1.0 Present application under Article 227 of the Constitution of India has been preferred by the applicant herein original complainant through post to quash and set aside the order passed by the learned Chief Judicial Magistrate, Jamangar dated 3.4.2006 passed in Criminal Case No.7029 of 2003 in dismissing the said complaint on the ground that on that day the complainant did not remain present for recording the evidence. The petitioner has also prayed to quash and set aside the order passed by the learned Revisional Court dated 23.8.2006 passed in Criminal Revision Application No.61 of 2006 in dismissed the same and confirming the order passed by the learned Chief Judicial Magistrate dismissing the said complaint.
2.0 Having heard Shri Hasit Joshi, learned advocate for respondent no.1 hereinoriginal accused and considering the impugned orders as well as even the averments and allegations in the present application, it appears that learned Magistrate has materially erred in dismissing the said complaint for want of prosecution. It appears that there was no mala fide intention on the part of the original complainant in not remaining present on that particular day for the purpose of recording evidence. It cannot be said that the applicant hereinoriginal complainant had deliberately remained absent and / or that he was not interested in prosecuting the accused. It should be borne in mind that it is the duty of the every Court to see that matters are decided on merits and so far as criminal cases are concerned, the person who has committed the offences are convicted. No accused can be permitted to take disadvantage and / or he cannot be acquitted on the technical ground. Under the circumstances, order passed by both the Courts below cannot be sustained and they deserve to be dismissed.
3.0 In view of the above and for the reasons stated above, present applicant succeeds. The order passed by the learned Chief Judicial Magistrate, Jamnagar dated 3.4.2006 passed in Criminal Case No.7029 of 2003 as well as impugned judgment and order passed by the learned Additional Sessions Judge, Fast Track Court, No.4, Jamnagar dated 23.8.2006 passed in Criminal Revision Application No.61 of 2006 are hereby quashed and set aside and the Criminal Case No. 7029 of 2003 is hereby restored to file. The learned Chief Judicial Magistrate, Jamnagar is directed to proceed further with the same. Rule is made absolute to the aforesaid extent. No cost. Registry is directed to send the writ of this order to the learned Chief Judicial Magistrate, Jamnagar immediately.
kaushik sd/ (M.R.SHAH, J.)