DATTU SANTUPPA PATIL Vs. NAGOJI KALLAPPA PATIL

JUDGEMENT

(1.) THIS is an appeal preferred by the heir of the original complainant and is directed against an order of acquittal passed by the Additional Sessions Judge, Kolhapur in Criminal Appeal No. 143 of 1982. The present appellant was the complainant in Criminal Case No. 11 of 1980 which was for a charge against the present respondents Nos. 1 to 10 for offences under sections 379, 447 read with 34 Indian Penal Code. The learned trial Magistrate convicted the accused and sentenced them to suffer simple imprisonment for one day till the rising of the Court and to pay a fine of Rs. 25/- each in default simple imprisonment for seven days. Against this conviction, the accused filed Criminal Appeal No. 143 of 1982 which came to be allowed by the learned Additional Sessions Judge on 16th July 1983. As a result, the conviction of the present respondents Nos. 1 to 10 was set aside.

(2.) THE principal ground on which the present appeal has been preferred by the original complainant who is the appellant (now represented by his heir) is that at the time when the appeal was heard by the learned Additional Sessions Judge, Kolhapur, that the requisite notice in respect of the same had not been served on the original complainant. It is pointed out that there cannot be any dispute with regard to this aspect of the record because the complainant was not even made a party to the appeal in question which was principally why no such notice came to be served.

(3.) MISS Shirke, learned advocate appearing on behalf of the appellant has relied on the provisions of section 385 (1) (iii) of the Criminal Procedure Code and contended that after the new Code i. e. , the Code of 1973 was promulgated, that the provisions of section 385 are mandatory and that consequently, non-compliance with the provisions of that section would vitiate any order passed in the appeal. It is the contention of Miss Shirke that the 41st Law Commission, while recommending certain changes with regard to the new Code of Criminal Procedure, did consider it obligatory to include the provision in section 385 that notice would have to be served on the original complainant. Undoubtedly, this is a salutary provision because the original complainant is the party who is aggrieved and who has set the law in motion and is certainly one of the necessary parties in any appeal proceedings. Miss Shirke, has relied on the decision reported in (Pichaimuthu v. M/s. Winrer Knitting Co.) 1972 Criminal Law Journal, page 91 as also the cases reported in 1986 (2) Maharashtra Law Reports, page 258, (Dina Nath v. Bithal Nath) 1980 Allahabad Law Journal, page 326 and a decision of this Court, reported in (Abdul Kareem v. Iswarappa and other) 1983 Criminal Law Journal, page 114. In all these decisions, the courts have uniformly expressed the view that the provisions of section 385 (1) (iii) are mandatory and that, consequently, if the appeal comes to be disposed of without hearing the original complainant, that the order in question will have to be set aside and the matter remanded for a fresh hearing.