(1) Cri. Appeal No. 629 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. CRIMINAL APPEAL NO. 629 OF 2011 Sau. Kasabai w/o. Jagannath Kondke, Age : 40 years, Occupation : Household & Agriculture, .. Appellant R/o. Ranjangaon, Taluka : Phulambri, (Original District : Aurangabad. complainant) versus 1. Sau. Chandrabhagabai w/o. Ramrao Kondke, Age : 55 years, Occupation : Agriculture, R/o. Ranjangaon, Taluka : Phulambri, District : Aurangabad. 2. Ramrao s/o. Rewaji Kondke, Age : 59 years, Occupation : Agriculture & Business, R/o. Ranjangaon, Taluka : Phulambri, District : Aurangabad. 3. Bhaskar s/o. Ramrao Kondke, Age : 39 years, Occupation : Agriculture, R/o. Ranjangaon, Taluka : Phulambri, District : Aurangabad. (2) Cri. Appeal No. 629 of 2011 4. Dadarao s/o. Ramrao Kondke, Age : 34 years, Occupation : Agriculture, R/o. Ranjangaon, Taluka : Phulambri, District : Aurangabad. 5. Baburao s/o. Ramrao Kondke, Age : 29 years, Occupation : Agriculture, R/o. Ranjangaon, Taluka : Phulambri, District : Aurangabad. 6. Sominath s/o. Chandrabhan Gadekar, Age : 46 years, Occupation : Agriculture, R/o. Girsawli, Taluka : Phulambri, District : Aurangabad. 7. Kashinath s/o. Dhondiba Kondke, .. Appeal abated Age : 59 years, as against respondent Occupation : Agriculture, no.7 as per order R/o. Ranjangaon, Taluka : Phulambri, dated 8-11-2011 District : Aurangabad. 8. The State of Maharashtra. .. Respondents. ....................... Mr. A.D. Kasliwal, Advocate, for the appellant. Mr. R.V. Gore, Advocate, for respondent nos.1 to 6. Appeal abated as against respondent no.7 as per order dated 8-11-2011. (3) Cri. Appeal No. 629 of 2011 Smt. Y.M. Kshirsagar, Additional Public Prosecutor, for respondent no.8. ........................ CORAM : SHRIHARI P. DAVARE, J. DATE : 22ND NOVEMBER 2011 ORAL JUDGMENT : 1. Heard learned respective Counsel for the parties, finally. 2. This is an appeal preferred by the appellant (original complainant) challenging the order of acquittal dated 14th July 2010, rendered by the learned Judicial Magistrate (First Class), Phulambri (District : Aurangabad), in Regular Criminal Case No. 499/2008, thereby dismissing the complaint filed by the complainant and acquitting the accused i.e. respondent nos.1 to 7 herein, for the offences punishable under Sections 447, 379, 427, 504, 506, read with Section 34 of Indian Penal Code. 3. The appellant i.e. original complainant, namely, Sau. Kasabai w/o. Jagannath Kondke, had filed private complaint against the accused i.e. respondent nos.1 to 7 herein, in the court (4) Cri. Appeal No. 629 of 2011 of Judicial Magistrate (First Class), Sillod, for the offences punishable under Sections 447, 379, 427, 504, 506, read with Section 34 of Indian Penal Code. The said complaint was subsequently transferred to the court of Judicial Magistrate (First Class), Phulambri and registered as Regular Criminal Case No. 499/2008. It was alleged in the complaint, that the accused nos.1 to 7, in collusion with each other, trespassed into the field owned and possessed by the complainant, bearing Gut No. 102, at village Ranjangaon (Taluka : Phulambri, District : Aurangabad), in the absence of the complainant and committed theft of Bajara crops which were cut, and seeds of Methi, and damaged the same. 4. Accordingly, learned Magistrate passed an order on 14-2-2006 and called a report under Section 202 of the Code of Criminal Procedure, from the concerned Police Station. After receipt of the said report, the learned Magistrate passed an order on 30th June 2006 and thereby issued process against accused nos.1 to 7, for the offences punishable under Section 379, 447, read with Section 34 of Indian Penal Code, and directed to register the said case as Regular Criminal Case. Thereafter, respondent nos.1 to 7 i.e. original accused appeared in the said case. However, it appears that subsequently the complainant, as well as, accused remained absent on various dates. Hence, once (5) Cri. Appeal No. 629 of 2011 non-bailable warrants were issued against the accused persons. However, subsequently they appeared in the said case and got cancelled the said non-bailable warrants. Moreover, it also appears that the complainant also remained absent and there are observations made by the learned Magistrate, that the complainant had not taken steps to proceed further and directions were issued to the complainant to take further steps. 