[1.0] Present Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") has been preferred by the applicant herein original accused to quash and set aside the impugned judgment and order dated 30.06.2008 passed by the learned Sessions Judge, Panchmahals, at Godhra in Criminal Appeal No.5 of 2007 by which the learned Appellate Court has allowed the said Appeal preferred by the original complainant State of Gujarat and has quashed and set aside the judgment and order of acquittal passed by the learned JMFC, Godhra in Criminal Case No.3081/2004 and consequently convicting the applicant for the offence under Section 145(2) of the Bombay Police Act, 1951 (hereinafter referred to as "BP Act") and to undergo the sentence till rising of the Court and imposing the fine of Rs.1500/ and in default to undergo 15 days SI. [2.0] That the applicant herein original accused was at the relevant time serving as Head Constable in Police Department at Police Headquarters, Godhra. He was initially on leave for two days prior to 19.06.2003. However, thereafter, remained unauthorizedly absent for a long period between 19.06.2003 to 28.05.2004 without submitting any leave report and/or without getting the leave sanctioned and even without informing the department and despite number of notices served upon the applicant to resume the duty failing which he shall be liable for the prosecution, the applicant did not resume the duty and remained unauthorizedly absent for the aforesaid period. Therefore, the proceedings came to be initiated against the applicant for the offence under Section 145(2) of the BP Act and the applicant came to be chargesheeted and the case was numbered as Criminal Case No.3081/2004. To prove the case against the applicant, the prosecution examined number of witnesses and also produced number of documentary evidences inclusive of the notices, which have been served upon the applicant, produced at mark A/1 and Exhs.15 & 16 and prosecution also examined the concerned police officers who served the aforesaid notices upon the applicant at Exhs.18, 19 and 20. Further Statement of the accused was recorded under Section 313 of the CrPC and he denied the charge leveled against him. It was the case on behalf of the applicant that as he was sick and bedridden and his mental condition was not good, he could not resume the duty. He produced two certificates mark A/2 alleged to have been issued by the Civil Surgeon, Godhra dated 11.11.2005 and mark A/3 the certificate issued by a private doctor – Dr. Sarvar Ali dated 22.11.2005. However, the said certificates were not exhibited as the same were not proved by the applicant. It was the case on behalf of the applicant that before prosecuting him for the offence under Section 145(2) of the BP Act, there was no sanction obtained from the higher authority and therefore, it was requested to acquit him. That the learned Magistrate accepted the case on behalf of the applicant and acquitted the applicant for the offence under Section 145(2) of the BP Act mainly on the ground that before prosecuting the applicant for the offence under Section 145(2) of the BP Act, the competent Authority has not granted the sanction to file the complaint and accepting the certificates issued by the Civil Surgeon, Godhra as well as the private doctor – Dr. Sarvar Ali and holding that as the applicant was suffering from hypertension and was under stress and under treatment and therefore, he could not resume the duty.
[2.1] Feeling aggrieved and dissatisfied with the judgment and order dated 27.09.2006 passed in Criminal Case No.3081/2004 acquitting the applicant from the offence under Section 145(2) of the BP Act, the original complainant – State of Gujarat preferred Criminal Appeal No.5 of 2007 before the learned Sessions Court, Panchmahals, at Godhra and the learned Sessions Judge by impugned judgment and order dated 30.06.2008 has allowed the said Appeal by quashing and setting aside the judgment and order of acquittal passed by the learned JMFC and consequently convicting the applicant for the offence under Section 145(2) of the BP Act.
[2.2] Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Sessions Judge, Panchmahals, at Godhra, the applicant herein – original accused has preferred the present Criminal Revision Application under Section 397 read with Section 401 of the CrPC.
[3.0] Shri Ashok Parmar, learned advocate appearing on behalf of the applicant has vehemently submitted that the learned Appellate Court has materially erred in upsetting the judgment and order of acquittal passed by the learned JMFC. It is submitted that when the learned Magistrate on appreciation of evidence and relying upon the medical certificates issued by the Civil Surgeon and the private doctor believed the case on behalf of the applicant that applicant was suffering from hypertension and other disease for which he could not resume the duty, the learned Appellate Court has materially erred in quashing and setting aside the order of acquittal passed by the learned JMFC and convicting the applicant for the offence punishable under Section 145(2) of the BP Act. It is submitted that as such there was no reason to disbelieve the certificate issued by the Civil Surgeon which was signed by him and therefore, the learned Appellate Court has materially erred in not relying upon and/or believing the certificates mark A/2 and A/3 and consequently has materially erred in convicting the applicant for the offence under Section 145(2) of the BP Act.
