FATEHSINH PUNJABHAI SOLANKI Vs. TEJAJI NANGAJI VANJHARA

JUDGEMENT

(1.) Heard Ms. R.V. Acharya, learned advocate for the applicant - original complainant. Though notice is served upon the respondent no.1- original accused, no appearance has been filed on behalf of the respondent.

(2.) This is an application seeking leave to appeal challenging the order dtd. 10/3/2022 passed below Exh.1in Criminal Case No.144 of 2020 whereby learned 2nd Additional Chief Judicial Magistrate, Anand in absence of complainant and his advocate, has proceeded to exercise the powers under Sec. 256 of the Code of Criminal Procedure dismissing the complaint resulting into acquittal of the accused.

(3.) Ms. Acharya, learned advocate has placed reliance upon the copy of the summons dtd. 22/1/2022 issued by the learned Magistrate directing the accused to remain present. She has further relied upon the case status and has submitted that summons were duly served upon the accused and at one stage the Court had acceded to the request of the complainant and had issued non-bailable warrant upon the accused. She has relied upon the decision of this Court in the case of Ankur Gopalbhai Patel vs. Chist Vasimudin Khurshidbhai and another reported in 2018(4) GLR 3049 and has submitted that learned Magistrate ought not to have proceeded to dismiss the complaint invoking Sec. 256 of the Code of Criminal Procedure. She therefore, urge this Court to grant leave to appeal. Considering the averments made in the application and grounds raised in the memo of appeal and submissions made, this Court is of the view that the present application requires consideration. Hence, the present application is allowed and Leave to Appeal, as prayed for, is hereby granted. Order in Criminal Appeal No.1561 of 2022 Heard Ms. R.V. Acharya, learned advocate for the applicant - original complainant. Issue notice for final disposal making it returnable on 10/4/2023. Direct service is permitted. Applicant - original complainant is permitted to serve the respondent through Registered Post AD. Registry is directed to call for the Record and proceedings of the case from the concerned Court so as to reach this Court on or before 10/4/2023.