1. The present petition under Article 227 of the Constitution of India has been preferred by the petitioner herein – original complainant to quash and set aside the order dated 23/08/2006 passed by learned Judicial Magistrate, First Class, Borsad below Exh.1 in Criminal Case No.940 of 2005 in dismissing the same for default on the ground that on the day on which the matter was kept for hearing, the petitioner herein – original complainant remained absent.
2. Mr.Saiyed, learned advocate appearing on behalf of the petitioner herein – original complainant has vehemently submitted that as such the matter was adjourned to 21/09/2006. However, thereafter subsequently without knowledge of the petitioner herein – original complainant, the same was preponed and changed to 23/08/2006 and, therefore, on that day i.e. on 23/08/2006, the petitioner herein – original complainant did not remain present. In support of his above submission that the matter was in fact earlier adjourned to 21/09/2006 and thereafter it was preponed to 23/08/2006, he has produced on record xerox copy of the Rojkam of the complaint. It is further submitted that by and large on all the occasions, the complainant was remained present. Learned Magistrate has observed that the complainant is not remaining present is not accurate. Therefore, it is requested to allow the present petition.
3. Mr.Kalpesh Gurnani, learned advocate appearing for Mr.Ankit Bachani, learned advocate appearing on behalf of the original complainant is not in a position to dispute the fact that earlier the matter was adjourned to 21/09/2006. However, thereafter the same was changed to 23/08/2006. Nothing is on recored that change of date of adjournment from 21/09/2006 to 23/08/2006 was communicated to the complainant and/or his advocate. Considering the above, he has requested to pass an appropriate order.
4. Mr.L.B.Dabhi, learned Additional Public Prosecutor appearing on behalf of the respondent-State has requested to pass an appropriate order in the facts and circumstances of the case.
5. Having heard learned advocates appearing on behalf of the respective parties and considering the xerox copy of the Rojkam of the complaint, it appears that on 10/08/2006, the complaint was adjourned to 21/09/2006. However, as reflected from the Rojkam, the same was changed to 23/08/2006. Nothing in on record to show that intimation was given to the complainant and/or his advocate about change of date of adjournment. Therefore, the complainant did not remain present on 23/08/2006 and on that day, learned Magistrate has dismissed the said complaint on the ground that the complainant is not remaining present. From Rojkam, it appears that on number of occasions, the complainant was remained present. Therefore, observation made by learned Magistrate that the complainant is not remaining present is not accurate. Considering the above, the order dated 23/08/2006 passed by learned Magistrate cannot be sustained and the same deserves to be quashed.
6. In view of the above and for the reasons stated hereinabove, the petition succeeds. The order dated 23/08/2006 passed by learned Judicial Magistrate, First Class, Borsad below Exh.1 in Criminal Case No.940 of 2005 is hereby quashed and set aside. Criminal Case No.940 of 2005 is ordered to be restored to the file of learned Judicial Magistrate, First Class, Borsad and now, learned Judicial Magistrate, First Class, Borsad to proceed further with the hearing of the Criminal Case No.940 of 2005 in accordance with law and on merits, at the earliest. Rule is made absolute accordingly.
[M.R.SHAH,J] *dipti