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CR.MA/7237/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 7237 of 2008
==========================================
AMBIKA
SUBMERSIBLE PUMP SERVICES - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
==========================================
Appearance :
MR
MAHENDRA K PATEL for Applicant(s) : 1,
MR MR
MENGDEY, APP for Respondent(s) : 1,
NOTICE SERVED BY DS for
Respondent(s) : 2,
MR UTKARSH B JANI for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 25/09/2008
ORAL
ORDER
1. What
is challenged in the present application under Section 482 of the
Code of Criminal Procedure is the order passed by the learned trial
Court dismissing the criminal complaint in absence of the
applicant-original complainant.
2. Learned
advocates appearing on behalf of the respondents has relied upon the
decision of this Court in the case of YOGESH BABULAL SHAH Vs K.S.
BHASIN AND ANR reported in 2005 (3) GLH 553 in support of
the submission that dismissing of the complaint would be considered
as an acquittal, and, therefore, appeal would be maintainable.
3. It
is observed by the learned Single Judge in the case of YOGESH
BABULAL SHAH Vs K.S. BHASIN AND ANR (supra)
that the order passed by the learned trial Court dismissing
the complaint for want of prosecution and non-availability of the
complainant in a private complaint has a result of acquittal and,
therefore, the following three options are available to the Court.
(i) the
present Revision Application can be dismissed observing that it
would not lie because the appeal is provided against the order of
acquittal even in the case of a private complaint;
(ii) that
this Court while dismissing this Revision Application can direct the
petitioner and observe that he may prefer an appeal against the
order of acquittal seeking leave of this Court and if need be, may
pray for condonation of delay caused in preferring the appeal,
especially in the background of the fact of pendency of the present
Revision Application, which is undisputedly filed in time i.e. in
prescribed period of limitation of 90 days and;
(iii) that
this Court may say that in view of the scheme of Section 439(5) of
the Code of Criminal Procedure, 1973, the present Revision
Application may be converted into an appeal against order the
acquittal putting an embargo that the petitioner shall have to
prefer an application praying leave to prefer appeal.
4. Considering
the above, Shri Mahendra Patel, learned advocate appearing on behalf
of the applicant seeks permission to withdraw the present application
with a liberty to prefer an appeal against the order of acquittal
and/or against the impugned order.
5. Permission
is accordingly granted. The application is dismissed with the above
liberty with an observation that this Court has not expressed any
opinion on merits and if an appeal is preferred, the same will be
considered and dealt with in accordance with law and on its own
merits. Notice is discharged.
(M.R.
SHAH, J.)
siji
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