Jashuba Somsinh Hajursinh ... vs State Of Gujarat
2023 Latest Caselaw 4341 Guj

      R/CR.MA/10144/2023                                     ORDER DATED: 12/06/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
            R/CRIMINAL MISC.APPLICATION NO. 10144 of 2023
                                With
                  R/CRIMINAL APPEAL NO. 1315 of 2023
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      JASHUBA SOMSINH HAJURSINH VAGHELA WD/O SOMSINH
                    HAJURSINH VAGHELA
                          Versus
                     STATE OF GUJARAT
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Appearance:
MR JANAK D VARDEY(10910) 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 : 12/06/2023
                    ORAL ORDER

1.0. Heard Mr. Janak Vardey, learned advocate for the applicant. Rule returnable forthwith. Ms. Bhatt, learned Additional Public Prosecutor waives service of Rule on behalf of respondent State.

2.0. Present application under Section 378(4) of the Code of Criminal Procedure has been preferred by the applicant for leave to appeal against the impugned judgment and order of acquittal dated 18.04.2023 passed in Criminal Case No.2264 of 2019 by the learned Additional Chief Judicial Magistrate, Deesa acquitting the original accused.

3.0. Mr. Vardey, learned advocate for the applicant at the outset, has invited attention of this Court to the fact that the original complainant Somsinh Vaghela has expired on 22.2.2022 pending trial. The copy of the death certificate of deceased

R/CR.MA/10144/2023 ORDER DATED: 12/06/2023

original complainant has been brought on record. The Vakalatnama was entered by the learned advocate representing wife of deceased original complainant which is brought on record vide Exh.53. Relying upon the aforesaid document, Mr. Vardey, learned advocate has submitted that despite the fact that the widow of original complainant being permitted to pursue the proceeding, the impugned judgment and order is passed in the name of deceased person.

4.0. By inviting the attention of this Court to the reasons recorded by the learned trial Court while passing the impugned judgment and order, he has submitted that the learned Magistrate has committed serious error by accepting the false case raised by the accused which in no uncertain term can be treated as probable defence so as to shift the burden upon the complainant to prove his case beyond reasonable doubt. He has submitted that the entire story presented by the accused is nothing but vague and baseless defence being raised without any supporting document being brought on record. He, therefore, urge this Court to grant leave to appeal. Considering the submissions made by the learned advocate for the applicant, prima facie, the case is made out to grant leave to appeal. Hence, the present application is allowed and Leave to Appeal, as prayed for, is hereby granted. Rule is made absolute.

Order in Criminal Appeal:

Admit. Learned Additional Public Prosecutor waives service of admission on behalf of the respondent State.

R/CR.MA/10144/2023 ORDER DATED: 12/06/2023

Issue bailable warrant in sum of Rs.10,000/-against respondent no.2. Registry is directed to call for the record and proceedings of the case from the concerned Court.

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