. I hold that if a complaint is filed and then sought to be amended beyond six months from the date on which the offence is alleged to have been committed or from the date when the offence came to the knowledge of the Inspector, the amendment cannot be deemed to relate back to the date of the filing of the original complaint, but must be judged as on the date of the amendment itself. Under Section 79 of the Indian Mines Act after the lapse of the time provided therein, a valuable right accrues to the accused, viz. a right not to be prosecuted thereafter, find that right cannot be taken away by an amendment of the complaint.

8. Upon this view, the complaints against the applicant were barred under the provisions of Section 79 of the Indian Mines Act, and the convictions for that reason cannot be upheld. The convictions and sentences passed against the applicant are set aside in each case. The fine, if paid, shall be refunded.

9. The applications for revisions are allowed.


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