Allowed

Cosmo Films Ltd. v. Pradeep Diwakar Pathak and Another

Bombay HC25 Mar 2014APEAL/96/2014

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal from an order acquitting accused persons under Section 256 Cr.P.C. on the ground that the acquittal order was void ab initio as it was based on an unsigned order to issue process, rendering the complainant's appearance unnecessary to justify the disposal.

What did the court decide?

The appeal was allowed and S.C.C. No. 1897 of 2008 restored to the Judicial Magistrate, First Class, Aurangabad, for disposal according to law.

Cosmo Films Ltd. Vs Pradeep Diwakar Pathak and… — Civil Procedure and Limitation | Bombay HC (2014)

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( 1 ) crap96.14

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPEAL NO. 96 OF 2014

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Cosmo Films Ltd.

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..Appellant

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Versus

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Pradeep Diwakar Pathak & Anr.

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..Respondents

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Mr.A.D. Kasliwal, Advocate for the appellant.
Mr.B.N. Magar, Advocate for respondent No.1 – Absent.
Mr.A.S. Shinde, A.P.P. for respondent No.2/State.

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CORAM : P.N. DESHMUKH,J.
DATED :25.03.2014

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P.C. :-

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1.None for the respondent No. 1 though it appears
that learned advocate Mr. B.N. Magar had waived service
for respondent No.1. Thereafter, on last three dates the
matter was adjourned since none appeared for respondent
No.1, by giving last chance.

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2.The limited question involved in the appeal is
whether the learned Magistrate is justified in acquitting
the accused under the provisions of Section 256 of
Cr.P.C. holding that the complainant was absent.
According to the appellant, after recording of
verification statement, though the order of issuance of
process was attached to Exh.1, same was not signed by the
learned Magistrate. According to Roznama dated

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29.03.2011, it reveals that the order of issue of process
was passed and the matter was kept for appearance of the
accused on 19.05.2011 and accordingly summons were
issued. However, for considerable period, no report was
received and thus the appellant had filed application for
re-issue of summons on 14.02.2012. It further reveals
that though the order of issuance of process is not
passed and only on issuing summons, which appears to be
issued according to Roznama dated 29.03.2011 of which
reports were not received, on 22.11.2013 the complaint
appears to be disposed of under section 256 of Cr.P.C.
acquitting the respondents. After passing of order dated
22.11.2013, the appellant had filed application praying
to recall the order dated 22.11.2013. However, same was
rejected on 23.12.2013. On considering the facts involved
in the appeal, same is liable to be allowed in view of
the fact that presence of the applicant was in-fact not
necessary when order under section 256 of Cr.P.C. came to
be passed by the Trial Court, as the matter was for
passing orders by the learned Magistrate pertaining to
issue process.

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3.In that view of the matter, the appeal succeeds.
S.C.C. No. 1897 of 2008 stands restored on the file of
learned Judicial Magistrate, First Class, Aurangabad, for
its disposal according to law.

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( 3 ) crap96.14

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4. In view of the facts noted above, it thus appears that learned Trial Court should have had revived its dismissal order as on the face of it, was void abinitio . However, it appears that the learned Trial Court without considering the above aspect had simply rejected the application for restoration filed by the appellant/original complainant.

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[P.N. DESHMUKH,J.]

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snk /2014/MAR14/crap96.14

Cosmo Films Ltd. v. Pradeep Diwakar Pathak and Another

Case brief

What is this about?

What did the court decide?

Cosmo Films Ltd. v. Pradeep Diwakar Pathak and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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