Gujarat High Court
Surat Municipal Corporation Thro ... vs Sheikh Kayum Khua on 28 April, 2025
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R/CR.A/733/2013 JUDGMENT DATED: 28/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 733 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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Approved for Reporting Yes No
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SURAT MUNICIPAL CORPORATION THRO SANITORY
INSPECTOR
Versus
SHEIKH KAYUM KHUA & ANR.
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Appearance:
MR MANAN MAHETA(6037) for the Appellant(s) No. 1
MR MEET THAKKER, APP for the Opponent(s)/Respondent(s) No.2
RULE SERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 28/04/2025
ORAL JUDGMENT
1. This appeal has been filed by the Appellant - Original
Complainant under Section 378 of the Code of Criminal Procedure,
1973 (hereinafter referred to as 'the Code') challenging the
impugned judgment and order of acquittal passed by the learned
Judicial Magistrate First Class, Municipal Court, Surat (hereinafter
be referred to as "learned Trial Court") in Municipal Case No. 2218
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of 2008 dated 27.04.2012 for the offence punishable under Sections
381, 382, 392(1)(A) of the Bombay Provincial Municipal
Corporation Act, 1949 (hereinafter be referred to as "the BPMC
Act").
1.1. The respondent No.1 is hereinafter referred to as 'the
accused' as he stood in the original case, for the sake of
convenience, clarity and brevity.
2. The relevant facts leading to filing of the present
appeal are as under:
2.1. It is the case of the complainant that the complainant is
a Sanitary Inspector of Surat Municipal Corporation and while he
was on round for checking on 10.02.2008, he found that the
accused, without having any licence from the concerned authority,
was doing an activity of selling goat meat in the open market, and
thereby, the accused was creating filth in public. On that basis, a
private complaint was filed before the learned Trial Court, Surat
on 06.06.2008.
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2.2. After considering the complaint, the learned Trial
Court issued process under section 204 of Cr.P.C. against accused
and on appearance of the accused, he was provided the papers
under section 207 of Cr.P.C and the plea of the accused was
recorded, wherein, the accused denied all the contents of the
complaint and the entire evidence provided by the complainant
was taken on record. To substantiate the charge, the prosecution
has examined 02 witnesses at Exh.9 and Exh.15 and has also
produced 04 documentary evidences.
2.3. After the closing pursis was submitted by the learned
APP at Exh.16, the further statement of the accused under Section
313 of the Code was recorded. After hearing the arguments of the
learned APP and learned advocate for the accused and after
perusing the documents on record, the learned learned Trial
Court, by the impugned judgment and order, has acquitted the
accused.
3. Being aggrieved and dissatisfied with the impugned
judgment and order of acquittal passed by the learned Judicial
Magistrate First Class, Municipal Court, Surat, the appellant -
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Surat Municipal Corporation through Sanitary Inspector has filed
the present appeal mainly stating that the impugned order is
illegal and wrong in observing that there is contradiction between
the report and the complaint and the evidence is doubtful. The
impugned order is also bad in law as there is nothing wrong to
have sanction in a printed form as it itself does not reflect that the
sanction was mechanical or cyclostyle. The impugned order is
otherwise also contrary to facts, evidence and law of the matter
and the same is recorded in a very cursory and cavalier manner.
The impugned order suffers from perversity of finding and also
the same is null, void ab intio and non-est. That the impugned
order reflects non-application of mind by the learned Trial Court.
The impugned order is illogical, irrational and without rhyme and
reason and also contrary to settled principles of law and suffers
from infirmity and reflects manifest error of law and the
impugned order is dehors the statutory provisions.
4. Heard learned advocate Mr. Manan Mehta for the
Appellant - original Complainant and learned APP Mr. Meet
Thakkar for the respondent No.2- State. Though served, the
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respondent No.1 has not appeared either in person or through an
advocate. Perused the impugned judgment and order of acquittal
and have re-appreciated the entire evidence of the prosecution on
record of the case.
5. Learned advocate Mr. Manan Mehta for the appellant
has submitted that the learned Trial Court has disbelieved the
sanction, which was given by the Competent Officer to lodge a
prosecution. Though the sanction was produced before the learned
Trial Court; however, without assigning cogent reasons, the
learned Trial Court has completely overlooked that and observed
that the sanction granted by the Competent Authority is without
application of mind, as only two lines were mentioned in the
prescribed form, and therefore, it cannot be said that it is legal and
valid sanction given by the Competent Authority for institution of
the complaint against the accused, which is absolutely illegal and
arbitrary. The learned learned Trial Court has held that there is
inordinate delay in registering the complaint and there was no
explanation given by the complainant for this inordinate delay,
and therefore, the prosecution has failed to establish this fact, but,
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the observations made by the learned Trial Court, in this regard,
are erroneous and illegal. That, in fact, the learned Trial Court
ought to have given proper weightage to the material evidence
and the impugned judgment and order of acquittal is against the
facts of the case and the accused is required to be convicted for the
alleged offence.
