R/CR.MA/5252/2023 ORDER DATED: 28/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 5252 of 2023
In R/CRIMINAL APPEAL NO. 696 of 2023
With
R/CRIMINAL APPEAL NO. 696 of 2023
==========================================================
DIPESHBHAI VALJIBHAI PATEL
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR KRUNAL D PANDYA(3283) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR BHARGAV PANDYA ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 28/03/2023
ORAL ORDER
1. Heard Mr. Krunal D. Pandya, learned advocate for the applicant.
2. Rule returnable forthwith. Learned APP Mr. Pandya waives service of notice of admission on behalf of the respondent No.1 State.
3. This is an application seeking leave to appeal filed under Section 378(4) of the Code of Criminal Procedure, challenging the judgment and order dated 11.02.2023 passed by the learned Judicial Magistrate First Class, Nadiad, in Criminal Case No.775 of 2019. By the said order, the learned Magistrate has proceeded to exercise the powers under Section 256 of the Code of Criminal Procedure, dismissing the complaint for default in absence of the learned advocate on record for the complainant and the Page 1 of 2 Downloaded on : Tue Mar 28 20:55:22 IST 2023 R/CR.MA/5252/2023 ORDER DATED: 28/03/2023 complainant.
4. Mr. Pandya, learned advocate for the applicant has relied upon the order dated 18.04.2018 passed by this Court in Criminal Appeal No.424 of 2018, wherein similar set of facts, the Court had proceeded to dismiss the complaint when the matter was notified in Special Sitting before Lok Adalat Court on a Public Holiday and in absence of the complainant and his counsel, the Court had proceeded to dismiss the complaint, resulting into the acquittal of the accused. This Court had recorded that such powers of dismissal of the matter for want of prosecution on a Public Holiday is impermissible. He, therefore, urged this Court to grant leave to appeal.
5. Considering the submissions made by the learned advocate for the applicant, present application seeking leave to appeal requires consideration. The application is allowed. Rule is made absolute.
CRIMINAL APPEAL No.696 of 2023:
Issue Notice for final disposal returnable on 13.04.2023. Learned APP waives service of Notice on behalf of the respondent No.1 State. The respondent No.2 be served through concerned Police Station.
(NISHA M. THAKORE,J) Y.N. VYAS Page 2 of 2 Downloaded on : Tue Mar 28 20:55:22 IST 2023