Rohit Muljibhai Baladaniya vs State Of Gujarat
2023 Latest Caselaw 4146 Guj

   R/CR.MA/9172/2023                           ORDER DATED: 07/06/2023




    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
    R/CRIMINAL MISC.APPLICATION NO. 9172 of 2023
         In R/CRIMINAL APPEAL NO. 1130 of 2023
                         With
          R/CRIMINAL APPEAL NO. 1130 of 2023
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                       ROHIT MULJIBHAI BALADANIYA
                                 Versus
                            STATE OF GUJARAT
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Appearance:
MR CHINTAN S POPAT(5004) for the Applicant(s) No. 1
for the Respondent(s) No. 2
Ms. Monali Bhatt, Addl. PUBLIC PROSECUTOR                       for      the
Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
               Date : 07/06/2023
                ORAL ORDER

1.0. Heard Mr. Divyang Joshi, learned advocate has appeared for Mr. Popat, learned advocate for the applicant- original complainant.

2.0. Rule returnable forthwith. Ms.Bhatt, learned Additional Public Prosecutor waives service of Rule on behalf of the respondent State.

3.0. This application is filed seeking leave to appeal under Section 378(4) of the Code of Criminal Procedure against the judgment and order dated 3.3.2023 passed below Exh.1 whereby the learned Magistrate has proceeded to dismiss the complaint by resorting to Section 256 of the Code of Criminal Procedure.

4.0. Learned advocate has invited attention of this Court to

R/CR.MA/9172/2023 ORDER DATED: 07/06/2023

the provision of Section 256 of the Code of Criminal Procedure and has submitted that before passing order under Section 256 of the Code of Criminal Procedure the learned Magistrate ought to have satisfied himself by recording reason for non appearance of the complainant. He further submitted that before passing any order for dismissed for default, learned Magistrate ought to have called upon the learned advocate for the complainant, failing which, the Court ought to have proceeded to dismiss the complaint. Relying upon the Rojkam of the criminal case, it is submitted that no notice was issued upon the complainant before passing such order under Section 256 of the Code of Criminal Procedure. It is therefore, urged that leave to appeal be granted.

5.0. Considering the submissions made by the learned advocate for the applicant, present application requires consideration. Hence, present application for leave to appeal as prayed is granted. Rule is made absolute to the aforesaid extent.

Order in Appeal:

Let, notice for final disposal be issued, making it returnable on 28.06.2023. Ms. Bhatt, learned Additional Public Prosecutor waives service of notice on behalf of respondent State. Respondent no.2 be served through the concerned police station.

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