Simant Gopalchandra Awsthi vs Sudhaben Kushalbhai Patel, W/O ...
2023 Latest Caselaw 4097 Guj

   R/CR.MA/5261/2023                           ORDER DATED: 06/06/2023




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/CRIMINAL MISC.APPLICATION NO. 5261 of 2023
             In R/CRIMINAL APPEAL NO. 699 of 2023
                            With
              R/CRIMINAL APPEAL NO. 699 of 2023
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             SIMANT GOPALCHANDRA AWSTHI
                        Versus
      SUDHABEN KUSHALBHAI PATEL, W/O DHWANIT VORA
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Appearance:
MR HIMANSHU C DESAI(6832) for the Applicant(s) No. 1
Mr. Hardik Mehta, Addl. PUBLIC PROSECUTOR for the Respondent(s)
No. 2
RULE SERVED for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
                  Date : 06/06/2023
                    ORAL ORDER

Heard Mr.Himanshu Desai, learned advocate for the applicant- original complainant.

Present application under Section 378(4) of the Code of Criminal Procedure, 1973 has been preferred by the applicant for Leave to Appeal against the impugned judgment and order of acquittal dated 31.1.2023 passed in Criminal Case No.27027 of 2021 by the learned 5 th Additional Chief Judicial Magistrate, Ahmedabad acquitting the opponent herein - original accused.

This Court vide order dated 13.4.2023 has issued Rule upon the respondent accused. The Court at one stage has adjourned the matter considering the statement recorded by Gotri Police Station, which has come on record wherein the respondent has expressed to avail legal aid to represent her

R/CR.MA/5261/2023 ORDER DATED: 06/06/2023

case. Though sufficient opportunity has been granted, no appearance has been entered on behalf of the respondent accused. In such circumstance, the Court has proceeded with the hearing of this application seeking leave to appeal.

Mr. Desai, learned advocate for the applicant has invited attention of this Court to the reasons recorded by the learned Magistrate while recording order of acquittal and has submitted that the learned Magistrate has committed gross error by shifting burden upon the complainant to prove his case beyond reasonable doubt without considering the statutory presumption available under the Act. In absence of any challenge being raised by the accused in the cross examination of the complainant on the aforesaid aspect, the statutory presumption remained. He has further submitted that the defence has come on record in the form of further statement of the accused recorded under Section 313 of the Code of Criminal Procedure. However, the learned Magistrate has treated such further defence as probable defence. He, therefore, urge this Court to grant leave to appeal.

Considering the aforesaid submissions of the learned advocate for the applicant- original complainant, prima facie, the Court finds that the matter is required to be examined on the aspect as to mere defence in the form of statement recorded under Section 313 of the Code of Criminal Procedure is sufficient to rebut the statutory presumption available under the Act. Hence, the present application seeking leave to appeal requires consideration. Hence, the present application is allowed and Leave to Appeal, as prayed for, is hereby granted. Rule is made

R/CR.MA/5261/2023 ORDER DATED: 06/06/2023

absolute to the aforesaid extent.

Order in Appeal:

The appeal is admitted. Learned Additional Public Prosecutor waives service of notice of admission on behalf of respondent-State. Issue bailable warrant in sum of Rs. 10,000/- against private respondent No.1. Registry is directed to call for the record and proceedings of the case from the concerned Court.

(NISHA M. THAKORE,J) KAUSHIK J. RATHOD