6. Learned APP Mr. Meet Thakkar for the respondent -
State has has adopted the arguments of the learned advocate for
the appellant and has submitted that appropriate order may be
passed.
7. With regard to the scope of interference by the
Appellate Courts in acquittal appeals, in case of Babu
Sahebagouda Rudragoudar and others vs. State of Karnataka
reported in AIR 2024 SC 2252 the Hon'ble Apex Court has held as
under:-
"37. This Court in the case of Rajesh Prasad v. State of Bihar and
Another1 encapsulated the legal position covering the field after
considering various earlier judgments and held as below: -
"29. After referring to a catena of judgments, this Court culled
out the following general principles regarding the powers
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of the appellate court while dealing with an appeal
against an order of (2022) 3 SCC 471 acquittal in the
following words: (Chandrappa case [Chandrappa v. State
of Karnataka, (2007) 4 SCC 415]
"42. From the above decisions, in our considered view, the
following general principles regarding powers of the
appellate court while dealing with an appeal against an
order of acquittal emerge:
(1) An appellate Court has full power to review, reappreciate
and reconsider the evidence upon which the order of
acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation,
restriction or condition on exercise of such power and an
appellate Court on the evidence before it may reach its
own conclusion, both on questions of fact and of law;
(3) Various expressions, such as, 'substantial and compelling
reasons', 'good and sufficient grounds', 'very strong
circumstances', 'distorted conclusions', 'glaring mistakes',
etc. are not intended to curtail extensive powers of an
appellate Court in an appeal against acquittal. Such
phraseologies are more in the nature of 'flourishes of
language' to emphasize the reluctance of an appellate
Court to interfere with acquittal than to curtail the power
of the Court to review the evidence and to come to its
own conclusion.
(4) An appellate Court, however, must bear in mind that in
case of acquittal, there is double presumption in favour of
the accused. Firstly, the presumption of innocence
available to him under the fundamental principle of
criminal jurisprudence that every person shall be
presumed to be innocent unless he is proved guilty by a
competent court of law. Secondly, the accused having
secured his acquittal, the presumption of his innocence is
further reinforced, reaffirmed and strengthened by the
learned Trial Court.
(5) If two reasonable conclusions are possible on the basis of
the evidence on record, the appellate court should not
disturb the finding of acquittal recorded by the learned
Trial Court."
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38. Further, in the case of H.D. Sundara & Ors. v. State of Karnataka
this Court summarized the principles governing the exercise of
appellate jurisdiction while dealing with an appeal against
acquittal under Section 378 of CrPC as follows: -
"8.1. The acquittal of the accused further strengthens the
presumption of innocence;
8.2. The appellate court, while hearing an appeal against
acquittal, is entitled to reappreciate the oral and
documentary evidence;
8.3. The appellate court, while deciding an appeal against
acquittal, after reappreciating the evidence, is required to
consider whether the view taken by the learned Trial
Court is a possible view which could have been taken on
the basis of the evidence on record;
8.4. If the view taken is a possible view, the appellate court
cannot overturn the order of acquittal on the ground that
another view was also possible; and
8.5. The appellate court can interfere with the order of
acquittal only if it comes to a finding that the only
conclusion which can be recorded on the basis of the
evidence on record was that the guilt of the accused was
proved beyond a reasonable doubt and no other
conclusion was possible."
39. Thus, it is beyond the pale of doubt that the scope of
interference by an appellate Court for reversing the judgment of
acquittal recorded by the learned Trial Court in favour of the
accused has to be exercised within the four corners of the
following principles:-
"(a) That the judgment of acquittal suffers from patent
perversity;
(b) That the same is based on a misreading/omission to
consider material evidence on record;
(c) That no two reasonable views are possible and only the
view consistent with the guilt of the accused is possible
from the evidence available on record.
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40. The appellate Court, in order to interfere with the judgment of
acquittal would have to record pertinent findings on the above
factors if it is inclined to reverse the judgment of acquittal
rendered by the learned Trial Court."
7.1. The Apex Court in yet another recent decision in case
of Bhupatbhai Bachubhai Chavda and Anr. Vs. State of Gujarat
in Criminal Appeal No.334 of 2019, has held as under:-
"6. It is true that while deciding an appeal against acquittal, the
Appellate Court has to re-appreciate the evidence. After re-
appreciating the evidence, the first question that needs to be
answered by the Appellate Court is whether the view taken by
the learned Trial Court was a plausible view that could have
been taken based on evidence on record. Perusal of the
impugned judgment of the High court shows that this question
has not been adverted to Appellate Court can interfere with the
order of acquittal only if it is satisfied after re-appreciating the
evidence that the only possible conclusion was that the guilt of
the accused had been established beyond a reasonable doubt.
