Gujarat High Court
Gujarat vs State on 3 December, 2005
Author: M.R. Shah
Bench: M.R. Shah
SCR.A/2190/2009 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 2190 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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GUJARAT
LABOUR WELFARE BOARD THRO' K G BHATT - Petitioner(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================
Appearance :
MR
RITESH B DAVE for
Petitioner(s) : 1,
MS SJ SHEIKH for Petitioner(s) : 1,
MR LB DABHI,
APP for Respondent(s) : 1,
NOTICE SERVED for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 07/02/2012
ORAL
JUDGMENT
1. The present Special Criminal Application under Article 227 of the Constitution of India has been preferred by the petitioner-original complainant to quash and set aside the order passed by the learned Metropolitan Magistrate, Court No. 4, Ahmedabad dated 03/12/2005 below Exh. 1 in Inquiry Case No. 24/1998 dismissing the Complaint for non prosecution on the ground that the petitioner-original complainant is not remaining present and, therefore, the petitioner-original complainant has no interest in proceeding further with the Complaint. The petitioner has also challenged the impugned judgment and order dated 31/05/2007 passed by the learned Additional Sessions Judge, Fast Track Court City Sessions Court, Ahmedabad in Criminal Revision Application No. 340/2006 in dismissing the said Revision Application confirming the order passed by the learned Metropolitan Magistrate dismissing the aforesaid Complaint.
2. The petitioner-Gujarat Labour Welfare Board filed one private Complaint against respondent no. 2-original accused in the Court of learned Metropolitan Magistrate, Court No. 4, Ahmedabad for the offences punishable under Sections 406, 409 and 420 of the Indian Penal Code, which was numbered as Inquiry Criminal Case No. 24/1998. Initially the learned Magistrate passed an order for inquiry under Section 202 of the Code of Criminal Procedure and directed the Police Inspector, Gandhinagar Police Station, Ahmedabad to inquire into the matter/investigate the case and submit the report. It appears that thereafter the concerned Investigating Officer submitted the report and the learned Metropolitan Magistrate issued notice upon the original complainant. It is required to be noted that at the relevant time one Shri Purshotam Mohanlal Lehva, who was serving as Assistant Welfare Commissioner (Administration) was authorized to file the said Complaint and, therefore, the said Complaint was filed by him for and on behalf of Gujarat Labour Welfare Board and, therefore, the learned Magistrate issued the notice/summons upon the said Shri Purshotam Mohanlal Lehva-original complainant. However, after filing of the said Complaint he retired on attaining the age of superannuation on 30/09/1998 and, therefore, though the summons was served upon him he did not care to appear before the concerned learned Magistrate and, therefore, nobody represented the petitioner and, therefore, by order dated 03/12/2005 the learned Metropolitan Magistrate Court No. 4, Ahmedabad dismissed the said Complaint/Inquiry Case No. 24/1998 by observing that the original complainant is not interested in proceeding further with the Complaint. Having come to know about the aforesaid order and being aggrieved and dissatisfied with the order passed by the learned Metropolitan Magistrate, Court No. 4, Ahmedabad in dismissing the Complaint, being Inquiry Case No. 24/1998 the petitioner-original complainant preferred Criminal Revision Application before the learned Sessions Court, Ahmedabad, being Criminal Revision Application No. 340/2006 and the learned revisional Court by impugned order dismissed the said application confirming the order passed by the learned Metropolitan Magistrate dismissing the said Complaint. Being aggrieved and dissatisfied with the aforesaid two orders passed by both the Courts below the petitioner-original complainant has preferred the present Special Criminal Application under Article 227 of the Constitution of India.
