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2015 DIGILAW 1171 (GUJ)

Sadihusen Abdulkarim Shaikh v. State of Gujarat

2015-11-05

RAJESH H.SHUKLA

body2015
JUDGMENT Rajesh H. Shukla, J. 1. The present appeal is preferred under Section 378 of the Criminal Procedure Code, 1978 challenging the impugned order in Criminal Case No. 30951/1999 passed by the learned Chief Judicial Magistrate, Bharuch dated 01.11.1999 recording acquittal. 2. As it transpires from the record, the dispute is with regard to the premises between two brothers. 3. However when the matter was before this Court, sufficient time has been granted. On one hand, learned advocate, Shri Tirmizi has not remained present and whenever it is informed, it is stated that learned advocate, Shri Bhargav Hasurkar is appearing in the matter. Thereafter when the matter has been called out on different occasions, either there is a leave note or sick note of learned advocate, Shri Tirmizi and it was stated that learned advocate, Shri Hasurkar is appearing in the matter on behalf of learned advocate, Shri Tirmizi and some time may be granted. 4. Today, it is informed that, learned advocate, Shri Hasurkar has filed leave note and learned advocate, Shri Tirmizi has not remained present and even has not shown courtesy to inform the Court. 5. It is in this background, the Court is compelled to proceed with the matter as the attitude, which is reflected hereinabove is to say the least as unbecoming of an advocate or responsible advocate, who would show at-least some courtesy. 6. Learned advocate, Shri M.M. Saiyed appearing for the appellant-original complainant has referred to the papers and submitted that since it is a summary trial, it may be a detailed judgment and every evidence may not be discussed, however, the order passed by the trial court cannot be said to be as illegal and valid order as it is only a one line order without any reasons or justification. He pointedly referred to the impugned order. Learned advocate, Shri Saiyed referred to the judgment of the High Court of Kerala in case of Sankaran Unni Vassudevan Unni v. Rasheed & Anr. Reported in 1980 CRI.L.J. 304 and emphasized the observations, "Therefore disposing of the case and acquitting the accused by a one line order or judgment is illegal." Learned advocate, Shri Saiyed also referred to and relied upon the judgment of the Hon'ble Apex Court in case of Nitinbhai Saevatilal Shah & Anr. Reported in 1980 CRI.L.J. 304 and emphasized the observations, "Therefore disposing of the case and acquitting the accused by a one line order or judgment is illegal." Learned advocate, Shri Saiyed also referred to and relied upon the judgment of the Hon'ble Apex Court in case of Nitinbhai Saevatilal Shah & Anr. v. Manubhai Manjibhai Panchal & Ors., reported in (2011) 9 SCC 638 and submitted that as observed, in summary trial, there could be a denovo trial. He therefore submitted that the matter may be remanded back to the trial court. He has also submitted that there is another judgment of this High Court in case of Ramjibhai Haribhai Chaudhary v. State of Gujarat & Anr., reported in 2013 (1) GLH 300 and submitted that the matter could be remanded for denovo trial in accordance with law. 7. As it transpires from the record, the matter is hanging since 2006 before this Court and the order, which is impugned, does not reflect any reason or a proof with reference to the evidence justifying the reasons for recording acquittal or the conclusion arrived at. 8. A bare perusal of the provisions of Section 264 of the Criminal Procedure Code would make the position clear. It provides, "264. Judgment in cases tried summarily.--In every case tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding." 9. Thus the language of the statute clearly provides that even in summary trial, the Magistrate shall record the substance of the evidence and a judgment containing brief statement of the reasons for the finding (Emphasis Supplied). Admittedly it is not there. 10. It is well accepted that the reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at. Therefore, a useful reference can be made to the judgment of the Hon'ble Apex Court in case of Ran Singh & Anr. v. State of Haryana & Anr., reported in (2008) 4 SCC 70 , wherein it has been observed, "10. Even in respect of administrative orders Lord Denning M.R. in Breen v. Amalgamated Engineering Union (1971 (1) All E.R. 1148) observed "The giving of reasons is one of the fundamentals of good administration". v. State of Haryana & Anr., reported in (2008) 4 SCC 70 , wherein it has been observed, "10. Even in respect of administrative orders Lord Denning M.R. in Breen v. Amalgamated Engineering Union (1971 (1) All E.R. 1148) observed "The giving of reasons is one of the fundamentals of good administration". In Alexander Machinery (Dudley) Ltd. v. Crabtree (1974 LCR 120) it was observed: "Failure to give reasons amounts to denial of justice". Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at". Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The "inscrutable face of a sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance." 11. It is in this background, even if it is a summary triable, the impugned judgment and order cannot be sustained and deserves to be quashed and set aside. 12. In the circumstances, the present appeal stands allowed. The impugned judgment and order rendered in Criminal Case No. 30951/1999 passed by the learned Chief Judicial Magistrate, Bharuch dated 01.11.1999 is hereby quashed and set aside and the matter is remanded back to the trial court for denovo trial of Criminal Case No. 30951/1999 in accordance with law. It goes without saying that the trial court shall make an endeavour to dispose of the denovo trial as expeditiously as possible within a period of six months after providing an opportunity to both sides. Both sides are also directed to cooperate for speedy disposal of the aforesaid case.