By filing this application, applicant/appellant/ original complainant has made following prayers:
"(A) YOUR LORDSHIP may be pleased to Admit and Allow this Application and further be pleased to permit the applicant to serve the notice issued by this Hon'ble Court on the Opponent/Respondent No. 2 by affixing the same at the last known address of the Opponent/Respondent No. 2 in the interest of justice;
(B)Your Lordship may be pleased to pass other and further orders, as may be deemed just and proper in the facts and circumstance of the present case."
I have heard learned advocate Mr. Buch for the applicant at length and in great detail. He submitted that the opponent is avoiding service of the notice of this proceeding. Therefore, the notice be served by affixing it at the last known residence of opponent/respondent no. 2. He relied on the decision in case of M/s. Mac Charles (I) Ltd. Vs. Chandrashekar & anr reported in 2005 Cr.L.J. 3700.
It appears that the applicant challenged the judgment and order of acquittal passed by learned Judicial Magistrate First Class, Una on 18/7/2011 in Criminal Case no. 1137/2003. The applicant also filed Criminal Misc. Application no. 16080/2011 under section 378(4) of the Criminal Procedure Code, 1973 seeking Special Leave to appeal against the aforesaid judgment and order of acquittal. As there was delay in filing the appeal, applicant preferred Criminal Misc. Application no. 16082/2011 under section 5 of the Limitation Act for condonation of delay caused in preferring Criminal Misc. Application no. 16080/2011. This Court issued Rule. However, the Rule could not be served to the opponent and it returned unserved with the endorsement that the opponent has vacated the premises since last about three years. The serving Officer also recorded the statement of Ushaben Natwarlal staying in the premises, who also stated that her son has purchased the property before about three years and they have been stayed therein. As Rule could not be served to opponent, the applicant moved this application for serving the notice of Rule by affixing at the last known address of the opponent. In criminal Procedure Code, there is no provision to serve the notice by affixing at the last known address of the accused. In the decision M/s. Mac Charles (I) Ltd. Vs. Chandrashekar & anr reported in 2005 Cr.L.J. 3700, Karnataka High Court ruled that substitute service of summons by affixing is permissible in criminal trial, but such a mode has to be resorted to when the service of summons under sections 62, 63 and 64 can not be effective. In the facts of this case, the said decision can not be made applicable.
Learned advocate Mr. Buch also submitted that under Rule 343 of Gujarat High Court Rules 1983, the Court may pass such orders as it deemed fit if service of notice can not be effected within three months. In my view, this provision can not come to rescue of the applicant as the discretion is given to the Court to pass any order with regard to service of notice and this Court does not deem fit to exercise power under rule 343 and order service by affixing. Hence, this submission can not be accepted.
In view of the above, the application stands dismissed.
(BANKIM.N.MEHTA, J) asma Top