bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION APPEAL APPEAL APPEAL NO. 681 OF 1996 NO. 681 OF 1996 NO. 681 OF 1996 The State of Maharashtra ... Appellant v/s Dashrath Sukrya Lokhande Proprietor of Sapana Touring Theatre, Boisar (Sathwad), Tal. Palghar, Dist. Thane. ... Respondent Mr.Y.S.Shinde, A.P.P for the appellant State. None present for the respondent. CORAM: CORAM: CORAM: A. S. OKA, J. A. S. OKA, J. A. S. OKA, J. DATED: DATED: DATED: 6TH JANUARY, 2009 6TH JANUARY, 2009 6TH JANUARY, 2009 ORAL ORAL ORAL JUDGMENT JUDGMENT JUDGMENT: 1. Heard learned A.P.P appearing for the appellant. 2. The appellant has taken exception to the order dated 10.6.1996 passed by the learned Judicial Magistrate, First Class, Palghar, by which a complaint filed by the Inspector for Entertainment Tax, Palghar, has been dismissed in exercise of powers under Section 256 of the Code of Criminal Procedure, 1973. 3. A complaint was filed alleging commission of offence under Section 5(A) and Section 7(2) of the Entertainment 2 Tax Act, 1923. Process was issued on the said complaint on 4.12.1986. As the complainant was absent on 10.6.1996, the learned Judge passed an order under Section 256 of the said Code. 4. The learned A.P.P appearing for the appellant State has taken me to the roznama of the case. He pointed out that the complainant was never absent. He pointed out that the complainant was very much intended to remain present and in view of 10.6.1996. When the order was passed, the complainant was absent. He submitted that the order impugned is illegal. 5. None appears for the respondent. 6. I have perused the roznama of the proceedings. It appears that the process was issued on the complaint on 4.12.1986. From 4.8.1987 onwards the case was fixed from time to time before the learned Magistrate. The roznama shows that on several dates the respondent accused was absent. Therefore, the summons and/or warrants were ordered to be issued to the respondent. On 31.12.1995, the roznama records that the learned Magistrate was on leave but the complainant was present and the accused was absent. The roznama dated 31.12.1995 records two further dates i.e. 12.3.1996 and 3 10.6.1996. There is no reference in the roznama as to what transpired on 12.3.1996. On 10.6.1996 the complainant was absent and, therefore, the order was passed under Section 256 of the said Code. Perusal of the roznama shows that the complainant was consistently present. On the contrary, the respondent was repeatedly absent and that is why even plea could not be recorded. In my view, the learned Judge has taken a very harsh view in the matter by dismissing the complaint in exercise of powers under Section 256 of the said Code. Hence, the impugned order deserves to be quashed and set aside and the complaint will have to be restored. 7. Hence, I pass the following order:- O R D E R R D E R R D E R (1) The impugned order dated 10.6.1996 is quashed and set aside. (2) Criminal Case No.1585 of 1986 is restored to the file of the learned Judicial Magistrate, First Class, Palghar. (3) The learned Magistrate will issue a fresh summons to the respondent accused and will 4 thereafter proceed with the complaint in accordance with law. (4) Hearing of the complaint is expedited. (5) If R & P is received by this Court, the same shall be forthwith transmitted to the concerned Court. ( A. S. OKA, J. ) A. S. OKA, J. ) A. S. OKA, J. )