The Appellate Court cannot overturn order of acquittal only on
the ground that another view is possible. In other words, the
judgment of acquittal must be found to be perverse. Unless the
Appellate Court records such a finding, no interference can be
made with the order of acquittal................"
8. It is a settled principle of law that in an appeal against
acquittal, the Appellate Court is circumscribed by limitation that
no interference has to be made in the order of acquittal unless after
appreciation of the evidence produced before the learned learned
Trial Court, it appears that there are some manifest illegality or
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perversity which could not have been possibly arrived at by the
Court. It is also a settled principle that there is no embargo on the
Appellate Court to review the evidence but, generally the order of
acquittal shall not be interfered with as the presumption of
innocence of the accused is further strengthened by the order of
acquittal. The golden thread which runs through the web of
administration of justice in criminal cases is that if two views are
possible on the evidence adduced in the case of the prosecution i.e.
(i) guilt of the accused and (ii) his innocence, the view, which is in
favour of the accused, should be adopted, and if the learned Trial
Court has taken the view in favour of the accused, the Appellate
Court should not disturb the findings of the acquittal. The
Appellate Court can interfere with the judgment and order of
acquittal only when there are compelling and substantial reasons
and the order is clearly unreasonable and where the Appellate
Court comes to conclusion that based on the evidence, the
conviction is a must.
9. In view of the above settled principles of law in
acquittal appeal, considering the evidence from the record, it
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transpires that the complaint was filed against the accused under
the BPMC Act and the prosecution has examined the Sanitary
Inspector of Surat Municipal Corporation to establish that the
sanction was given to lodge the prosecution against accused by the
Commissioner of Health Department and there was delay in filing
the complaint but, the delay occurred in filing the complaint has
not been explained. Further, no details are mentioned in the
prescribed form and it transpires that the authority has not applied
its mind while granting sanction for the alleged offence. The
prosecution has also examined a witness at Exh.15 and from his
deposition also, no material is culled out to support the case of the
prosecution. The raid was carried out in the open market and
independent witnesses were available; however, the statements of
independent witnesses were not recorded and the prosecution has
not examined any independent witness. Even, the statements of
the customers, who were present at that point of time, were not
recorded. The sanction itself creates a doubt as the same is not in
the prescribed form and no application of mind was found in the
report and in the considered opinion of this Court, the learned
Trial Court was justified in acquitting the accused.
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10. The learned Trial Court has observed that in absence of
any cogent and material evidence and in the absence of any
panchnama prepared in the presence of independent witnesses
and absence of muddamal seized and / or any evidence in the
nature that the said meat is hazardous to the health of the public at
large and creating any pollution, the learned Trial Court has
acquitted the accused and under such circumstances, this Court is
of the view that the learned Trial Court has not committed any
illegality or any perversity while recording the findings.
11. It is settled by the Apex Court in a catena of judgments
that while exercising the jurisdiction under Section 378 of the
Cr.P.C., the Appellate Court can re-appreciate, review and
examine the evidence recorded by the learned Trial Court and
after examining the record of the learned Trial Court, if the
Appellate Court finds that there is illegality or perversity in the
judgment, the Appellate Court can exercise jurisdiction under
Section 378 of the Cr.P.C and set aside the impugned order.
12. Considering all these aspects and considering the ratio
laid down by the Apex Court in cases of Babu Sahebagouda
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Rudragoudar (Supra) and Bhupatbhai Bachubhai Chavda
(Supra), and in a series of judgments in case of acquittal that, if
two reasonable conclusions are possible on the basis of the
evidence on record, the appellate court should not disturb the
finding of acquittal recorded by the learned Trial Court. The Apex
Court has enunciated that while exercising the Appeal under
Section 378 of the Cr.P.C. against the order of acquittal, though
there are two views possible, the view taken by the learned Trial
Court, may not be disturbed unless and until there is any
perversity or any irregularity or any illegality found from the
judgment and order of the learned Trial Court.
13. In view of the above, the learned learned Trial Court
has appreciated the entire evidence in proper perspective and
there does not appear to be any infirmity and illegality in the
impugned judgment and order of acquittal. The learned learned
Trial Court has appreciated all the evidence and this Court is of
the considered opinion that the learned learned Trial Court was
completely justified in acquitting the accused of the charges
leveled against them. The findings recorded by the learned learned
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Trial Court are absolutely just and proper and no illegality or
infirmity has been committed by the learned learned Trial Court
and this Court is in complete agreement with the findings,
ultimate conclusion and the resultant order of acquittal recorded
by the learned learned Trial Court. This Court finds no reason to
interfere with the impugned judgment and order and the present
appeal is devoid of merits and resultantly, the same is dismissed.
14. The impugned judgment and order of acquittal passed
by the learned Judicial Magistrate First Class, Municipal Court,
Surat in Municipal Case No. 2218 of 2008 dated 27.04.2012 is
hereby confirmed.
15. Record and Proceedings, if any, be sent back to the
concerned learned Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
F.S.KAZI
