Allowed

Vaishali Vidhyadhar Sarang v. Sandhya Mahendra Naik and Anr.

Bombay HC12 Oct 2018ALP/109/2016

Case brief

AI extract

What is this about?

Single judge criminal application allowed. High Court quashed trial court's order dismissing complaint for want of prosecution. Court held dismissal unjustified as appellant's absence resulted from wrongly noted adjournment dates; accused were also absent those days. Case restored for trial.

What did the court decide?

Impugned order of 01/10/2015 quashed; complaint restored to trial court for disposal with records returned.

Vaishali Vidhyadhar Sarang Vs Sandhya Mahendra… — Civil Procedure and Limitation | Bombay HC (2018)

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4.ALP.109.16.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPLICATION NO.109 OF 2016

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Mrs. Vaishali Vidhyadhar Sarang

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… Applicant

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V/s.

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Mrs. Sandhya Mahendra Naik & Ors.

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... Respondents

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Mr. Swapnil Bhende i/b. Mr.A.S.Khandeparkar, Advocate for the Applicant.

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None for respondent Nos.1 & 2.

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Mr. S.V. Gavand, APP for respondent No.3/State.

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CORAM : A.M.BADAR, J.

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DATED : 12^th OCTOBER 2018.

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P.C. :

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On 6^th June 2018, the notice of final disposal was issued to

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the respondents considering the fact that the impugned order is

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passed under Section 256 of the Code of Criminal Procedure, dismissing the complaint alleging the offences punishable under Sections 403 and 406 read with Section 34 of the Indian Penal

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Aarti Palkar

4.ALP.109.16.doc

Code. Today, the learned advocate appearing for respondent Nos.1 and 2 is absent. The learned APP appears for respondent No.3/State.

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Heard. Leave, as prayed, is granted. Admit. Heard finally in view of notice of final disposal dated 6^th June 2018.

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The learned counsel appearing for the appellant/original complainant submits that the appellant/original complainant was regularly attending the learned trial Court since beginning. However, the respondents/original accused were not regular in attending the learned trial Court. Therefore, the complaint used to be adjourned time and again. The learned counsel further argued that even on 5^th May 2015, the appellant/original complainant was present and the respondents/original accused were absent, and therefore, the complaint was adjourned to 21^st July 2015. However, the appellant/original complainant had noted adjourned date incorrectly as 21^st January 2015. That is how he remained absent on subsequent date resulting in dismissal of the complaint for want of prosecution.

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I have considered the submissions so advanced and also

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Aarti Palkar

4.ALP.109.16.doc

perused the record and proceedings. Duly sworn application and its contents and averments show that the appellant/original complainant noted adjourned date wrongly as 21^st December 2015 and that is how, the complaint came to be dismissed on 1^st October 2015.

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Perusal of order-sheet maintained by the learned trial Court

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goes to show that the appellant/original complainant was regularly attending the dates of hearing before the learned trial Court. However, after 5^th May 2015 he is marked absent on three occasions i.e. on 21^st July 2015, 29^th September 2015 and 1^st October 2015. This absence is attributable certainly to the wrong noting of the adjourned date. That apart, even accused persons were also absent on these three dates.

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Then the accused themselves were absent on 1^st October 2015. The learned trial Court ought not to have dismissed the complaint for want of prosecution, considering the fact that the appellant/original complainant was regular in attending the learned trial Court in past prior to 5^th May 2015.

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In this view of the matter, the appeal deserves to be

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Aarti Palkar

4.ALP.109.16.doc

allowed. Hence, the order.

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- : ORDER : -

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i) The appeal is allowed.

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ii) The impugned order dated 1^st October 2015 passed by the learned Additional Chief Metropolitan Magistrate, 5^th Court, Dadar, Mumbai, below Exhibit 1 in Case No.12/SW/2006 is quashed and set aside.

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iii) The said complaint case is restored to the file of the learned trial Court for disposal, according to law.

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iv) Record and Proceedings be sent back to the learned trial Court fourthwith.

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v) The appeal is accordingly disposed off.

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(A.M.BADAR J.)

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Aarti Palkar

Vaishali Vidhyadhar Sarang v. Sandhya Mahendra Naik and Anr.

Case brief

What is this about?

What did the court decide?

Vaishali Vidhyadhar Sarang v. Sandhya Mahendra Naik and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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