Gujarat High Court
State vs N on 26 February, 2010
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
Gujarat High Court Case Information System
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CR.A/972/2002 2/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 972 of 2002
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
STATE
OF GUJARAT - Appellant(s)
Versus
N
S RAMI - Opponent(s)
=========================================================
Appearance
:
MR
HL JANI ld. APP for Appellant(s) : 1,
NOTICE SERVED for
Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 26/02/2010
ORAL
JUDGMENT
1. The present appeal, under sec.378 of Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 24.7.2002 passed by the learned JMFC, Pardi in Criminal Case No. 682/1997, whereby, the accused has been acquitted of the charges under sec. 61(7) of the Factories Act, 1963, levelled against him.
2. Heard Mr. HL Jani learned APP for the appellant-State.
3. Mr HL Jani learned APP has vehemently argued that the matter was disposed of by the learned Magistrate in view of the observations made by the Hon'ble Supreme Court in the case of Common Cause , a registered Society, through its Director Vs. Union of India & Ors., reported in 1997(1) GLH 417 and Raj Deo Sharma vs. State of Bihar, reported in AIR 1999 SC 3524. Mr. HL Jani learned APP has further submitted that in the case of P. Ramchandra Rao vs. State of Karnataka, reported in AIR 2002 SC 1856, the Hon'ble Supreme Court has observed in para-37 as under:
37.
And lastly, it is clarified that this decision shall not be a ground for re-opening a case or proceeding by setting aside any such acquittal or discharge as is based on the authority of Common Cause and Raj Deo Sharma's cases and which has already achieved finality and re-open the trial against the accused therein.
4. Mr HL Jani learned APP has submitted that the above observation made by the Hon'ble Supreme Court, is squarely applicable to the facts of this case because prior to the date of this decision, that is, 16.4.2002, the said Criminal Case No. 682/1997 was not disposed of by the learned Magistrate, Pardi, but it was disposed of on 24.7.2002 by following the decisions of the Hon'ble Supreme Court in the cases of Common Cause and Raj Deo Sharma and therefore, the case may be remanded to the trial Court for a fresh consideration.
5. I have perused the decision of the Hon'ble Apex Court rendered in the case of P. Ramachandra Rao vs. State of Karnataka, reported in AIR 2002 SC 1856 and more particularly, para-37 of the said decision.
6. It appears from the order passed by the learned Magistrate that the learned Magistrate has committed an error in acquitting the respondent-accused because he was not aware about the decision of Hon'ble Supreme Court rendered in the case of P. Ramachandra Rao vs. State of Karnataka (supra), overruling the decision on the basis of which learned Magistrate recorded acquittal. but it cannot be said to be a judicial misconduct. There is some substance in the argument of Mr HL Jani learned APP and in view of the observation made by the Hon'ble Supreme Court in the case of P. Ramachandra Rao vs. State of Karnataka (supra) in para-37, this matter is required to be remanded to the trial Court for fresh hearing. It is pertinent to note that operation of the aforesaid decision in the case of P. Ramchandra Rao vs. State of Karnataka (supra) is made prospective. It is established that on the date on which the learned Magistrate recorded acquittal on the basis of aforesaid decision i.e. Common Cause" the decision rendered by the Apex Court in the case of P. Ramchandra Rao vs. State of Karnataka (supra) was holding the field and was squarely applicable. Under the circumstances, in view of para-37 of the decision of the Apex Court in the case of P. Ramchandra vs. State of Karnataka (supra) matter requires to be remanded back for fresh trial.
7. In the result, this appeal is partly allowed. The impugned judgment and order dated 24.7.2002 passed by the learned JMFC, Pardi in Criminal Case No. 682/1997 acquitting the respondent is hereby quashed and set aside. The case is remanded to the trial Court with a direction to decide the same on merits and in accordance with law. The learned Principal District Judge, Valsad is directed to notify the said Criminal Case before the concerned JMFC, Pardi with a direction to decide the said case within a period of six months from the date of receipt of the writ of this order. R & P, if received, be sent back to the trial Court, forthwith.
(Z.K. SAIYED, J.) mandora/ Top