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The State of Gujarat Vs. Bharwad Popat Zina and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1970CriLJ919; (1970)GLR426
AppellantThe State of Gujarat
RespondentBharwad Popat Zina and anr.
Cases ReferredQueen Empress v. Chenchayya
Excerpt:
- - chenchayya (1900) ilr 23 mad 626. in the latter case, which was decided by a division bench of the madras high court, the facts were that a complaint was made to the police and the latter caused charges to be preferred under sections 143 and 504 of the indian penal code against certain accused and the person who had complained to the police subsequently filed a petition praying the second class magistrate to withdraw the charges under section 248 of the code of criminal procedure and the learned magistrate permitted the withdrawal and directed the accused to be at liberty. the division bench took the view that the order was bad, there being no 'complaint' in the case and that consequently the magistrate in purporting to act under section 248 had exceeded his powers......learned judicial magistrate, first class, dasada, in criminal case no. 413 of 1966 allowing one karsan parmabhai who had moved the police, which had filed a complaint under sections 447 and 427 of the indian penal code and sections 161 and 162 of the gujarat panchayats act, 1961 (gujarat act vi of 1962) whereby the case against the accused under the latter counts was allowed to be withdrawn. (sic) the learned magistrate took cognizance of the case upon the report of the police station officer, dasada, who charge-sheeted the two respondents herein before him to stand their trial for the said offences. it appears that before the learned judicial magistrate, karsan parmabhai, who was the aggrieved party and at whose instance the police had moved the learned magistrate to take cognizance.....
Judgment:

M.U. Shah, J.

1. This is an appeal filed by the State against the order passed by the learned Judicial Magistrate, First Class, Dasada, in Criminal Case No. 413 of 1966 allowing one Karsan Parmabhai who had moved the police, which had filed a complaint under Sections 447 and 427 of the Indian Penal Code and Sections 161 and 162 of the Gujarat Panchayats Act, 1961 (Gujarat Act VI of 1962) whereby the case against the accused under the latter counts was allowed to be withdrawn. (Sic) The learned Magistrate took cognizance of the case upon the report of the Police Station Officer, Dasada, who charge-sheeted the two respondents herein before him to stand their trial for the said offences. It appears that before the learned Judicial Magistrate, Karsan Parmabhai, who was the aggrieved party and at whose instance the police had moved the learned Magistrate to take cognizance of the case, filed an application stating that the parties to the complaint, viz., Karsan Parmabhai and the accused persons were not willing to proceed with the case and, therefore, the complaint may be permitted to be withdrawn. The learned Police Prosecutor does not appear to have been a party to this motion. Below the said application, the learned Judicial Magistrate has passed the following order : 'Parties have compounded so far as Sections 447 and 427, Indian Penal Code. I, therefore, acquit the accused under Section 345 (1), Criminal Procedure Code. The complainant also withdraws charges under Sections 161 and 162, Gujarat Panchayats Act. I allow withdrawal and acquit the accused under Section 248, Criminal Procedure Code.'

Now, the aforesaid order was passed upon the application of Karsan Parmabhai who had lodged the information before the police which made the necessary investigation and charge-sheeted the accused persons amongst others in respect of the charges under Sections 447 and 427 of the Indian Penal Code and the learned Magistrate has given permission to the compounding of the said offences. That part of the order is not in challenge before me. But, what is urged by Mr. Vaidya, learned Assistant Government Pleader appearing for the State, is that the learned. Judicial Magistrate was in error in allowing Karsan Parmabhai to withdraw the case under Sections 161 and 162 of the Gujarat Gram Panchayats Act, 1961 (Gujarat Act VI of 1962).

2. Now, it was the police and not Karsan Parmabhai upon whose report the learned Magistrate had taken cognizance of the offences in question. Karsan Parmabhai had only lodged the information before the Police Station Officer, who investigated the matter and charge-sheeted the accused before the learned Magistrate. Karsan Parmabhai was not, therefore, the person who made the 'complaint' within the meaning of the term as defined in Section 4 (1) (h) of the Code of Criminal Procedure. 1898, and there was no 'complaint' as such to be dealt with under Section 248 of the Code of Criminal Procedure. A complainant in a summons case may apply for permission to withdraw his complaint and the said section can have application only when the Magistrate has taken cognizance of a case upon a complaint preferred to him by the person who seeks to withdraw the com-plaint. In the case before me, the complainant was the State, as also appears from the title cause of the application for withdrawal made by Karsan Parmabhai himself. Karsan Parmabhai could not be said to be a complainant filing a 'complaint' within the meaning of the term as defined in Clause (h) of Section 4 (1) of the Code of Criminal Procedure. The learned Judicial Magistrate was, therefore, wrong in granting the permission to withdraw the charges and he should have allowed the case under Sections 161 and 162 of the Gujarat Panchayats Act to proceed notwithstanding the compounding of the case under Sections 447 and 427 of the Indian Penal Code. In this view, I am supported by the decision in Emperor v. Elias Arz Muhammad AIR 1940 Sind 112, and that in Queen Empress v. Chenchayya (1900) ILR 23 Mad 626. In the latter case, which was decided by a Division Bench of the Madras High Court, the facts were that a complaint was made to the police and the latter caused charges to be preferred under Sections 143 and 504 of the Indian Penal Code against certain accused and the person who had complained to the police subsequently filed a petition praying the Second Class Magistrate to withdraw the charges under Section 248 of the Code of Criminal Procedure and the learned Magistrate permitted the withdrawal and directed the accused to be at liberty. The Division Bench took the view that the order was bad, there being no 'complaint' in the case and that consequently the Magistrate in purporting to act under Section 248 had exceeded his powers. In the instant case also, there was no 'complaint' because it is clear from the record that the Magistrate took cognizance of the case upon the police report. In my opinion, therefore, the learned Magistrate had exceeded his powers in allowing the withdrawal of the charges under the Gujarat Gram Panchayats Act. I must, therefore, quash the order of the learned Judicial Magistrate so far as it relates to the order of acquittal passed under Section 248 of the Code of Criminal Procedure acquitting the accused of the charges under Sections 161 and 162 of the Gujarat Panchayats Act, 1961 (Gujarat Act VI of 1962). Appeal is allowed and the case is remanded to the Court of the Judicial Magistrate, Dasada, for trial and disposal according to law under those two counts. Orders accordingly.


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