HARUNBHAI HAJI HABIBBHAI GHETA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule. Mr.M.R.Mengdey, learned APP waives service of rule on behalf of respondent No.1. Mr.Yatin Soni, learned Advocate waives service of rule on behalf of respondent No.2.

(2.) A criminal complaint is registered at Upleta Police Station against the petitioner on 04.04.2006 for the offences punishable under Section 323, 406 and 114 of the Indian Penal Code and after submission of the charge-sheet same is registered as Criminal Case being 550 of 2006, that; during the course of the investigation Stridhan articles were recovered from the petitioner; that respondent No.2 preferred an application dated 14.06.2006 before the learned J.M.F.C., Upleta for recovery of Stridhan articles and cash amount and the same came to be allowed by order dated 30.08.2006. Being aggrieved and dissatisfied with the order dated 30.08.2006 passed by the learned J.M.F.C., Upleta in allowing the application of respondent No.2 for possession of Stridhan articles and cash amount, the petitioner preferred Revision Application being Revision Application No. 56 of 2006 in the Court of Presiding Officer and 13th Fast Track Court, Gondal and the same came to be rejected vide order dated 13.10.2006. Being aggrieved and dissatisfied with the both the orders the petitioner has preferred the present petition under Articles 226 and 227 of the Constitution of India read with Section 482 of the Criminal Procedure Code.

(3.) Mr.Tushar Sheth, learned Advocate appearing on behalf of the petitioner has vehemently submitted that the impugned order dated 30.08.2006 by the learned J.M.F.C., Upleta has been passed without giving any opportunity to the petitioner. It is submitted that the learned J.M.F.C., Upleta issued notice dated 24.07.2006 to remain present on 28.07.2006, but the same was served upon the petitioner on 31.07.2006 through courier. Thereafter, no hearing has taken place and impugned order has been passed by the learned trial Court without giving any opportunity to the petitioner. It is submitted that aforesaid was pointed out to the learned Revisional Court, still the Revisional Court has not considered the same. It is submitted that even on going through Record and Proceedings it will be clear that there were no proceedings between 26.06.2006 to 16.10.2006 meaning thereby no hearing has taken place in between which fortifies the case on behalf of the petitioner that impugned order has be passed without giving any opportunity to the petitioner. It is submitted that though in the Record and Proceedings there is application dated 24.07.2006, there is no reference to the same in the Rojkam. It is submitted that the fact that only four days time was mentioned in the Notice period, that itself is suggestive of so many things. Therefore, it is requested to allow the present application and quash and set aside the orders passed by both the Courts below.