Bombay High Court
Sau. Kasabai vs Sau. Chandrabhagabai on 22 November, 2011
Bench: Shrihari P. Davare
(1) Cri. Appeal No. 629 of 2011
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
CRIMINAL APPEAL NO. 629 OF 2011
Sau. Kasabai w/o. Jagannath Kondke,
Age : 40 years,
Occupation : Household & Agriculture, .. Appellant
R/o. Ranjangaon, Taluka : Phulambri, (Original
District : Aurangabad. complainant)
versus
1. Sau. Chandrabhagabai w/o. Ramrao Kondke,
Age : 55 years,
Occupation : Agriculture,
R/o. Ranjangaon, Taluka : Phulambri,
District : Aurangabad.
2. Ramrao s/o. Rewaji Kondke,
Age : 59 years,
Occupation : Agriculture & Business,
R/o. Ranjangaon, Taluka : Phulambri,
District : Aurangabad.
3. Bhaskar s/o. Ramrao Kondke,
Age : 39 years,
Occupation : Agriculture,
R/o. Ranjangaon, Taluka : Phulambri,
District : Aurangabad.
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(2) Cri. Appeal No. 629 of 2011
4. Dadarao s/o. Ramrao Kondke,
Age : 34 years,
Occupation : Agriculture,
R/o. Ranjangaon,
Taluka : Phulambri,
District : Aurangabad.
5. Baburao s/o. Ramrao Kondke,
Age : 29 years,
Occupation : Agriculture,
R/o. Ranjangaon,
Taluka : Phulambri,
District : Aurangabad.
6. Sominath s/o. Chandrabhan Gadekar,
Age : 46 years,
Occupation : Agriculture,
R/o. Girsawli, Taluka : Phulambri,
District : Aurangabad.
7. Kashinath s/o. Dhondiba Kondke, .. Appeal abated
Age : 59 years, as against respondent
Occupation : Agriculture, no.7 as per order
R/o. Ranjangaon, Taluka : Phulambri, dated 8-11-2011
District : Aurangabad.
8. The State of Maharashtra. .. Respondents.
.......................
Mr. A.D. Kasliwal, Advocate, for the appellant.
Mr. R.V. Gore, Advocate, for respondent nos.1 to 6.
Appeal abated as against respondent no.7 as
per order dated 8-11-2011.
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(3) Cri. Appeal No. 629 of 2011
Smt. Y.M. Kshirsagar, Additional Public Prosecutor,
for respondent no.8.
........................
CORAM : SHRIHARI P. DAVARE, J.
DATE : 22ND NOVEMBER 2011
ORAL JUDGMENT :
1. Heard learned respective Counsel for the parties,
finally.
2. This is an appeal preferred by the appellant (original
complainant) challenging the order of acquittal dated 14th July
2010, rendered by the learned Judicial Magistrate (First Class),
Phulambri (District : Aurangabad), in Regular Criminal Case No.
499/2008, thereby dismissing the complaint filed by the
complainant and acquitting the accused i.e. respondent nos.1 to 7
herein, for the offences punishable under Sections 447, 379, 427,
504, 506, read with Section 34 of Indian Penal Code.
3. The appellant i.e. original complainant, namely, Sau.
Kasabai w/o. Jagannath Kondke, had filed private complaint
against the accused i.e. respondent nos.1 to 7 herein, in the court
(4) Cri. Appeal No. 629 of 2011
of Judicial Magistrate (First Class), Sillod, for the offences
punishable under Sections 447, 379, 427, 504, 506, read with
Section 34 of Indian Penal Code. The said complaint was
subsequently transferred to the court of Judicial Magistrate (First
Class), Phulambri and registered as Regular Criminal Case No.
499/2008. It was alleged in the complaint, that the accused nos.1
to 7, in collusion with each other, trespassed into the field owned
and possessed by the complainant, bearing Gut No. 102, at
village Ranjangaon (Taluka : Phulambri, District : Aurangabad),
in the absence of the complainant and committed theft of Bajara
crops which were cut, and seeds of Methi, and damaged the
same.
4. Accordingly, learned Magistrate passed an order on
14-2-2006 and called a report under Section 202 of the Code of
Criminal Procedure, from the concerned Police Station. After
receipt of the said report, the learned Magistrate passed an order
on 30th June 2006 and thereby issued process against accused
nos.1 to 7, for the offences punishable under Section 379, 447,
read with Section 34 of Indian Penal Code, and directed to
register the said case as Regular Criminal Case. Thereafter,
respondent nos.1 to 7 i.e. original accused appeared in the said
case. However, it appears that subsequently the complainant, as
well as, accused remained absent on various dates. Hence, once
(5) Cri. Appeal No. 629 of 2011
non-bailable warrants were issued against the accused persons.
