(Per : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. Present application is for leave to prefer appeal against the judgment and order passed by the learned Special Judge in Special Criminal Case No.1 of 2007, whereby the accused has been acquitted for the offence under section 135(1)(a) of the Electricity Act.
2. We have considered the judgment and the reasons recorded by the learned Special Judge. We have heard learned counsel Mr. Pujara appearing for the applicant and we have considered the original record and proceedings.
3. It appears that as per the evidence on record, wires, which were alleged to be used for commission of crime, were not recovered nor were produced before the court. Further, at the time of incident, the workers were present, but their evidence was not led. Who was in occupation of the place also did not come on record. Under these circumstances, the learned Special Judge has observed that the prosecution has not been able to prove the case and has failed to prove the case for theft of electricity.
4. Mr.
Pujara, learned counsel appearing for the applicant further attempted to submit that two witnesses, whose statements were recorded by the police, were not examined by the Public Prosecutor and he submitted that therefore, the matter may be remanded and in the submission of the learned counsel, had those two witnesses deposed before the Court as per the statement made before the police, their evidence would have been beneficial to the prosecution.
5. We are afraid such aspects can be considered in an appeal against the order of acquittal as sought to be canvassed. As such, the prosecution has right to decide the manner in which the case is to be proved before the court. Further, it is not the matter where only Public Prosecutor conducted the matter, but in the present case, throughout the proceedings before the trial court after framing of the charge until the arguments were heard, the advocate of the electricity company did assist the Public Prosecutor. Not only that, but after the evidence was led, written arguments were also submitted by the advocate of the electricity company and original complainant Exh-29. Therefore, under these circumstances, if at any point of time, the original complainant had made any grievance by submitting the application before the trial court that particular witness may be summoned by invoking the proactive role of the court, it might stand on different footing and different consideration, but no such attempts were made at any point of time on behalf of the complainant, who was assisting the Public Prosecutor through its advocate. Under these circumstances, in an appeal against the order of acquittal, the matter could not be considered on the basis that the Public Prosecutor wrongly exercised the discretion for dropping of such witnesses or that such witnesses would support the case of the prosecution, if examined at all. Under these circumstances, if in absence of sufficient evidence, the learned Judge has found that the prosecution has failed to prove the case of theft of electricity energy against the accused, it cannot be said that any error is committed, which may call for interference by this court in exercise of the appellate powers against the order of acquittal.
6. Under these circumstances, leave does not deserve to be granted, therefore, not granted. Application disposed of accordingly.
(JAYANT PATEL, J.) (PARESH UPADHYAY, J.) shekhar* Top