Gujarat High Court
Mohmmed Akbar Humayu Bikanerwala vs State Of Gujarat on 21 September, 2023
Bench: Nisha M. Thakore
NEUTRAL CITATION
R/CR.MA/8145/2023 ORDER DATED: 21/09/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 8145 of 2023
In R/CRIMINAL APPEAL NO. 1021 of 2023
With
R/CRIMINAL APPEAL NO. 1021 of 2023
==============================================================
MOHMMED AKBAR HUMAYU BIKANERWALA
Versus
STATE OF GUJARAT
==============================================================
Appearance:
MR LIYAKAT I MEHTA(3555) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3,4
Ms. Vrunda C Shah, Addl.PUBLIC PROSECUTOR for the
Respondent(s) No. 1
==============================================================
CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 21/09/2023
ORAL ORDER
1. Heard Ms. Mansuri, learned advocate who has appeared on
behalf of Mr. Liyakat Mehta, learned advocate for the applicant.
Rule returnable forthwith. Learned Additional Public Prosecutor
waives service of Rule on behalf of the respondent State.
2. This application is filed seeking leave to appeal under
Section 378(4) of the Code of Criminal Procedure against the
impugned judgment and order dated 25.03.2022 passed by the
17th learned Additional Judicial Magistrate First Class, Surat in
Criminal Case No.8516 of 2017, whereby, the learned Magistrate
has dismissed the complaint for default in absence of learned
advocate for the complainant or complainant.
3. Learned advocate for the applicant has drawn attention of
this court to the order impugned passed by the learned
Magistrate under Section 256 of the Code of Criminal Procedure
NEUTRAL CITATION
R/CR.MA/8145/2023 ORDER DATED: 21/09/2023
undefined
dismissing the complaint for default, in absence of learned
advocate for the complainant or complainant. She has submitted
that though the matter was listed for evidence of the original
complainant, the copy of the Rojkam goes to indicate that the
matter could not progress for trial in absence of original accused
no.1. From the Rojkam, she has pointed out the fact that at one
stage the summons was duly served upon the original accused
no.1. However, noticing the absence of the original accused
bailable warrant was issued. By pointing out the aforesaid fact,
she has submitted that accused no.1 had finally appeared before
the learned Magistrate on 11.1.2021. Thereafter, the matter was
listed on two occasions but because of the notification issued by
the State Government noticing the Covid 19 situation, hearing of
the trial was curtailed. Lastly, when the matter was listed on
25.5.2022 noticing the presence of the accused and the absence
of the complainant, the trial Court proceeded to pass impugned
order of dismissal for default. She, therefore, submitted that
learned Magistrate has committed serious error in resorting to
the power conferred under Section 256 of the Code without
giving sufficient opportunity to the complainant to establish his
case on merits. As such approach of the learned Magistrate has
resulted into technical acquittal of the respondent accused. She,
therefore, urged this Court to grant leave to appeal.
4. Considering the submissions of the learned advocate for
the applicant and having perused the impugned order, in the
opinion of this Court, the matter requires consideration. Hence,
this application seeking leave to appeal is hereby granted. Rule
is made absolute.
NEUTRAL CITATION
R/CR.MA/8145/2023 ORDER DATED: 21/09/2023
undefined
Order in Criminal Appeal No.1021 of 2023
Issue notice for final disposal, making it returnable on
23.10.2023. Learned Additional Public Prosecutor waives service
of notice on behalf of the respondent State. Respondent nos.2 to
4 be served through the concerned Police Station.
(NISHA M. THAKORE,J)
KAUSHIK J. RATHOD
