1. By way of present revision application, filed under Section 397 read with Section 401 of the Code of Criminal Procedure, the applicant-State has prayed to quash and set aside the order dated 21st July, 2001 passed by the learned Judicial Magistrate First Class, Dhandhuka (Ahmedabad Rural) in Criminal Case No.95 of 1997.
2. Short facts of the case is that the original complainant- Factory Inspector had visited the factory of the respondent-accused on 01st November, 1996 and 03rd December, 1996 and during the inquiry he came to know about an accident in which one Hasinaben was seriously injured, however the respondent-accused had not informed the complainant about the incident within 24 hours. The complainant came to know about the accident only on the day of his visit. It is further the case of the prosecution that injured will not be able to work for further 48 years. Thus, the respondent- accused committed breach of Rule 103(4) of the Factories Rules, 1963 which is punishable under Section 92 of the Factories Act.
3. Heard Mr.H.L. Jani, learned Additional Public Prosecutor for the applicant-State and Mr.J.M. Buddhbhatti, learned counsel for the respondent-accused.
4. Mr.Jani, learned Additional Public Prosecutor for the applicant-State, states that the order of dismissing the complaint is contrary to law and evidence on record of the case. He has contended that the learned Judge has wrongly dismissed the application for want of prosecution. It was further contended by Mr.Jani that it was the duty of the learned Judge to issue bailable warrant and thereafter non-bailable warrant against the original complainant, who was not remaining present before the Court. The learned Judge has dismissed the application without properly following the prescribed procedure under the Code of Criminal Procedure and in a hasty manner, acquitted the respondent-accused. Mr.Jani has relied upon decision rendered in the case of State of Gujarat Vs Butasing Indrasing reported in 1990(1) GLR 26 and contended that in a hasty manner the learned Judge has dismissed the complaint. He, therefore, contended that this is a fit case to remand the matter to the learned Judge for fresh evidence.
5. As against this, Mr.Buddhbhatti, learned counsel for the respondent-accused, states that the original complainant remained totally negligent. He had not bothered to remain present before the Court and only due to his negligency, the learned Judge has dismissed the complaint. He, therefore, states that the present revision application is required to be rejected.
6. Heard learned counsel for the respective parties and also perused papers produced before me. If the original complainant was not remaining present during the course of the proceedings, it is the duty of the learned Judge first to issue bailable warrant, then non- bailable warrant and thereafter the learned Judge has to pass reasoned order after perusing the evidence produced on record. In the present case, the complainant, who is a public servant, was not appearing before the Court. It appears from the rojkam that summons was issued against the respondent- accused and on several occasions, respondent-accused had remained present but the original complainant was not remained present. It also appears from the papers that the learned Judge has never bothered to issue any summons to the original complainant or has not issued bailable or non-bailable warrant against the original complainant. It is the duty of the learned Judge to secure the presence of the original complainant, I have also gone through the decision relied upon by Mr.Jani in case of State of Gujarat Vs Butasing Indrasing and the same is completely relevant to the facts of the case.
7. In view of above, present revision application is partly allowed. The order dated 21st July, 2001 passed by the learned Judicial Magistrate First Class, Dhandhuka (Ahmedabad Rural) is hereby quashed and set aside and looking to the seriousness of the offence, the Criminal Case No.95 of 1997 is remanded to the learned Judicial Magistrate First Class, Dhandhuka (Ahmedabad Rural) for fresh consideration after affording proper opportunities of hearing to both the sides and the learned Judicial Magistrate First Class is directed to decide the same in accordance with law. The learned Judicial Magistrate First Class is directed to dispose of the said Criminal Case as early as possible, preferably within a period of one year, from the date of receipt of writ of the present order. Rule is discharged.
(Z. K. Saiyed, J) Anup