Madhya Pradesh High Court
Manoj Rawat vs State Of Madhya Pradesh on 29 August, 2005
Equivalent citations: 2005(4)MPHT438
ORDER Ajit Singh, J.
1. Heard on admission.
2. This revision, by the accused, is directed against the judgment dated 22-12-2004 passed in Criminal Appeal No. 111/2004 by the Sessions Judge, Panna, whereby he has remanded the case for retrial.
3. According to the prosecution case, on 22-9-2003 B.S. Jadaun (P.W. 5) Sub-Inspector of Police Station Kotwali, Panna, received an information that the applicant is involved in the act of gambling in front of his house. B.S. Jadaun (P.W. 5) went to the spot along with his staff and independent witnesses namely Rajesh Kumar Sahu (P.W. 1) and Mukesh Kumar Sahu (P.W. 2). The applicant was present there. B.S. Jadaun (P.W. 5) seized nine "satta" slips, in which different numbers were noted, one register, 13 copies, two calculators, a dot pen and cash of Rs. 14,300/-. The seizure memo is Ex. P-2. After investigation, B.S. Jadaun (P.W. 5) filed a charge sheet against the applicant for offence under Section 4A of the Public Gambling Act, 1867. The defence of the applicant was that he had been falsely implicated due to his property dispute with Mohan Pandey who was posted as Police Constable at Police Station Kotwali, District Panna.
4. The Trial Court, after appreciating the evidence on record, convicted the applicant under Section 4A of the Public Gambling Act, 1867 and sentence to rigorous imprisonment for four months and a fine of Rs. 500/-. The Trial Court held that the applicant could not explain the recovery of seized articles from his possession and to falsely implicate the police would not plant Rs. 14,300/- against him.
5. On appeal, the Appellate Court has remanded the case for retrial on the ground that the articles seized from the applicant were not brought before the Court during trial or shown to the witnesses in proof thereof and as such the seizure of those articles was not legal in the eyes of law in the absence of material exhibit of the articles. The Appellate Court relied upon the Division Bench decision of this Court rendered in the case of State of M.P. v. Krishna Kumar, (1997) 1 M.P. Weekly Note 203.
6. It is urged on behalf of the applicant that the prosecution had every opportunity to produce the articles during the trial before the Court and on having failed to do so it can not be allowed to fill up the lacuna. Reliance has been placed on the decision of the Supreme Court rendered in the case of Abinash Chandra Bose v. Bimal Krishna Sen and Anr., AIR 1963 SC 316.
7. Non production of the articles seized before the Court during trial for showing to the witnesses in proof thereof, in my considered opinion, is a technical lacuna particularly when the seizure memo of the articles, Ex. P-2, has been proved. Thus, to deny the opportunity to remove the formal defect would amount to abort a case against an alleged offender indulged in the act of gambling. It is to be noted that the police recovered cash of Rs. 14,300/- and nine "satta" slips from him.
8. In State of Gujarat v. Mohanlal, AIR 1987 SC 1321, it has been held by the Supreme Court that ends of justice are not satisfied only when the accused in a criminal case is acquitted. The Community acting through the State and the Public Prosecutor is also entitled to justice. The cause of the Community deserves equal treatment at the hands of the Court in the discharge of its judicial functions. The Community or the State is not a persona non-grata whose cause may be treated with disdain.
9. Recently, in the case of Zahira Habibullah Sheikh and Anr. v. State of Gujarat and Ors., AIR 2004 SC 3114, the Supreme Court has held that every endeavour should be made by the Trial Court to see that the trial is fair and it will not be correct to say that it is only the accused who must be fairly dealt with. According to the Supreme Court that would be turning Nelson's eyes to the needs of the Society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. The Supreme Court has further held that the Presiding Judge must not be a spectator and a mere recording machine but should be becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth and administer justice with fairness and impartiality both to the parties and to the community.
10. In view of the aforesaid, the Appellate Court, in my considered opinion, did not commit any illegality in remanding the case for retrial for the purposes of production of seized articles in the Court or showing them to witnesses in proof thereof.
11. The revision has no merit and is accordingly dismissed summarily. The records of the Courts below be sent back immediately for further proceedings. The applicant shall appear before the Trial Court on 26-9-2005.