JUDGMENT
A.N. Divecha, J.
1. The right of speedy trial is a fundamental right of the accused under Article 21 of the Constitution of India in view of the ruling of the Supreme Court in the case of Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar . Does the concept of speedy trial mean disposal of Criminal cases without giving an opportunity to the prosecution to bring the guilt home to the accused ? In the name of speedy trial for the accused, should the Courts suffer from such disposal mania as would occasion dispensation with, instead of dispensation of, justice ? This is what appears to have happened in the case represented by this appeal. The judgment and order of acquittal, rather the order of acquittal, passed by the learned Judicial Magistrate (First Class) of Court No. 3 at Surat on 13th April, 1983 in Summary Case No. 2084 of 1983 is under challenge in this appeal preferred by the State of Gujarat after obtaining the necessary leave for the purpose from this Court on 17th January, 1985.
2. The facts giving rise to this appeal are not many and not much in dispute. The respondents including the deceased respondent were charge-sheeted for the offences punishable under Sections 4 and 5 of the Bombay Prevention of Gambling Act, 1887 (the ‘Act’ for brief). It transpires from the record that the charge-sheet was submitted to the Judicial Magistrate (First Class) of Court No. 3 at Surat on 4th March, 1983. It was registered as Summary Case No. 2084 of 1983. The proceedings show that the plea of the accused was recorded on that very day after supply of copies of police papers to them. No accused pleaded guilty to the charge. The case was thereupon set down for recording of the prosecution evidence on 23rd March, 1983. The proceedings further show that on that day the prosecution witnesses were not present and the case was thereupon adjourned to 30th March, 1983. It appears that the prosecution witnesses did not remain present on that day either. The case was thereupon adjourned to 13th April, 1983. It appears that no prosecution witness was kept present on that day. The prosecution agency appears not to have made any attempt to seek the help of the Court to summon its witnesses or any of them even by using a coercive process. It appears that such lethargy on the part of the prosecution agency enraged the learned trial Magistrate. By his order passed on 13th April, 1983, the learned Judicial Magistrate (First Class) of Court No. 3 at Surat thereupon acquitted the accused of the charge levelled against them. Aggrieved thereby, the State of Gujarat has preferred this appeal before this Court after obtaining the necessary leave for the purpose on 17th January, 1985.
3. The impugned order of acquittal cannot be sustained in law for a moment in view of the two rulings of this Court in the ease of State of Gujarat v. Lalit Mohan reported in 1989 (2) XXX (2) GLR 952 and in the case of State of Gujarat v. Gulamnabi alias Fakir Mohmad and Anr. reported in 1990 (1) XXXI (1) GLR 60. In its ruling in the case of Lalit Mohan (supra), this Court has certainly emphasised that the purpose of criminal justice is to punish the offender and not merely disposal of cases and unwarranted acquittals of the accused. This Court has further held therein that under Section 350 of the Criminal Procedure Code, 1973 (the ‘Cr.P.C.’ for brief) the Court has a coercive power to compel the attendance of witnesses. In its ruling in the case of Gulamnabi alias Fakir Mohmad (supra) this Court has deprecated in clear terms the approach of the Court in lightly disposing of criminal cases and acquitting accused. It has been emphasised therein that Courts must do real justice. In para 10 thereof at page 66 this Court has emphasised that the Court should always act and attempt to do justice even if the prosecution was lethargic in keeping present and examining prosecution witnesses on the fixed date before the Court.
4. In view of these pronouncements of law by this Court, the impugned order of acquittal passed by the learned trial Magistrate cannot be sustained in law for a moment. The reason therefor is quite simple. As pointed out hereinabove, the charge-sheet was submitted on 4th March, 1983. On that very day the plea of the accused was recorded. The case was set down for recording the prosecution evidence on 23rd March, 1983 and then to 30th March, 1983 and lastly on 13th April, 1983. The prosecution appears to have remained lethargic in keeping its witnesses present for examining them before the Court on the fixed date. That by itself should not have prompted the learned trial Magistrate to have disposed of the case without giving the prosecution an opportunity to prove its case at trial. Such an approach on the part of the learned trial Magistrate would certainly reflect his undue obsession with the disposal mania. As indicated hereinabove, disposal of a case should result into dispensation of justice and not dispensation with it.
5. Ordinarily, once the impugned order of acquittal is branded as illegal and/or improper in view of what is narrated hereinabove, the normal course is to remand the matter to the trial Court for proceeding according to law from the stage the proceedings came to be terminated.
