SCR.A/217/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 217 of 2008 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ====================================== == 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 ? ====================================== == RAJ AGENCY THROUGH GIRDHARBHAI MOHANBHAI TALAVIYA Versus STATE OF GUJARAT ====================================== == Appearance : MR PP MAJMUDAR for the Applicant MR LB DABHI, APPP for the Respondent ====================================== == CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 15/02/2008 SCR.A/217/2008 2/5 JUDGMENT ORAL JUDGMENT 1. Learned advocate for the petitioner has tendered a draft amendment. The same is granted. Amendment to be carried out forthwith. 2. By this petition under Articles 226 and 227 of the Constitution of India and section 482 of the Code of Criminal Procedure, 1973, the petitioner has challenged the order dated 4th January, 2007(2008) passed by the learned Presiding Officer, 7th Fast Track Court, Gondal – Camp at Dhoraji in Criminal Miscellaneous Application No.85/07, whereby the petitioner's application for restoration of his appeal has been rejected. 3. The facts stated briefly are that the petitioner had challenged the order dated 29th November, 1999 passed by the Collector, Rajkot under the provisions of Essential Commodities Act by way of an appeal before the learned Additional Sessions Judge, Gondal being Criminal Appeal No.22/99. By an order dated 13th March, 2007, the said appeal was dismissed for default. The petitioner moved an application being Criminal Miscellaneous Application No.85/07 seeking restoration of the appeal. By the impugned order dated 4th January, 2007 (2008), the learned Presiding Officer dismissed the application. Being aggrieved, the petitioner has filed the present petition challenging the said order. SCR.A/217/2008 3/5 JUDGMENT 4. Heard Mr. P.P. Majmudar, learned advocate for the petitioner and Mr. L.B. Dabhi, learned Additional Public Prosecutor on behalf of respondent - State of Gujarat. 5. The learned advocate for the petitioner has submitted that by an order dated 28.3.2007, the appeal preferred by the petitioner has been transferred to the Fast Track Court, Dhoraji from the Sessions Court, Gondal, therefore, the concerned advocate, who was handling with the case at Gondal had returned the file. However, the concerned employee who was dealing with the said matter did not inform the petitioner that the concerned advocate had returned the file. Hence, when the petitioner was communicated the date of hearing, the petitioner under the bona fide belief that the learned advocate would be representing him, could not remain present on the date of hearing and that the learned Presiding Officer dismissed the appeal for default on account of non-appearance on the part of the petitioner as well as the advocate. It is submitted that there was no deliberate negligence on the part of the petitioner and due to reasons beyond the control of the petitioner, he could not remain present before the Court either personally or through his advocate. It was urged that considering the fact that the petitioner has a meritorious case in appeal, there was sufficient cause to restore the appeal, therefore, the learned Presiding Officer had erred in not restoring the appeal. 6. On the other hand, Mr. L.B. Dabhi, learned Additional SCR.A/217/2008 4/5 JUDGMENT Public Prosecutor has supported the impugned order and has opposed the grant of any relief in favour of the petitioner. 7. As can be seen from the impugned order passed by the learned Presiding Officer, the sole reason which has weighed with the learned Presiding Officer while rejecting the application is that the petitioner had not named the concerned advocate who was appearing on his behalf before the Sessions Court at Gondal or the concerned employee who was dealing with the case at the relevant time. The learned Judge was of the view that non- mentioning of the aforesaid names was sufficient for not allowing the application. 8. At the outset, it may be noted that the aforesaid deficiency has been rectified in the present application, wherein the name of the concerned advocate as well as the concerned employee have been specifically stated. Considering the submissions advanced by the learned advocate for the petitioner and having perused the impugned order passed by the learned Presiding Officer, this Court is of the view that in such matters, where on account of inadvertence either on the part of the applicant or his advocate, if the case has been dismissed for default, unless deliberate negligence can be attributed to the concerned party, the Court should be lenient in restoring the matter. Besides, a perusal of the grounds stated in the application for restoration made by the petitioner, clearly shows that sufficient cause has been SCR.A/217/2008 5/5 JUDGMENT made out for the petitioner or his advocate not remaining present before the concerned Court on 13th March, 2007. 9. In the circumstances, this Court is of the view that the learned Presiding Officer was not justified in rejecting the petitioner's application seeking restoration of the appeal. 10.For the foregoing reasons, the petition succeeds and is accordingly allowed. The impugned order dated 4th January, 2007 (2008) passed by the learned Presiding Officer, 7th Fast Track Court, Gondal – Camp at Dhoraji below Exhibit 1 in Criminal Miscellaneous Application No.85/07 is hereby quashed. Criminal Miscellaneous Application No.85/07 filed before the Fast Track Court, Gondal at Dhoraji is hereby allowed. Criminal Appeal No.22/99 is accordingly ordered to be restored to file. Rule is made absolute accordingly. 11.Writ to be sent forthwith. (H.N.DEVANI, J.) shekhar/-