Nileshbhai Kantibhai Rajgor vs State Of Gujarat

                                                                                   NEUTRAL CITATION




     R/CR.A/2382/2022                                ORDER DATED: 29/08/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 2382 of 2022

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                          NILESHBHAI KANTIBHAI RAJGOR
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR.WASIM M PATHAN(6802) for the Appellant(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 2
MS VRUNDA SHAH ADDL. PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE

                                 Date : 29/08/2023

                                  ORAL ORDER

1. Heard Mr. Pathan, learned advocate for the appellant - original complainant.

2. This Court vide order dated 26.07.2023, had issued Notice for final disposal in the present appeal, which has been duly served upon the respondent No.2 - original accused. But the respondent No.2 has failed to appear and contest this appeal. Noticing the nature of issue involved, this Court has proceeded with the final adjudication of this appeal even in absence of original accused.

3. Learned advocate for the appellant has drawn attention of this Court to the impugned order dated 12.08.2022 passed by the learned Additional Judicial Magistrate First Class, Kalol, below Exhibit 1 in Criminal Case No.731 of 2020. The learned Magistrate by the said order, had proceeded to dismiss the complaint for non-

NEUTRAL CITATION R/CR.A/2382/2022 ORDER DATED: 29/08/2023 undefined prosecution in absence of learned advocate for the complainant as well as the complainant. It is submitted by the learned advocate on record for the complainant that though the original complaint relates to the year 2020, the summons issued by the learned trial Court was duly served and in fact, the accused had failed to appear before the trial Court. The deposition of the complainant has come on record in the form of affidavit on 09/10.12.2021 and thereafter, the matter was notified for cross-examination of the complainant on 11.02.2022. Since the accused had failed to appear before the trial Court, the Non-Bailable Warrant was issued upon the respondent - accused and he was produced before the learned Magistrate on 05.08.2023. On the next date of hearing, the matter was fixed for cross-examination of the complainant. It was the first date after the execution of the Non-Bailable Warrant and thereafter, the matter was fixed for cross-examination of the complainant. It is therefore, urged by the learned advocate that the learned Magistrate ought to have taken liberal approach before resorting to the provisions of Section 256 of the Cr.P.C., dismissing the complaint for non-prosecution. Learned advocate has placed reliance upon the judgment of this Court in the case of Narendrakumar Madanlal Sharma Vs. Babubhai Chaturbhai Khant reported in 2022(0) AIJEL-HC-244576 and has submitted that the learned Magistrate ought not to have taken technical approach. He has further submitted that in the similar set of fact, noticing the fact that the adjournments were sought for by both the parties, this Court had quashed and set aside the order of dismissal of the complaint under Section 256 of Cr.P.C. and had remanded the matter back to the trial Court to hear and decide afresh. He, therefore, urged this Court to restore the original complaint to its file by remanding the matter back to the Trial Page 2 of 5 Downloaded on : Sun Sep 17 02:55:53 IST 2023 NEUTRAL CITATION R/CR.A/2382/2022 ORDER DATED: 29/08/2023 undefined Court. He assured this Court that the original complainant shall appear before the trial Court as and when his presence is required.

4. Considering the submissions of the learned advocate for the appellant and having perused the impugned order passed by the learned trial Court, the learned Magistrate has proceeded to dismiss the complaint under Section 256 (1) of the Cr.P.C. noticing the absence of the complainant. The learned advocate on record for the appellant has placed on record the copy of the Rozkam. The R & P has been received by this Court. As pointed out by the learned advocate for the appellant, the affidavit of examination-in- chief has come on record on 06.12.2020. Thereafter, the matter was notified for cross-examination of the original complainant. Since the respondent - original accused has failed to appear before the Court for cross-examination, the complainant had moved an application seeking issuance of the summons / notice upon the respondent - accused and the permission was sought for to serve through RPAD. Such permission was granted by the learned Magistrate on 06.04.2021. Later on, for effecting the service of summons upon respondent - accused, direct service was also permitted by order dated 13.08.2021. As a last attempt, Non-Bailable Warrant came to be issued upon respondent - accused. Pursuant to the order dated 08.10.2021 passed by the learned Magistrate below Exhibit 23. The accused was presented before the learned Magistrate on 06.08.2022. The application for bail was moved by the respondent - accused. Learned Magistrate noticing the undertaking given by the accused, directed him to enlarge on bail by passing the order below Exhibit 25. The respondent - accused had also submitted the purshish on 06.08.2022, whereby he had declared before the Court that the Page 3 of 5 Downloaded on : Sun Sep 17 02:55:53 IST 2023 NEUTRAL CITATION R/CR.A/2382/2022 ORDER DATED: 29/08/2023 undefined respondent - accused would settle the matter with the complainant. On the next date of hearing i.e. on 12.08.2022, the respondent - accused had moved application Exhibit 26 before the Trial Court requesting to dismiss the complaint by submitting before the learned Magistrate that the complainant is not interested in pursuing the proceedings as neither the complainant nor his advocate appeared. Learned advocate considering the averments made in the application proceeded to pass the order below Exhibit 1, thereby dismissing the complaint under Section 256 of the Cr.P.C. Considering the aforesaid dates, which has emerged on record, it cannot be said that the complainant was trying to delay or linger the proceedings before the trial Court. The adjournment which has taken place after the affidavit of cross- examination being presented on record are mainly attributed towards non-appearance of the original accused. In fact, the declaration was made by the respondent - accused before the Trial Court to take time for settlement with the complainant, whereas on the next date of hearing, the learned Magistrate without inquiring into aforesaid aspect, had proceeded to accept the averments made in the application given by the accused vide Exhibit 23. In the opinion of this Court, the aforesaid approach of the learned Magistrate is not proper. The learned Magistrate has in a hasty manner proceeded with the termination of the complaint on technical ground. Unfortunately, the same has resulted into technical acquittal of the respondent - accused without there being any adjudication on merits of the case, which is de hors the settled principle of criminal jurisprudence. It was incumbent upon learned Magistrate to decide the case on merits rather to dispose the case on technical ground. Hence, this appeal succeeds. The order below Exhibit 1 dismissing the complaint under Section 256 of the Page 4 of 5 Downloaded on : Sun Sep 17 02:55:53 IST 2023 NEUTRAL CITATION R/CR.A/2382/2022 ORDER DATED: 29/08/2023 undefined Cr.P.C. is hereby quashed and set aside. It is further directed that the matter is remanded back to the Trial Court and the original complaint is directed to be restored to its file at the stage where the learned Magistrate had proceeded to dismiss the complaint. It is expected of the original complainant to appear before the learned Magistrate on the date, which may be fixed for cross- examination without any further delay. Both the parties are requested to cooperate in the proceedings pending before the trial Court for expedite disposal of the Criminal Case.

5. Let aforesaid Criminal Case be expeditiously decided by the Trial Court, preferably within a period of 2 months from the date of receipt of this order.

R & P received by this Court, is hereby directed to be sent back to the concerned Trial Court forthwith.

(NISHA M. THAKORE,J) Y.N. VYAS Page 5 of 5 Downloaded on : Sun Sep 17 02:55:53 IST 2023