Gujarat High Court
State Of Gujarat vs Bharatbhai Mansukhbhai Kanpariya on 3 October, 2024
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R/SCR.A/4765/2016 ORDER DATED: 03/10/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 4765 of 2016
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STATE OF GUJARAT
Versus
BHARATBHAI MANSUKHBHAI KANPARIYA
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Appearance:
MR ROHAN N SHAH for the Applicant(s) No. 1
RULE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 03/10/2024
ORAL ORDER
1. By way of this petition under Section 482 of Code of
Criminal Procedure challenging the judgment and order dated
07.05.2016 passed below Exhibit-1 by learned 5th Additional
Sessions Judge, Surat in Criminal Miscellaneous (Delay)
Application No.1986 of 2015.
2. Heard learned APP Mr. Rohan N. Shah for the petitioner-
State original applicant. Though served, none appears for
respondent-original accused.
3. The brief facts of the case are as under:-
3.1. Petitioner has preferred Criminal Appeal against the
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judgment and order dated 07.07.2014 passed in Criminal Case
No.10982 of 2008 acquitting the present respondent-accused for
the offences punishable under Sections 323, 332 and 504 of the
Indian Penal Code, 1860. As there was a delay of 176 days in
preferring the Criminal Appeal, an application for condonation
of delay was filed. A notice was issued to respondent-accused in
the Criminal Miscellaneous (Delay) Application No.1986 of
2015. As the applicant-original-appellant, despite full
opportunities, could not serve notice upon the respondent-
accused, learned 5th Additional Sessions Judge, Surat on
07.05.2016, dismissed the application for default for want of
new address of respondent-accused.
4. Learned APP for the petitioner-State has submitted that
against the acquittal order of the learned Judicial Magistrate
First Class, Surat in Criminal Case No.10982 of 2008, the
present applicant preferred Criminal Appeal on 07.07.2014 with
an application for condonation of delay of 176 days. The
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reasons assigned in the application are purely administrative. A
notice came to be issued upon the address mentioned in the
application for condonation of delay, however, for some reason
or the other, notice could not be served upon the respondent-
accused. It is further submitted that as per Bailiff Report,
accused was not residing at the address shown in the cause-title
of the application. It is further submitted that in the present
petition, the address of respondent-accused is the same as that of
the address mentioned in the application for condonation of
delay. It is further submitted that in the present petition, rule has
been served upon respondent-accused at the address shown in
the cause-title of the petition. However, respondent has not
remained present and contested this proceeding. It is further
submitted that in the interest of justice, the impugned order may
be quashed and set aside and an opportunity be given to the
applicant to pursue the proceedings before the learned
Additional Sessions Court. It is further submitted on a technical
ground of want of furnishing new address, application is
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dismissed. The applicant-petitioner had no occasion to
substantiate the sufficient cause, which is mentioned in the
application. It is further submitted that if the impugned order is
set aside, the respondent-accused would not suffer any
prejudice.
5. Having considered the submissions and the averments
made in the petition, it is found that rule issued by the Co-
ordinate Bench of this Court has been served upon respondent-
accused. However, respondent-accused has chosen not to appear
and contest the petition. It transpires from the application for
condonation of delay as well as from the order impugned, an
application for condonation of delay is dismissed on the
technical ground of non-service of the notice to the respondent-
accused. This Court has considered fact that the address in the
present petition and the address mentioned in the application for
condonation of delay, which was filed before the learned
Additional Sessions Court is same. The Rule issued by this
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Court has been received by the respondent-accused, it reflects
that the respondent-accused is residing at the same address
which is reflected in the cause title of the application for
condonation of delay.
6. Applying a justice oriented view and with a view to give a
chance to the petitioner to prove its case on merits, I am of the
view that the impugned order dated 07.05.2016 below Exhibit-1
passed in Criminal Miscellaneous (Delay) Application No.1986
of 2015 is required to be quashed and set aside with a direction
to the learned Additional Sessions Court to issue fresh notice on
respondent-accused. It is also directed to the petitioner that
upon issuance of fresh notice to the respondent-accused, the
petitioner shall see that the notice issued by the learned
Additional District and Sessions Court, Surat is served upon the
respondent-accused as early as possible without any delay. It is
further directed that if the respondent-accused has changed his
residence, the petitioner is further directed to trace the
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residential address of the respondent-accused within a period of
15 days from the date of the Bailiff report regarding non-service
of the notice.
7. With the above directions and observations, the Criminal
Miscellaneous (Delay) Application No.1986 of 2015 is directed
to be restored to its original file. Accordingly, petition is
allowed. No order as to costs. Since the issue involved in the
petition is very limited, I am not dwelling into other aspects of
the matter on merits. This Court has not examined merits and
demerits of the impugned order passed by the learned Judicial
Magistrate First Class, Surat in Criminal Case No.10982 of
2008.
8. The learned District and Sessions Court, Surat shall decide
the case strictly on its merits and in accordance with law.
(D. M. DESAI,J)
RINKU MALI