However, subsequently they appeared in the said case and got
cancelled the said non-bailable warrants. Moreover, it also
appears that the complainant also remained absent and there are
observations made by the learned Magistrate, that the
complainant had not taken steps to proceed further and directions
were issued to the complainant to take further steps.
5. It is submitted that the the accused persons had
preferred an application Exhibit 32 on 18-10-2006, under Section
239 of the Code of Criminal Procedure, for discharge. Moreover,
the matter was also placed for evidence before the charge.
However, no order was passed on Exhibit 32 for discharge till
dismissal of the complaint. Thereafter, it appears that the
complainant remained absent on 9-2-2010, 15-6-2010 and on
14-7-2010, and hence, following order came to be passed on
14-7-2010 :
" Complainant and her counsel are
absent. It is noticed that since long
complainant is absent. All accused and their
counsel are present. Complainant has not
taken steps to proceed further. No reason to
keep matter on same stage for long time.
Hence, complaint stands dismissed for want
of prosecution. Accused are acquitted. "
(6) Cri. Appeal No. 629 of 2011
Thus, the said complaint was dismissed and accused were
acquitted by the order dated 14-7-2010. Moreover, an order was
passed on Exhibit 32 i.e. application for discharge preferred by
the accused persons, that "As the applicants are absent, at this
stage, application filed." Being aggrieved by the said order of
acquittal dated 14-7-2010, passed by the learned Magistrate, the
appellant i.e. original complainant has preferred the present
appeal.
6.
Mr. A.D. Kasliwal, learned Counsel for the appellant,
has canvassed that the dismissal of the complaint filed by the
complainant is not on merits and same is due to non-appearance
of the complainant and her Advocate and, therefore, one more
opportunity be given to the complainant to prosecute the matter
on merits, by setting aside the impugned order of acquittal.
7. Mr. R.V. Gore, learned Counsel for respondent nos.1
to 6 opposed the present Appeal vehemently, and submitted that
although the matter was fixed for evidence before charge, the
complainant remained absent consistently and also remained
absent on 14-7-2010 also, and hence, the said complaint was
dismissed by learned trial court rightly. Thus, learned Counsel
for the respondent supported the impugned order, and submitted
that present appeal bears no substance and same is devoid of any
(7) Cri. Appeal No. 629 of 2011
merits, and therefore, same be dismissed.
8. Admittedly, the complaint filed by the complainant
came to be dismissed due to her non-appearance on 14-7-2010.
Hence, the said dismissal of the complaint and acquittal of the
accused is a technical dismissal and acquittal under Section 256
of the Code of Criminal Procedure, and the said dismissal of
complaint and acquittal of accused is not on its own merits.
Hence, opportunity is required to be given to the complainant to
prosecute the said complaint on its own merits, as well as,
opportunity is required to be given to the accused persons also, to
contest the said complaint as per its own merits. Hence, the
impugned order dated 14-7-2010, regarding dismissal of the
complaint and acquittal of the accused by the learned Judicial
Magistrate (First Class), Phulambri, deserves to be quashed and
set aside, relegating the present matter back to the concerned
Magistrate to decide it on its own merits. However,
simultaneously, it appears that on the date of dismissal of the
complaint i.e. 14-7-2010, the complainant and his Counsel were
absent, whereas the accused and their Counsel were present on
the said date before the learned Magistrate, and therefore, the
accused persons deserve to be compensated aptly by awarding
reasonable costs to them, which is quantified at Rs. 1000/-.
(8) Cri. Appeal No. 629 of 2011
9. In the result, present Appeal is allowed, and the
impugned order dated 14th July 2010, passed by the learned
Judicial Magistrate (First Class), Phulambri (District :
Aurangabad), in Regular Criminal Case No. 499/2008, thereby
dismissing the complaint for non-appearance of the complainant
and acquitting the accused, stands quashed and set aside, and the
matter is remitted back to the concerned court, and parties are
directed to remain present before said court on 12th December
2011, at 11.00 a.m., and the learned Magistrate is requested to
conduct hearing of the said case expeditiously, subject to
payment of costs of Rs. 1000/- (Rupees one thousand only) by
the appellant i.e. original complainant to respondent nos.1 to 6
herein i.e. original accused, within a period of two weeks from
today, and the present Appeal is disposed of finally.
10. After passing aforesaid order, Mr. A.D. Kasliwal,
learned Counsel for the appellant has paid costs of Rs. 1000/- to
Mr. R.V. Gore, learned Counsel for respondent nos.1 to 6, and
Mr. R.V. Gore, learned Counsel, has made a statement that he has
received costs of Rs. 1000/-, as directed herein above.
( SHRIHARI P. DAVARE )
JUDGE
bgp/kapp629
