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The State of Gujarat Vs. Lohana Dhirajlal Mohanlal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1973CriLJ82; (1972)GLR826
AppellantThe State of Gujarat
RespondentLohana Dhirajlal Mohanlal
Excerpt:
- - 2. the contention which is raised on behalf of the state is that the learned magistrate was not justified in stopping further proceedings of the case under section 249 of the criminal procedure code in this manner because the stoppage of the case as contemplated by this section of the code can be ordered only in exceptional circumstances justifying the same......it was contended that in this case the proper course for the learned magistrate was to adopt the normal procedure and to pass suitable orders only after recording evidence offered by the prosecution.3. i find that the learned magistrate was not justified in passing the order sought to be revised. according to section 249 of the code, in any case instituted otherwise than upon a complaint, the magistrate of first class may, for the reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment either of acquittal or conviction and. may thereupon release the accused. the section is undoubtedly worded in a wide language but the provisions of the section cannot be applied to a case which can be disposed of by adopting the normal procedure contemplated by.....
Judgment:
ORDER

T.U. Mehta, J.

1. The opponent in this revision application, one Lohana Dhirajlal Mohanlal. was sought to be prosecuted for the offence under Sections 66(1)(b) and 67(1)(c) of the Bombay Prohibition Act in Criminal Case No. 1285 of 1971 of the Court of J.M.F.C. Mongrol-Keshod at Keshod. The learned Magistrate found from the Police papers that along with the articles which were seized by the Police from the accused, there was one permit, which authorised the possession of one bottle of denatured spirit for domestic purpose. The spirit which was seized by the Police from the accused, was less than one bottle in quantity. In view of this, the learned Magistrate passed an order under Section 249 of the Criminal Procedure Code stopping further proceedings of the case and 'releasing the accused.' The relevant portion of the order of the learned Magistrate is as under:

In view of above position, no offence seems to have been committed by the accused and the Police ought not to have submitted charge-sheet to the Court against the accused. At any rate no offence is disclosed from the Police papers and this is a fit case in which proceedings of this case should be stopped under Section 249 of the Cr.P.C. and the accused should be released.

It is against this order that the State has preferred this revision. It is found that the learned Magistrate has passed the above order only on perusal of the Police Papers and before recording any plea of the accused or any other evidence, which would have been offered by the prosecution.

2. The contention which is raised on behalf of the State is that the learned Magistrate was not justified in stopping further proceedings of the case under Section 249 of the Criminal Procedure Code in this manner because the stoppage of the case as contemplated by this section of the Code can be ordered only in exceptional circumstances justifying the same. It was contended that in this case the proper course for the learned Magistrate was to adopt the normal procedure and to pass suitable orders only after recording evidence offered by the prosecution.

3. I find that the learned Magistrate was not justified in passing the order sought to be revised. According to Section 249 of the Code, in any case instituted otherwise than upon a complaint, the Magistrate of First Class may, for the reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment either of acquittal or conviction and. may thereupon release the accused. The section is undoubtedly worded in a wide language but the provisions of the section cannot be applied to a case which can be disposed of by adopting the normal procedure contemplated by the Code. In my view, this section is put in the scheme of the Code to meet with the contingencies wherein, either for the absence of an accused person or of an important witness of the prosecution, the Magistrate does not find it possible to dispose of the matter. In such circumstances it would be open to the Magistrate to stop. further proceedings of the case without passing any order as regards acquittal or conviction of the accused and to restart the proceedings when the cause, for which the proceedings are stopped, no more remain in force. It is therefore, under special or unusual circumstances, which make it difficult or impossible for the Magistrate to proceed with the case in the normal was that the provisions of Section 249 of the Code can be applied. But if it is found that the case can be decided on merits without any hindrance, in the normal manner as per procedure contemplated by the Code, there is no reason to take resort to the provisions of Section 249 of the Code.

4. Now so far as the facts of this case are concerned it is found that the learned Magistrate had not proceeded even to record the plea of the accused or to record any further evidence offered by the prosecution. It was only from the perusal of the Police papers that he came to know that the accused was holding a permit. This permit does not appear to have been produced in the evidence. Moreover, there is absolutely nothing in the record of the case to show or to suggest that there was any impediment in proceeding with the case in a normal and usual way under the procedure to be adopted in summons cases. I am told that even in the Police papers it is mentioned that it is not possible to read the name of the person in whose favour the permit was issued, because, the said name is erased. If this is so it is difficult to understand how the learned Magistrate concluded that the permit was issued in favour of the accused. Be that as it may. since I find that there were no special or unusual circumstances which would make it difficult or impossible for the learned Magistrate to proceed with the case, the provisions of Section 249 of the Code, could not halve been invoked in this case.

5. Under the circumstances. I allow this revision application, set aside the order passed by the learned Magistrate under Section 249 of the Criminal Procedure Code, stopping further proceedings of the case concerned and order him to reopen the proceedings of the case and proceed further according to law. The rule is made absolute accordingly.


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