1. The present Special Criminal Application under Article 227 of the Constitution of India has been preferred by the petitioner-original complainant to quash and set aside the impugned order dated 01/03/2007 passed by the learned Additional Sessions Judge, Ahmedabad (Rural) in Criminal Miscellaneous Application No. 159/2007 by which the learned revisional Court has dismissed the said application submitted by the petitioner to condone the delay occurred in filing the Revision Application, which was filed against the order passed by the learned Magistrate dismissing the Complaint under Section 203 of the Code of Criminal Procedure.
2. The facts leading to the present Special Criminal Application in a nutshell are under;
2.1. The petitioner filed a private Complaint under Section 190 of the Code of Criminal Procedure against respondent no. 2- original accused for the offences punishable under Section 379 of the Indian Penal Code. The learned Judicial Magistrate First Class, Sanad by order dated 21/04/2004 dismissed the said Complaint under Section 203 of the Code of Criminal Procedure. It appears that thereafter instead of filing Revision Application against the order passed by the learned Magistrate dismissing the aforesaid Complaint, the petitioner lodged FIR with the Sanad Police Station for the very offence for which the Complaint was filed, which was registered as C.R. No. I 126/2004. Not only the said Complaint was registered as FIR, subsequently after conclusion of the investigation, the Investigating Officer also filed the chargesheet against respondent no. 2-original accused in the Court of learned Judicial Magistrate First Class, Sanand, which was numbered as Criminal Case No. 787/2004. Being aggrieved and dissatisfied with the FIR, being C.R. No. I 126/2004 registered with Sanad Police Station and the chargesheet filed by the Investigating Officer in the said Complaint, being Criminal Case No. 787/2004, respondent no. 2 herein preferred Criminal Miscellaneous Application No. 1764/2006 before this Court contending interalia that the said FIR can be said to be second FIR/Complaint, which is not maintainable. The learned Single Judge accepted the above considering the decision of the Hon'ble Supreme Court in the case of T.T. Antony Vs. State of Kerala reported in AIR 2001 SC 2637 and allowed the said application and quashed and set aside the FIR, being C.R. No. I 126/2004 and the further proceedings initiated thereto vide judgment and order dated 09/01/2007. It appears that the said order came to be challenged by the petitioner before the Hon'ble Supreme Court and the Hon'ble Supreme Court dismissed the same and confirmed the order passed by the learned Single Judge. It appears that thereafter having realized that instead of registering the FIR the petitioner ought to have challenged the order passed by the learned Judicial Magistrate First Class, Sanad dated 21/04/2004 dismissing the Complaint, the petitioner preferred Revision Application before the learned Sessions Court, Ahmedabad (Rural). As there was delay of approximately three years in preferring the Revision Application, Criminal Miscellaneous Application No. 159/2007 was submitted by the petitioner requesting to condone the delay in preferring the Revision Application and by impugned order the learned Additional Sessions Judge, Ahmedabad (Rural) dismissed the said application and refused to condone the delay by observing that the order passed by this Court in Criminal Miscellaneous Application No. 1764/2006 dated 09/01/2007 is considered and, therefore, he does not see any reason to condone the delay. Hence, being aggrieved and dissatisfied with the impugned order passed by the learned Additional Sessions Judge, Ahmedabad (Rural) dated 01/03/2007 in Criminal Miscellaneous Application No. 159/2007, the petitioner-original complainant has preferred the present Special Criminal Application under Article 227 of the Constitution of India.
3. Shri Vikram Thakor, learned advocate appearing on behalf of the petitioner has vehemently submitted that the learned revisional Court has materially erred in not condoning the delay in preferring the Revision Application. It is submitted that as such the petitioner did not prefer the Revision Application earlier, as after the Complaint was dismissed by the learned Magistrate. bonafidely he filed the Complaint in the Police Station, which was registered as FIR and not only that even the same was investigated by the concerned Investigating Officer and respondent no. 2-original accused came to be chargesheeted and, therefore, as such there was no reason/cause for the petitioner at that stage to prefer the Revision Application. It is submitted that however when the FIR filed by the petitioner and the chargesheet against respondent no. 2, came to be quashed and set aside by this Court on the ground that the same was a second Complaint, ith became necessary for the petitioner to prefer the Revision Application against the order passed by the learned Magistrate dismissing the Complaint, the petitioner preferred Criminal Miscellaneous Application No. 159/2007 for condoning the delay in preferring the Revision Application. It is submitted that as such no cogent reasons have been given by the learned revisional Court in dismissing the application submitted by the petitioner to condone the delay. It is further submitted that if the delay is not condoned the petitioner would be seriously prejudiced and will not be in a position to make any submission on merits of the application and the averments made in the Complaint. It is submitted that as such subsequently having found prima facie case, respondent no. 2 was chargesheeted by the concerned Investigating Officer in the FIR lodged by the petitioner, however, the same came to be quashed and set aside by this Court solely on the ground that the same was a second Complaint. Under the circumstances, the learned revisional Court ought to have given an opportunity to the petitioner to submit the case on merits rather than non-suiting him on the technical ground of delay. Making the above submission, it is requested to allow the present petition.
