Allowed

Atul v. Santosh Bhandari

Chhattisgarh HC2 Jan 2023CRMP/2110/2022

Case brief

AI extract

What is this about?

The High Court heard an application for condonation of delay to file a petition in special leave to appeal against an acquittal following a dismissal of a criminal complaint. The court granted leave to appeal and quashed the impugned order, directing the trial court to recall the matter and decide on merits after proper procedure.

What did the court decide?

Impugned order setting aside; prosecution directed to proceed on merits after payment of process fee and appearance of respondents.

Atul Vs Santosh Bhandari — Civil Procedure and Limitation | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR CRMP No. 2110 of 2022

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Atul, S/o Late Shri Kishore Gupta, Aged About 61 Years, Occupatioon Business, R/o A-301, Golchha Residency, Shankar Nagar, Raipur, District Raipur Chhattisgarh.

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---- Petitioner

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Versus

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Santosh Bhandari Adult, Occupation Business, R/o C-53, Sector-5, Devendra Nagar, Raipur, District- Raipur Chhattisgarh.

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Vijay Bhandari Adult, Occupation Business, R/o C-53, Sector-5, Devendra Nagar, Raipur, District Raipur Chhattisgarh.

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Nitesh Bhandari Adult, Occupation Business, R/o C-53, Sector-5, Devendra Nagar, Raipur, District- Raipur Chhattisgarh.

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---- Respondents

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For Petitioner : Mr. Abhishek Vinod Deshmukh, Adv.

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Hon'ble Smt. Justice Rajani Dubey

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Order on Board

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02.01.2023

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Heard on I.A. No. 01/20222 which is an application for condonation of delay of 17 days in filing the petition.

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On due consideration and the reasons mentioned therein, the same stands allowed and the delay of 17 days in filing the petition is hereby condoned.

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Also heard on application under Section 378(4) of Cr.P.C. for grant of special leave to file an appeal.

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On due consideration, leave is granted.

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This petition is preferred against the order of acquittal

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dated 20.09.2022 passed by the learned Judicial Magistrate First Class, Raipur, District- Raipur (C.G.), in Complaint Case No.1549/2022 whereby the learned trial Court has acquitted the respondents/accused while dismissing the case for want of prosecution.

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This petition is nothing but restoration of complaint case which is dismissed in default. Therefore, appearance of the respondents is not compulsory because they will get opportunity of hearing before the trial Court.

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In the matter of Associated Cement Co. Ltd. Vs.

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Keshvanand reported in (1998) 1 SCC 687 , Hon'ble

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the Apex Court held as under:-

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“18. Reading the Section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the Section. First is, if the court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. 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 day for progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. 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 day 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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Again, in the matter of Mohd. Azeem Vs. A.

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Venkatesh & another reported in (2002) 7 SCC

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726 , Hon'ble the Apex Court held that in a proceeding under the Act, 1881, the single default in appearance on the part of the complainant, the dismissal of the complaint case is not proper, legal and justified.

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Dismissal of the complaint case was not the only option before the trial Court. The trial Court could have adjourned the case to some other date as per the provisions of Section 256(1) CrPC. The Court should have provided opportunity to pay process fee for appearance of the respondents, it should not have sent to record room without deciding issues between the parties but that is not done in the present case, therefore, the order passed by the trial Court is not sustainable.

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Accordingly, orders passed by the court below is set aside allowing the petition. The trial Court is directed to proceed with the case after providing opportunity to the petitioner to pay process fee and after appearance of the respondent, the case shall be decided on merit.

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The petitioner is directed to appear before the trial Court on 6^th February, 2023 for further proceedings.

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Sd/(Rajani Dubey) Judge

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Ruchi

Atul v. Santosh Bhandari

Case brief

What is this about?

What did the court decide?

Atul v. Santosh Bhandari

Case brief

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