5. It is submitted that the the accused persons had preferred an application Exhibit 32 on 18-10-2006, under Section 239 of the Code of Criminal Procedure, for discharge. Moreover, the matter was also placed for evidence before the charge. However, no order was passed on Exhibit 32 for discharge till dismissal of the complaint. Thereafter, it appears that the complainant remained absent on 9-2-2010, 15-6-2010 and on 14-7-2010, and hence, following order came to be passed on 14-7-2010 : " Complainant and her counsel are absent. It is noticed that since long complainant is absent. All accused and their counsel are present. Complainant has not taken steps to proceed further. No reason to keep matter on same stage for long time. Hence, complaint stands dismissed for want of prosecution. Accused are acquitted. " (6) Cri. Appeal No. 629 of 2011 Thus, the said complaint was dismissed and accused were acquitted by the order dated 14-7-2010. Moreover, an order was passed on Exhibit 32 i.e. application for discharge preferred by the accused persons, that "As the applicants are absent, at this stage, application filed." Being aggrieved by the said order of acquittal dated 14-7-2010, passed by the learned Magistrate, the appellant i.e. original complainant has preferred the present appeal. 6. Mr. A.D. Kasliwal, learned Counsel for the appellant, has canvassed that the dismissal of the complaint filed by the complainant is not on merits and same is due to non-appearance of the complainant and her Advocate and, therefore, one more opportunity be given to the complainant to prosecute the matter on merits, by setting aside the impugned order of acquittal. 7. Mr. R.V. Gore, learned Counsel for respondent nos.1 to 6 opposed the present Appeal vehemently, and submitted that although the matter was fixed for evidence before charge, the complainant remained absent consistently and also remained absent on 14-7-2010 also, and hence, the said complaint was dismissed by learned trial court rightly. Thus, learned Counsel for the respondent supported the impugned order, and submitted that present appeal bears no substance and same is devoid of any (7) Cri. Appeal No. 629 of 2011 merits, and therefore, same be dismissed. 8. Admittedly, the complaint filed by the complainant came to be dismissed due to her non-appearance on 14-7-2010. Hence, the said dismissal of the complaint and acquittal of the accused is a technical dismissal and acquittal under Section 256 of the Code of Criminal Procedure, and the said dismissal of complaint and acquittal of accused is not on its own merits. Hence, opportunity is required to be given to the complainant to prosecute the said complaint on its own merits, as well as, opportunity is required to be given to the accused persons also, to contest the said complaint as per its own merits. Hence, the impugned order dated 14-7-2010, regarding dismissal of the complaint and acquittal of the accused by the learned Judicial Magistrate (First Class), Phulambri, deserves to be quashed and set aside, relegating the present matter back to the concerned Magistrate to decide it on its own merits. However, simultaneously, it appears that on the date of dismissal of the complaint i.e. 14-7-2010, the complainant and his Counsel were absent, whereas the accused and their Counsel were present on the said date before the learned Magistrate, and therefore, the accused persons deserve to be compensated aptly by awarding reasonable costs to them, which is quantified at Rs. 1000/-. (8) Cri. Appeal No. 629 of 2011 9. In the result, present Appeal is allowed, and the impugned order dated 14th July 2010, passed by the learned Judicial Magistrate (First Class), Phulambri (District : Aurangabad), in Regular Criminal Case No. 499/2008, thereby dismissing the complaint for non-appearance of the complainant and acquitting the accused, stands quashed and set aside, and the matter is remitted back to the concerned court, and parties are directed to remain present before said court on 12th December 2011, at 11.00 a.m., and the learned Magistrate is requested to conduct hearing of the said case expeditiously, subject to payment of costs of Rs. 1000/- (Rupees one thousand only) by the appellant i.e. original complainant to respondent nos.1 to 6 herein i.e. original accused, within a period of two weeks from today, and the present Appeal is disposed of finally. 10. After passing aforesaid order, Mr. A.D. Kasliwal, learned Counsel for the appellant has paid costs of Rs. 1000/- to Mr. R.V. Gore, learned Counsel for respondent nos.1 to 6, and Mr. R.V. Gore, learned Counsel, has made a statement that he has received costs of Rs. 1000/-, as directed herein above. ( SHRIHARI P. DAVARE ) JUDGE bgp/kapp629