4. The present petition is vehemently opposed by Shri M.B. Gandhi, learned advocate appearing on behalf of respondent no. 2-original accused. It is submitted that considering the huge delay of approximately three years, which was not properly explained, the learned revisional Court has not committed any error and/or illegality in dismissing the application submitted by the petitioner to condone the delay. It is further submitted by Shri Gandhi, learned advocate appearing on behalf of respondent no. 2-original accused that the Revision Application was preferred by the petitioner after the decision of this Court dismissing the Second Complaint quashing and setting aside the FIR treating the same as second Complaint for the same offence and in the meantime, nobody prevented the petitioner from filing the Revision Application. It is submitted that the petitioner ought to have preferred the Revision Application earlier instead of filing the second Complaint/FIR and, therefore, it is submitted that the Revision Application is filed belatedly and, therefore, the learned revisional Court has not committed any error and/or illegality in dismissing the application submitted by the petitioner to condone the delay, which calls for the interference of this Court in exercise of powers under Article 227 of the Constitution of India. Making the above submissions, it is requested to dismiss the present petition.
5. Shri L.B. Dabhi, learned APP appearing on behalf of the respondent-State has requested to pass an appropriate order considering the facts and circumstances of the case.
6. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that initially the petitioner filed private Complaint against respondent no. 2-original accused, which came to be dismissed by the learned Magistrate under Section 203 of Code Criminal Procedure. Instead of filing the Revision Application against the said order, the petitioner filed Complaint in the police Station, which came to be registered as FIR. Not only that even the said FIR came to be investigated by the concerned Investigating Officer and having found prima facie case against respondent no. 2-original accused, the Investigating Officer submitted the chargesheet against respondent no. 2 in the Court of learned Judicial Magistrate First Class, Sanad and the same was numbered as Criminal Case No. 787/2004. Therefore, when after the private Complaint came to be dismissed by the learned Magistrate under Section 203 of the Code of Criminal Procedure, which was on the very day on which the Complaint was filed and without even holding any inquiry under Section 202 of the Code of Criminal Procedure, when subsequently the Complaint filed by the petitioner with the Sanad Police Station came to be registered as FIR and it was investigated and the chargesheet was filed, there was no reason and/or cause for the petitioner to prefer Revision Application against the order passed by the learned Judicial Magistrate First Class dismissing the Complaint under Section 203 of the Code of Criminal Procedure. Only when the subsequent proceedings came to be terminated by this Court on the ground that the subsequent FIR can be said to be second Complaint and consequently when the learned Single Judge passed an order quashing and set aside the proceedings and the chargesheet, the petitioner preferred Revision Application against the order passed by the learned Judicial Magistrate First Class, Sanand dated 21/04/2004 dismissing the private Complaint under Section 203 of the Code of Criminal Procedure. Considering the aforesaid facts and circumstances of the case, the learned revisional Court has materially erred in refusing to condone the delay in preferring the Revision Application against the order passed by the learned Judicial Magistrate First Class, Sanand dated 21/04/2004. It is required to be noted that immediately after the order passed by the learned Single Judge in Criminal Miscellaneous Application No. 1764/2006, the petitioner had preferred the Revision Application. It is required to be noted that on one hand the subsequent proceedings/FIR and the chargesheet came to be quashed and set aside by this Court on the ground that the same was a second Complaint and, therefore, the same were not maintainable and on the other hand when the Revision Application has been preferred challenging the order passed by the learned Magistrate dismissing the Complaint in exercise of the powers under Section 203 of the Code of Criminal Procedure, the petitioner is non-suited on the technical ground of delay and, therefore, the petitioner has to suffer on both the ends and, therefore, by not condoning the delay in preferring the Revision Application the petitioner has been prejudiced and the petitioner is suffering great hardship rather than respondent no. 2. Under the circumstances, the learned revisional Court ought to have condoned the delay in preferring the Revision Application and ought to have given one additional opportunity to submit the case on merits rather than non suiting him on the technical ground of delay. It is required to be noted that if the delay is condoned, no prejudice shall be caused to respondent no. 2- original accused as ample opportunity will be given to him to submit the case on merits. On the other hand, if the delay is not condoned, in that case, the petitioner would be deprived of submitting his case on merits. Under the circumstances, the impugned order passed by the learned revisional Court in refusing to condone the delay deserves to be quashed and set aside.
7. In view of the above and for the reasons stated hereinabove, the present petition succeeds. The impugned order passed by the learned Additional Sessions Judge, Ahmedabad (Rural), Ahmedabad dated 01/03/2007 in Criminal Miscellaneous Application No. 159/2007 is hereby quashed and set aside and the delay caused in preferring the Revision Application challenging the order passed by the learned Judicial Magistrate First Class, Sanand dated 21/04/2004 in Inquiry Case No. 6/2004 is hereby condoned and consequently now the learned revisional Court to decide and dispose of the said Revision Application in accordance with law and on its own merits. Rule is made absolute accordingly.
(M.R. SHAH, J.) siji