CR.A/53/1989 of STATE OF GUJARAT Vs SAMA JUNAS MAMAD MIYAJI on 24 November 1995

ORAL JUDGMENT:

The respondents came to be acquitted by the then learnedJudicial Magistrate, (First Class) at Khavada, on 28-11-1988 bydelivering judgment in Summary Case No. 52 of 1986, andtherefore the present appeal is before this Court by the State.

2. The case of the prosecution briefly stated is that therespondents, the Indian citizens, are the residents of NanaDinara in the District-Kuchchh. As alleged by the prosecution on2nd January 1985 at 15.00 hours riding over the camel,respondents entered into the border of Pakistan without anypassport or obtaining any other document in his favour for thepurpose of smuggling. After they came back they were arrested,as it was found that they had committed the offence punishableunder Sections 3 and 12 of the Indian Passport Act read with Rule3.6 of the Entry Into India Passport Rules, 1950. A complaintwas then registered by the police officer at Khavada police station. At the conclusion of the enquiry in that connectionrespondents came to be charge-sheeted before the Court of thelearned Chief Judicial Magistrate at Bhuj who assigned the matterto the Judicial Magistrate at Khavada for hearing and disposal inaccordance with law. The learned Magistrate then recorded theevidence and found that the prosecution had failed to establishthe charge beyond reasonable doubt and therefore acquittedrespondents. It is against that order the present appeal isfiled before this Court.

3. At the time of hearing, though respondents were served noone appeared on their behalf. I therefore heard Mr. Mehta, thelearned Addl. P.P. representing the appellant State. Hesubmitted that learned Magistrate was not at all right inacquitting the respondents. Mr. Mehta laboured much to convinceme so as to upset the findings of the learned Magistrate, butafter going through the record carefully, I do not find anyreason to accept the submission made by Mr. Mehta, the learnedA.P.P.

4. In this case, the prosecution could examine only onewitness, namely Hasam Sama. He has not supported theprosecution. According to him, respondents had not gone toPakistan. He has been declared a hostile witness. Butthereafter unfortunately no further evidence could be led by theprosecution so as to prove the charge. In view of the matternaturally for the learned Judicial Magistrate there was no optionleft but to acquit respondents. The order of acquittal in theabsence of necessary evidence calls for no interference and thesame is required to be maintained.

5. Faced with such situation, the learned A.P.P., submitsthat the lower Court ought to have adopted the coercive measureso as to secure the presence of other witnesses. When that wasnot done, instead of maintaining the order of acquittal, I mayrefer the matter back for retrial.

In support of such submission, Mr. Mehta relied upon thedecision in the case of Gujarat Agro Industries vs. State ofGujarat & Anr.,- 21(2) G.L.R. 480 wherein it is held:-

"It was the duty of the Magistrate to have issued the process to procure the presence of the witnesses who were officers of the Corporation, and he should have also take steps, if need be, to issue further rigorous process to obtain their presence. In the present cause, the Magistrate has disposed of the matter by acquitting the accused, without taking a recourse to the provisions of the Code of Criminal Procedure for procuring the presence of the witnesses. He seems to have made a short-cut of the matter by acquitting the accused only on the ground that the witnesses were not produced by the prosecution."

My attention was also drawn to another decision of this Courtrendered in the case of State of Gujarat vs. Lohana PrakashDayalji & Anr. [1994(1)] XXXV(1) G.L.R. 112, wherein pointingout the duty of Public Prosecutor, it is further observed :

"It is quite true that for whatever reason the prosecution has not examined the witnesses. But then having regard to the gravity of the alleged offences, the learned Magistrate should not have felt helpless in securing the presence of the witnesses before the Court in the public interest.It also appears from the record that the learned P.P. in-charge of the matter had submitted an application dated 2-2-1991 requesting the learned Magistrate to issue summons/warrant for examination of the witnesses, which unfortunately came to be rejected. Under such circumstances, on the one hand not to issue summons/warrant for the purpose of examining the witnesses and on the other hand to say that despite the reasonable opportunity being given, the prosecution has not examined the witnesses, is not in good taste."

With his usual candour, learned A.P.P., also pointed out thedecision in the case of The State of Gujarat vs. RamaBahabhai Verchiram, 1984 Cri.L.R. (Guj.) 98, wherein it is heldthat when neither complainant nor witnesses are present, thecourt is not bound to adjourn the case, it will be justified inpassing the order discharging the accused as it is for theprosecution to proceed with the complaint diligently. If theprosecution fails to keep the witnesses present, the court is notbound to grant adjournment.

6. By citing all the three decisions, Mr. Mehta, learnedA.P.P. was, as I could see, in dilemma. The first two decisionsare not in conflict with the last one cited. On the contrary,first two decisions are explorative to the gist, and help indiscerning the law and its application to the given set of facts.There cannot be any reason for disagreement to the laudableprinciple enunciated in the first two decisions cited. The casecannot be hurriedly heard or throttled half way and brought to anend being obsessed with disposal mania; after all justice is theparamount consideration and no accused because of inaction,negligence, secret plot, lapse, deviation, foxiness, dishonesty,mischief, device or indolence and the like on the part of eitherof the parties or concerned agency, should be allowed to goscotfree or unpunished for want of evidence of the concernedwitnesses. Hence, coercive measures must be resorted to and

presence of the witness can be secured for just adjudication sothat the law, courts of law and administration of justice are notpooh-poohed and turned into bogle leading to dejection, andmockery. But the rule is not immitigable. The courts candeviate from such rule provided, assigning reasons in writing,they find that there is no reason to doubt the bonafides, andfind fault with the party or his agent/agency on any of theaforesaid grounds; and further materials on record show thatefforts will be unproductive or meaningless rather than servinguseful purpose. Such is the law enunciated in the above referredthree decisions.

7. A perusal of the Rojnama of the lower Court's recordshows that several times the matter was adjourned; on fewoccasions owing to the absence of respondents, and on rest of theoccasions absence of the witnesses. To secure the presence ofwitnesses summons were often issued and police sincerely triedits best to effect the services, but witnesses were notavailable. It was submitted before me that whereabouts andpresent addresses of witnesses could not be procured as no onecould effectively assist the police. It is not the case of theprosecution that respondents were coming in the way whileeffecting the service. There is also nothing on record to showthat the learned APP was inert or had joined hands with the otherside. Mr. Mehta, learned APP could not unflinchingly say thatevidence of other witnesses, if brought on record in whateverform available in police statement, would certainly help theprosecution. In view of this peculiar aspect of the case, I donot see any justification to direct lower Court to resort to allcoercive measures available, in law, and so there is nojustification to remand the case for a fresh trial. Under thecircumstances, the order passed by the learned Judge below callsfor no interference. The appeal thus fails. In the result, theappeal is hereby dismissed and the order of acquittal passed bythe learned Magistrate below is maintained.

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