Ravikumar Rajnikantbhai Patel ... vs Vishal Mansukhlal Bhavani
2023 Latest Caselaw 2776 Guj

      R/CR.MA/5441/2021                         ORDER DATED: 05/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 5441 of 2021

==========================================================
     RAVIKUMAR RAJNIKANTBHAI PATEL THRO LEGAL HEIR BEENABEN
                       RAJNIKANTBHAI PATEL
                              Versus
                   VISHAL MANSUKHLAL BHAVANI
==========================================================
Appearance:
MR AJAY S JAGIRDAR(2688) for the Applicant(s) No. 1
KARTIKKUMAR K JOSHI(8042) for the Respondent(s) No. 1,2
MR BHARGAV PANDYA ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 3
SACHNKUMAR D RAJGOR(8088) for the Respondent(s) No. 1,2
==========================================================

 CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE

                            Date : 05/04/2023

                             ORAL ORDER

1. Heard Mr. Ajay Jagirdar, learned advocate for the applicant - original complainant and Mr. Kartik K. Joshi, learned advocate for the respondent Nos.1 and 2 - original accused and Mr. Bhargav Pandya, learned APP for the respondent No.3 - State.

2. Rule returnable forthwith. Mr. Kartik K. Joshi, learned advocate waives service of Rule on behalf of the respondent Nos.1 and 2- original accused and Mr. Bhargav Pandya, learned APP waives service of Rule on behalf of the respondent No.3 - State.

3. This is an application seeking leave to appeal under Section 378(4) of the Code of Criminal Procedure, challenging the judgment and order dated 18.01.2022 passed by the learned Additional Senior Civil Judge and Chief Judicial Magistrate First Class, Surat. By the said judgment and order, learned Magistrate

R/CR.MA/5441/2021 ORDER DATED: 05/04/2023

has proceeded to dismiss the complaint solely on the ground that the original complainant being reported to have expired on 25.02.2018 and since last two years, heirs of deceased complainant have chosen not to proceed with the complaint. The Criminal Case was treated as abated.

4. Mr. Jagirdar, learned advocate for the complainant has invited attention of this Court to the Rozkam, which is placed on record. He submitted that in fact, heir of the deceased has reported before the concerned trial Court about the death of the complainant on 25.11.2019 and the next date of hearing was scheduled on 16.01.2020. However, in absence of the complainant, without giving reasonable opportunity to come with an appropriate application, the learned trial Court has proceeded to dismiss the complaint. He therefore, urged this Court to grant leave to appeal.

5. Having heard the learned advocates appearing for the respective parties and considering the nature of the dispute involved, prima facie, this Court finds that present leave to appeal requires consideration. Hence, this application for leave to appeal is granted. Rule is made absolute.

Registry is directed to notify the Criminal Appeal for admission hearing on 12.04.2023.

(NISHA M. THAKORE,J) Y.N. VYAS