NILESHBHAI KANTIBHAI RAJGOR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard Mr. Pathan, learned advocate for the appellant - original complainant.

(2.) This Court vide order dtd. 26/7/2023, had issued Notice for final disposal in the present appeal, which has been duly served upon the respondent No.2 - original accused. But the respondent No.2 has failed to appear and contest this appeal. Noticing the nature of issue involved, this Court has proceeded with the final adjudication of this appeal even in absence of original accused.

(3.) Learned advocate for the appellant has drawn attention of this Court to the impugned order dtd. 12/8/2022 passed by the learned Additional Judicial Magistrate First Class, Kalol, below Exhibit 1 in Criminal Case No.731 of 2020. The learned Magistrate by the said order, had proceeded to dismiss the complaint for non- prosecution in absence of learned advocate for the complainant as well as the complainant. It is submitted by the learned advocate on record for the complainant that though the original complaint relates to the year 2020, the summons issued by the learned trial Court was duly served and in fact, the accused had failed to appear before the trial Court. The deposition of the complainant has come on record in the form of affidavit on 09/10/12/2021 and thereafter, the matter was notified for cross-examination of the complainant on 11/2/2022. Since the accused had failed to appear before the trial Court, the Non-Bailable Warrant was issued upon the respondent - accused and he was produced before the learned Magistrate on 5/8/2023. On the next date of hearing, the matter was fixed for cross-examination of the complainant. It was the first date after the execution of the Non-Bailable Warrant and thereafter, the matter was fixed for cross-examination of the complainant. It is therefore, urged by the learned advocate that the learned Magistrate ought to have taken liberal approach before resorting to the provisions of Sec. 256 of the Cr.P.C., dismissing the complaint for non-prosecution. Learned advocate has placed reliance upon the judgment of this Court in the case of Narendrakumar Madanlal Sharma Vs. Babubhai Chaturbhai Khant reported in 2022(0) AIJEL-HC-244576 and has submitted that the learned Magistrate ought not to have taken technical approach. He has further submitted that in the similar set of fact, noticing the fact that the adjournments were sought for by both the parties, this Court had quashed and set aside the order of dismissal of the complaint under Sec. 256 of Cr.P.C. and had remanded the matter back to the trial Court to hear and decide afresh. He, therefore, urged this Court to restore the original complaint to its file by remanding the matter back to the Trial Court. He assured this Court that the original complainant shall appear before the trial Court as and when his presence is required.