1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1307 OF 2009 IN CRIMINAL APPEAL NO.149 OF 2009 Subhash Nanasaheb Deshmukh .. Applicant Versus Rajendra Bharat Parbat & Anr. .. Respondents Mr.S.S.Shah for applicant Mr.S.S.Salunkhe for respondent No.1. CORAM : S.C.DHARMADHIKARI, J. DATE : 15th January 2010. P.C.: 1] The application for seeking leave to appeal is to impugn an order of acquittal recorded in complaint STC No.215 of 2004 on the file of the learned JMFC, Mhada, Dist. Solapur. 2] On 28th September 2005, the trial court passed the following order:- “Resumed today. Complainant absent. Accused Absent. ... Complaint stand dismissed for want of prosecution. 2 Accused acquitted. Their bail bond stand cancelled. Proceedings closed.” 3] Aggrieved by this order the present applicant preferred Revision Application to the Sessions Court being Criminal Revision Application No.36 of 2007. That having been dismissed, the complainant had to approach this Court. 4] It is apparent from the provisions of Cr.P.C., that as far as the subject acquittal was concerned, the revision application was not the remedy of the applicant. It was, therefore, not maintainable and yet, the learned Judge has gone into the merits of the matter and upheld the dismissal of the complaint for want of appearance of applicant- complainant. To my mind, nothing prevents the applicant from impugning the trial court’s order and seeking leave to appeal against the same. Precisely that is done. Merely because the complainant approached a wrong forum initially and instituted proceedings which were not maintainable, this Court is not prevented, in the peculiar facts, from scrutinising the order of the trial court. 3 5] Hence, application for seeking leave to appeal is made absolute. Leave to appeal is granted. (S.C.Dharmadhikari, J) 4 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.149 OF 2009 Subhash Nanasaheb Deshmukh .. Applicant Versus Rajendra Bharat Parbat & Anr. .. Respondents Mr.S.S.Shah for applicant Mr.S.S.Salunkhe for respondent No.1. CORAM : S.C.DHARMADHIKARI, J. DATE : 15th January 2010. P.C.: 1] Heard. Admit. By consent taken up for hearing forthwith. 2] The appeal impugns the dismissal of the complaint for want of appearance of complainant – appellant. The appellant has set out the reason as to why on the relevant date he could not remain present. A copy of roznama would indicate that the complaint had been listed on 19th July 2005 and, thereafter, adjourned to 2nd September 2005, on which date both complainant – appellant before me and accused were present. On that date it came to be adjourned to 19th September 2005, on which date 5 also both were present and the complaint came to be adjourned for hearing and say on Exh.12 to 28th September 2005, on which date the learned Judge proceeded to dismiss the complaint itself for want of appearance of appellant. It is only one date on which he could not remain present. From the roznama it does not appear that the complainant has not been diligent in prosecuting the complaint. On several occasions even the court time was insufficient or the court was busy in other matters, necessitating adjournments. Ultimately all procedural provisions are to aid imparting of justice and not to throttle the same. The trial court could have ensured presence of appellant by imposing appropriate conditions instead of visiting him with the extreme penalty of dismissal of the complaint itself. 3] To my mind, unnecessarily the time has been wasted in revisional proceedings which were apparently not maintainable from 10th January 2006 to 23rd May 2008. Revision remained on the file of the Sessions Court. All this has entailed in further delaying the proceedings. In these circumstances, interest of justice would be sub-served if the trial court’s order is set aside and the complaint is restored to its file for disposal on merits and in accordance with law. Needless to state that this order does 6 not prevent the trial court from dismissing the complaint, if the appellant complainant persistently remained absent. Appeal allowed. Complainant to pay cost to the accused quantified at Rs.5000/-. (S.C.DHARMADHIKARI, J)