Making above submissions, it is requested to allow the present Criminal Revision Application and quash and set aside the impugned judgment and order passed by the learned Appellate Court and to restore the judgment and order of acquittal passed by the learned trial Court. No other submissions have been made.
[3.0] Present Criminal Revision Application is opposed by Shri L.B. Dabhi, learned Additional Public Prosecutor appearing on behalf of the State. It is submitted that the applicant remained unauthorizedly absent without getting the leave sanctioned and even without informing the department for the period between 19.06.2003 to 28.05.2004 and despite three notices which were served upon the applicant by which the applicant was called upon to resume the duty within two days, neither he resumed the duty nor even he send any leave report and/or even medical certificates and when even the certificates which were relied upon by the applicant were not even proved and consequently not exhibited, the learned Appellate Court has rightly quashed and set aside the order of acquittal passed by the learned JMFC and has rightly convicted the applicant for the offence under Section 145(2) of the BP Act. It is submitted that as such the applicant was serving in a Disciplinary force/Police Department and he had remained unauthorizedly absent for approximately one year without getting the leave sanctioned and without even intimating the department and/or even without submitting the leave application, therefore, it is requested to dismiss the present Criminal Revision Application.
[4.0] Heard learned advocates appearing on behalf of respective parties at length and gone through the judgment and order passed by both the Courts below and even the entire evidence from the Record & Proceedings received from the learned trial Court. At the outset it is required to be noted that the applicant was serving as a Police Head Constable in the Police Department and he remained unauthorizedly absent for the period between 19.06.2003 to 28.05.2004 i.e. approximately for 11 months. It has come on record that applicant was served with three notices by the Department between 19.06.2003 to 28.05.2004 by which the applicant was directed to resume the duty within two days failing which he will face the prosecution and/or the consequences, still he did not resumed the duty. Despite the service of notices the applicant neither resume the duty nor even send any leave report and/or even medical certificates and remained unauthorizedly absent for the aforesaid period. It appears from the judgment and order passed by the learned JMFC acquitting the applicant that the learned trial Court acquitted the applicant on two grounds. Firstly, on the ground that before initiating any proceedings against the applicant for the offence under Section 145(2) of the BP Act, there is no sanction by the higher Authority and secondly relying upon the medical certificates produced at mark A/2 and A/3 which were never proved and exhibited. The learned Appellate Court has set aside the judgment and order passed by the learned trial Court acquitting the applicant for the offence under Section 145(2) of the BP Act by observing that as such the applicant earlier submitted the application Exh.6 raising the ground with respect to the sanction which was withdrawn by him and which was not pressed and also on the ground that there is no such requirement under the law to get the sanction by the higher Authority before launching the prosecution under Section 145(2) of the BP Act and also on the ground that the learned Magistrate has materially erred in relying upon the documents which were never proved and exhibited.
[4.1] Considering the aforesaid it cannot be said that the learned Appellate Court has committed any error and/or illegality in quashing and setting aside the judgment and order of acquittal passed by the learned trial Court and consequently convicting the applicant for offence under Section 145(2) of the BP Act. As stated herein above the applicant relied upon two medical certificates mark A/2 and A/3, one alleged to have been signed by the Civil Surgeon, Godhra and another by private doctor – Dr. Sarvar Ali. It is required to be noted that the applicant has not proved both the aforesaid documents. It is also required to be noted that both the aforesaid medical certificates which were relied upon by the applicant are not exhibited. Under the circumstances, no reliance could have been placed by the learned Magistrate upon the medical certificates which were neither proved nor exhibited. It is also required to be noted that even both the certificates are dated 11.11.2005 and 22.11.2005 i.e. much after the proceedings were initiated. Considering the aforesaid facts and circumstances, no illegality has been committed by the learned Appellate Court in convicting the applicant for the offence under Section 145(2) of the BP Act which calls for interference of this Court in exercise of powers under Section 397 read with Section 401 of the CrPC. The finding arrived at by the learned Appellate Court cannot be said to be perverse and/or contrary to the evidence on record which calls for interference of this Court in exercise of revisional jurisdiction.
[5.0] In view of the above and for the reasons stated above, there is no substance in the present Criminal Revision Application which deserves to be dismissed and is, accordingly, dismissed. Rule is discharged.
Sd/ (M.R. Shah, J.) menon