Shri Kapadia has however submitted that no purpose would be served by remanding the matter to the trial Court after passage of nearly 9 years from the date of the impugned order of acquittal under challenge in this appeal. He has further urged that the learned trial Magistrate in his impugned order has directed the manner in which the muddamal should be disposed of and that order does not appear to have been stayed. In that view of the matter, runs the submission of Shri Kapadia for the respondents, the exercise of remanding the matter back to the trial Court would be in futility. Relying on the ruling of the Supreme Court in the case of S. Gum and Ors. v. Grindlays Bank Ltd. , Shri Kapadia for the respondents has urged that the impugned order of acquittal, even if it is found improper, need not be interfered with or upset in this appeal.
6. It is true that nearly 9 years have rolled by since the date of the impugned order of acquittal passed by the learned trial Magistrate. In the course of these 9 years one accused has left this world. However, to maintain the order of acquittal on that ground would result in the mockery of justice. The Act is designed to curb gambling activities found prevalent in the State. Any offence punishable under the Act is an offence against the society. An offence under the Indian Penal Code, 1860 (the ‘I.P.C.’ for brief) is also by and large an offence against the society. But by such offence usually individuals are affected. The criminal law is meant by and large for enforcement of or for maintenance of the law and order in the society. Individuals are thereby prohibited from indulging in any criminal activities which would offend their counterpart in the society. But the statute like the Act is enacted with a view to curbing certain obnoxious activities which in the end would corrode the society. It would be in the interests of the society to see that offenders designed to the punished under the Act are not let off the hook on any conceivable pretext. If it is allowed to be done, such offenders would certainly laugh and scoff at the system of justice. 80 would educated and enlightened members of the society do. This cannot be permitted to happen in the name of passage of the long lapse of time during the pendency of this appeal in this Court.
7. It is true that the learned trial Magistrate has passed the order directing disposal of the muddamal in his impugned order of acquittal under challenge in this appeal. It is also true that no stay of, that order has been obtained from this Court while pressing this appeal for admission and hearing. Usually no disposal of muddamal is made during the period prescribed for preferring an appeal and if an appeal is preferred against the judgment and order in question. If the order of disposal of the muddamal is implemented, the accused would stand benefited. That however should not came in the way of the prosecution in attempting to bring the guilt home 10 accused on a fair trial.
8. The aforesaid ruling of the Supreme Court in the case of 5. Gum and Ors. (supra) is distinguishable on the ground that the offence involved therein was the one punishable mainly under Section 341 of the I.P.C. The maximum substantive sentence provided therein is imprisonment for one month. The nature of the offence is thus not considered very serious. The act constituting that offence may hurt an individual or individuals. In the present case, the accused were charged with the offences punishable under the Act. As aforesaid, the Act is brought on- the statute book with a view to curbing rampant gambling activities in the State. The human nature being what it is, unless some coercive measure is used, the gambling activities would remain rampant in the society. The avowed object of the Act cannot be allowed to be frustrated in the manner in which it is done by the learned trial Magistrate. I am therefore of the opinion that the aforesaid ruling of the Supreme Court in the case of S. Gum and Ors. (supra) is distinguishable on its own facts.
9. A reference deserves to be made to the ruling of this, Court in the case of Sureshchandra Chandulal Patni v. Natwarlal Keshavlal Patni and Anr. reported in 1992 (1) XXXIII (1) GLR 626. In that case the order of acquittal was quashed on the ground that the complaint of the complainant was found to have been injudiciously dismissed by the trial Court. The contention on behalf of the accused before the High Court that no purpose would be served in remanding the case after passage of some 7-8 years was negatived by observing “When the impugned order is illegal it has to be set aside and the obvious consequence would be to remand the case. It would be improper and illegal to acquit the accused without any trial.” Sitting as a single Judge, I am bound to follow this ruling of this Court. Even otherwise, I am in respectful agreement therewith.
10. In view of my aforesaid discussion, I am of the opinion that the impugned order of acquittal passed by the learned trial Magistrate deserves to be quashed and set aside.
In the result, this appeal is accepted. The impugned order of acquittal passed by the learned Judicial Magistrate (First Class) of Court No. 3 at Surat on 13th April, 1983 in Summary Case No. 2084 of 1983 is quashed and set aside. The matter is now ordered to be remanded to the trial Court for .its disposal according to law from the stage the proceedings same to be terminated after restoring it to file.