CR.A/1105/2000 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1105 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE J.C.UPADHYAYA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= PRAHLADBHAI REVABHAI PATEL - Appellant(s) Versus STATE OF GUJARAT & 4 - Opponent(s) ========================================================= Appearance : MR PRAKASH K JANI for Appellant(s) : 1, PUBLIC PROSECUTOR for Opponent(s) : 1, NOTICE SERVED for Opponent(s) : 2 - 5. MR VIKRAM J THAKOR for Opponent(s) : 3 - 5. ========================================================= CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 27/11/2008 ORAL JUDGMENT 1. The appellant herein who happens to be the original complainant in Criminal Case No.762 of 1997 in the Court of learned Judicial Magistrate First Class, Unjha preferred this appeal under Section 378 (4) of the Code of Criminal Procedure CR.A/1105/2000 2/5 JUDGMENT ('Cr.P.C.', for short). The impugned order, which is under challenge in this appeal is dated 17.12.1999. On that date, the appellant – complainant remained absent, but, on behalf of the complainant his learned advocate had tendered an application before the trial Court at Exh.39, stating the ground for absence of the complainant. However, that 'time-application' came to be dismissed. By virtue of the impugned order, the private criminal complaint for the offence punishable under Section 323 read with Section 114 of the Indian Penal Code came to be dismissed for default under Section 256 of the Cr.P.C., and accordingly, the respondents No.2,3 and 4 who were original accused Nos.1,2 and 3 came to be acquitted. Being aggrieved and dissatisfied with the impugned order, the original complainant preferred this appeal. 2. I have heard the submissions made by learned advocate Mr.Y.M.Thakor for learned advocate Mr.P.K.Jani for the appellant – complainant, learned APP Mr.U.R.Bhatt for respondent No.1 – State and learned advocate Mr.V.J.Thakor for respondents No.3,4 and 5. 3. Considering the submissions made on behalf of both the sides and the facts and circumstances of this appeal, it would not be necessary for this Court to enter into the merits of the case. There is no dispute that the original complainant alleged the offence of simple hurt against the three accused persons and vide order dated 3.10.1997, after undergoing formal inquiry contemplated under Section 202 of the Cr.P.C, the learned CR.A/1105/2000 3/5 JUDGMENT Magistrate took the cognizance of the offence and directed to issue summons to the three accused persons for the offence punishable under Section 323 read with Section 114 of the IPC. 3.1 The learned Magistrate recorded the plea of the accused on dated 18.4.1998. Since the accused did not plead guilty and claimed to be tried, the matter was adjourned for recording evidence of the complainant. On dated 17.12.1999, the learned advocate who represented the complainant filed an application at Exh.39 stating that the complainant was suffering from sickness of Falseferum- malaria and was under medical treatment, and therefore, could not remain present on that day. The learned Magistrate rejected said application, assigning the grounds that no medical certificate was attached with said application, to corroborate the say of ailment of the complainant and that on the last adjournment, while granting the time application of the complainant, it was directed that last date was granted, and therefore, the matter was adjourned on dated 17.12.1999. Assigning such reasons, the application came to be dismissed. Consequently, under Section 256 of the Cr.P.C., the private criminal complaint came to be dismissed and the accused came to be acquitted. 4. On behalf of the appellant – complainant, it was submitted that even the accused were not regular in attending the Court and sought for many adjournments. As against this, on behalf of the respondents No.3 to 5, it was submitted that even the CR.A/1105/2000 4/5 JUDGMENT complainant was not regular in attending the Court and many adjournment applications were granted by the learned Magistrate. 5. The sum and substance of the above discussion reveals that the matter was not disposed of on merits. When the learned advocate mentioned in the adjournment application, Exh.39 that the complainant had fallen sick and was suffering from serious ailment of falsiferum – malaria and was under treatment, the learned Magistrate, if at all required the production of medical certificate, should have granted some time to the learned advocate for production of the certificate. However, the fact remains that the acquittal was not recorded on merits and the old matter came to be further delayed by the impugned order passed by the learned Magistrate. 6. Considering the facts and circumstances of the case, it would be in the interest of justice that the impugned order should be set-aside. 7. For the foregoing reasons, the appeal is allowed and the impugned order passed by the learned Magistrate on dated 17.12.1999 in Criminal Case No.762 of 1997 is set-aside. The Criminal Case No.762 of 1997 is ordered to be restored to the file of the Court of the learned Magistrate. It is further directed that the original records and proceedings of the Criminal Case No.762 of 1997 be forthwith sent back to the trial Court. It is further submitted that the appellant – complainant Prahladbhai Revabhai Patel shall remain present CR.A/1105/2000 5/5 JUDGMENT before the trial Court on dated 24.12.2008 at 11 a.m. 8. Since the Criminal Case is very old, the learned Magistrate is directed to dispose of the Criminal Case as expeditiously as possible preferably within 3 months from the date of receipt of the record of the case. (J.C.UPADHYAYA, J.) (binoy)