3. Shri I.M. Pandya, learned advocate appearing on behalf of the petitioner has vehemently submitted that the learned Metropolitan Magistrate has materially erred in dismissing the said Complaint by observing that the original complainant is not interested in proceeding further with the Complaint. It is submitted that as Shri Purshotam Mohanlal Lehva after filing the Complaint in the year 1998 retired in the month of September, 1998 and, therefore, though the summons were issued by the learned Magistrate he did not care to appear before the learned Magistrate and, therefore, nobody represented the petitioner before the learned Magistrate. It is submitted that as such the petitioner-original complainant was very much interested in prosecuting the original accused and to proceed further with the Complaint, however, for the aforesaid reason nobody appeared before the learned Magistrate and represented the petitioner. It is submitted that as such there was no other reason and/or malafide intention on the part of the petitioner in not appearing before the learned Magistrate. It is submitted that the aforesaid aspect has not been properly appreciated and considered by the learned revisional authority. It is submitted that too technical view has been taken by the revisional authority confirming the order passed by the learned Metropolitan Magistrate and, therefore, it is requested to allow the present petition. However, the impugned order can be remanded to the learned Magistrate and the learned Magistrate can be directed to consider Inquiry Case No. 24/1998 in accordance with law and on its own merits after giving an opportunity to the petitioner-original complainant.
4. Though served, nobody appears on behalf of respondent no. 2-original complainant.
5. Shri L.B. Dabhi, learned APP appearing on behalf of the respondent-State has requested to pass an appropriate order considering the facts and circumstances of the case.
6. Heard Shri I.M. Pandya, learned advocate appearing on behalf of the petitioner-original complainant and Shri L.B. Dabhi, learned advocate appearing on behalf of the respondent-State and considered the impugned orders. It is required to be noted that the learned Metropolitan Magistrate has dismissed the said Complaint, being Inquiry Case No. 24/1998 on ground that though served nobody appears on behalf of the original complainant and further observing that the original complainant is not interested in prosecuting further with the Complaint. However, it is required to be noted that the summons/notice issued by the learned Metropolitan Magistrate was issued and served upon one Shri Purshotam Mohanlal Lehva-original complainant, who filed the Complaint for an on behalf of the petitioner-Gujarat Labour Welfare Board. It appears that the said Shri Purshotam Mohanlal Lehva has retired as Assistant Welfare Commissioner (Administration) on 30/09/1998 on attaining the age of superannuation. Under the circumstances, as he had already retired he did not take any proper care to inform either the petitioner and/or even he has not appeared before the learned Magistrate. Under the circumstances, nobody could appear before the learned Magistrate in the aforesaid Complaint. Considering the aforesaid facts and circumstances of the case, it appears that it cannot be said that there was deliberate and/or willful default on the part of the petitioner-original complainant not to proceed further with the Complaint and/or it cannot be said that the petitioner was not interested in proceeding further with the Complaint. Under the circumstances, one opportunity is to be given to the petitioner-original complainant to proceed further with the Complaint and prosecute the original accused. The aforesaid aspect has not been properly appreciated and considered by the learned revisional Court. Considering the aforesaid facts and circumstances of the case, the learned revisional Court ought to have allowed the Criminal Revision Application and quashed and set aside the order passed by the learned Metropolitan Magistrate and the revisional authority ought to have given an additional opportunity to proceed further with the Complaint. It is required to be noted that on the technical ground and for the default of the original complainant, who filed the Complaint on behalf of Gujarat Labour Welfare Board, who subsequently did not appear before the learned Magistrate as he had retired, the said benefit cannot be given to the original accused. The endeavor of the Court must be to see that if the original accused has committed the offence he must be punished and to find out the truth. The Complaint is not required to be dismissed on the technical ground. Under the circumstances, the impugned order passed by the learned Metropolitan Magistrate confirmed by the learned revisional Court deserves to be quashed and set aside.
7. In view of the above and for the reasons stated hereinabove, the present petition succeeds. The impugned order passed by the learned Metropolitan Magistrate, Court No. 4, Ahmedabad dated 03/12/2005 below Exh. 1 in Inquiry Case No. 24/1998 as well as the impugned judgment and order passed by the learned Additional Sessions Judge, Fast Track Court City Sessions Court, Ahmedabad dated 31/05/2007 in Criminal Revision Application No. 340/2006 are hereby quashed and set aside and the matter is remanded to the learned Metropolitan Magistrate and the learned Magistrate now to consider the said Inquiry Case and proceed further with the same in accordance with law and on its own merits from the stage at which the proceedings were on 03/12/2005. It will be open for the petitioner to submit an appropriate application for substituting the complainant, who was authorized to file the Complaint and who had earlier filed the Complaint is rejected. As and when such an application is made the same be considered by the learned Magistrate in accordance with law and on its own merits. Rule is made absolute to the aforesaid extent.
(M.R. SHAH, J.) siji