Allowed

D. R. Brothers v. Indian Sales Corporation and Anr.

Bombay HC17 Jul 2013APPLN/205/2012

Case brief

AI extract

What is this about?

The single judge allowed the appeal against the disposal of a criminal complaint for want of prosecution. Relying on Supreme Court precedent, the court remitted the matter to the lower court for proceedings from the stage of dismissal on the condition of the complainant's presence.

What did the court decide?

Leave to appeal granted; matter remitted to Judicial Magistrate First Class, Sangli to proceed from the stage of dismissal with the complainant's presence.

D. R. Brothers Vs Indian Sales Corporation and Anr. — Criminal Trial and Appeal | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPLICATION NO. 205 OF 2012

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D.R. Brothers ... Applicant.

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Versus Indian Sales Corporation & anr. ... Respondents. ---

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Ms. Varsha Kapse h/f. Mr. Umesh Mankapure, advocate for Applicant.

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Mr. T.S. Ingale, advocate for respondent No. 1.

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Ms. P.P. Shinde,, APP for State.

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CORAM : SMT. SADHANA S. JADHAV , J DATE : JULY 17, 2013

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P.C.:

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1 Heard the learned Counsel for applicant and learned Counsel for the respondent No. 1. Perused the papers.

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2 This is an application seeking leave to appeal against the order passed by the Judicial Magistrate First Class, Sangli in Summary Criminal Case No. 1734 of 2006 under Section 256 of the Code of Criminal Procedure, 1973. The present applicant is the original complainant. Leave is granted. The Criminal Application is disposed of.

Talwalkar

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3 Appeal is admitted and the matter is taken up for final hearing with the consent of the parties.

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4 The learned Counsel for the applicant has placed on record the roznama of the proceedings. It appears that the process was issued against the accused on 9/10/2006. The summons were issued in 2008. The applicant i.e. original complainant has prosecuted the case diligently. It appears from the roznama that the complainant has remained absent on 24/12/2009, 9/3/2010, 5/5/2010. On 7/6/2010 the complainant as well as the accused were absent. The advocate representing the accused had filed an application seeking exemption. The complainant was absent on 15/6/2010. Hence, on 28/6/2010 the Magistrate was pleased to pass an order under Section 256 of the Code of Criminal Procedure, 1973 and has dismissed the complainant. The affidavit was filed by the complainant. It is true that the Magistrate could not have waited for the presence of the applicant.

Talwalkar

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5 The learned Counsel for the applicant has placed reliance upon the Judgment of the Hon'ble Apex Court in the case of Associated Cement Co. Ltd. v/s. Keshvanand reported in (1998) 1 SCC 687. The Hon'ble Apex Court has specifically held that the powers under Section 256 and 249 of the Code of Criminal Procedure, 1973 must be exercised judicially and fairly. The Hon'ble Apex Court has held that-

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“When the court notices that the complainant is absent on a particular day the court must consider whether personal attendance of the complainant is essential on that date for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason.”

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It has been further held that -

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“If the situation does not justify the case being adjourned the court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that date was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must therefore be exercised judicially and fairly without impairing the cause of administration of criminal justice.”

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6 The Counsel for the applicant submits that the complainant could not remain present due to inevitable circumstances and hence, he has lost the opportunity of proving his complaint. In view of this, the learned Counsel for the applicant submits that the complainant deserves a fair opportunity to proceed with the case against the accused.

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7 In the circumstances, the appeal is allowed. The matter is remitted to the Court of Judicial Magistrate First Class, Sangli.

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8 Counsel for the applicant submits that the complainant would remain present before the Court on 31/7/2013.

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9 The learned Magistrate seized with the matter shall consider the case and proceed with it from the stage when it was dismissed for want of prosecution.

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( SMT. SADHANA S. JADHAV , J)

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Talwalkar

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D. R. Brothers v. Indian Sales Corporation and Anr.

Case brief

What is this about?

What did the court decide?

D. R. Brothers v. Indian Sales Corporation and Anr.

Case brief

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What did the court decide?

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