Gujarat High Court
Shaikh Jabiulla Allabaksh vs State Of Gujarat on 6 January, 2023
Bench: Nisha M. Thakore
R/CR.A/1653/2022 ORDER DATED: 06/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1653 of 2022
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SHAIKH JABIULLA ALLABAKSH
Versus
STATE OF GUJARAT
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Appearance:
MR. BK. RAJ(3794) for the Appellant(s) No. 1
MS. ASMITA PATEL, APP for the Opponent(s)/Respondent(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 06/01/2023
ORAL ORDER
1. This is an appeal, filed by the original complainant under
Section 378 (4) of Cr.P.C. read with Section 482 of Cr.P.C.,
challenging the order dated 26.06.2022 passed by learned
Additional Chief Judicial Magistrate, Dabhoi, Vadodara below Exh.1
in Criminal Case No.351 of 2021. By the said order, the criminal
complaint under Section 138 of the N.I. Act filed by the present
appellant-original complainant came to be rejected as dismissed on
the ground of non-prosecution and absence of complainant under
Section 256 of the Cr.P.C.
2. This Court, vide order dated 26.08.2022, had granted special
leave to appeal permitting to challenge the aforesaid judgment and
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order of acquittal and the appeal has been admitted.
3. Heard Mr. B.K. Raj, learned advocate on record for the
appellant-original informant and Ms. Asmita Patel, learned APP
appearing for the respondent-State.
4. The record reveals that notice is served upon the respondent
No.2-original accused, who has chosen not to appear before this
Court and opposed the present appeal.
5. I have considered the submissions made by learned advocate
appearing for the appellant and have also examined the judgment
and order of acquittal and perused the rojnama placed on record as
Annexure- "B". From the record, it transpires that the complaint
was filed before the learned Judicial Magistrate First Class, Dabhoi
on 09.02.2021, which was registered as Criminal Case No.352 of
2021. The learned trial court, after verification of the original
complainant and taking into consideration the documents placed
on record, had proceeded to issue summons upon the original
accused-respondent No.2 herein on 15.03.2021, which was made
returnable on 17.04.2021. However, because of the pandemic
situation of Covid-19, the physical hearing of the courts were
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curtailed and the matter was adjourned from time to time.
6. On 26.11.2021, when the matter was taken up on board, the
accused had not appeared before the Court and the complainant
was present, the matter was posted for recording of plea and was
adjourned to 30.12.2021. Thereafter, on 30.12.2021, the court was
not available and the matter was adjourned to 08.02.2022. Again
because of the surge of second wave of Covid-19 pandemic, the
Court had shifted to online hearing and the matter was adjourned
to 24.03.2022. On 24.03.2022, the Court had proceeded for
issuance of bailable warrant upon the accused. In such
circumstances, the appellant-original complainant had chosen not
to remain present before the trial court under the bona fide belief
that the matter is posted for issuance of bailable warrant upon the
accused. In fact on perusal of the rojnama, when the matter was
listed on 22.04.2022, the reference is with regard to issuance of
bailable warrant upon the accused, thereafter also, the matter was
posted for issuance of bailable warrant on 27.05.2022 and was
adjourned to 26.06.2022.
7. When the matter was taken up for hearing on 26.06.2022, it
falls on Sunday, it was a day fixed for Lok Adalat. In such
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circumstances, no fault can be attributed to the present appellant-
original complainant of not remaining present on 26.06.2022, which
was special sitting, where the matters were to be decided in special
circumstances, where the parties were likely to enter into
settlement. In a given case, where the co-accused had chosen not to
appear before the trial court and the matter was posted for
issuance of bailable warrant in absence of the parties, the matter
was required to be listed for hearing before the regular court.
8. Thus, in my opinion, learned Additional Chief Judicial
Magistrate, Dabhoi has committed error in dismissing the complaint
by exercising power under Section 256 of Cr.P.C. on the ground of
absence of complainant and non prosecution.
9. Mr. B.K. Raj, learned advocate appearing for the appellant-
original complainant has assured this Court that the original
complainant shall remain personally present in hearing, which may
be fixed by the trial court and shall pursue the proceedings. The
order dated 26.06.2022 passed by learned Additional Chief Judicial
Magistrate, Dabhoi, Vadodara below Exh.1 in Criminal Case No.351
of 2021 dismissing the complaint on the technical ground is hereby
quashed and set aside. The original complaint is directed to be
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restored in its original file and learned Additional Chief Judicial
Magistrate, Dabhoi is also directed to proceed with the hearing of
the trial from the stage, by which, the order of dismissing the
complaint was passed.
10. With this observation and direction, present criminal appeal
is allowed and stands disposed of.
(NISHA M. THAKORE,J)
SUYASH
