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CR.RA/185/2009 1/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 185 of 2009
With
CRIMINAL
MISC.APPLICATION No. 1888 of 2008
In
CRIMINAL
REVISION APPLICATION No. 383 of 2007
With
CRIMINAL
REVISION APPLICATION No. 383 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE MD SHAH
=========================================================
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 ?
=========================================================
MANILAL
SHIVRAM PRAJAPATI - Applicant(s)
Versus
STATE
OF GUJARAT & 5 - Respondent(s)
=========================================================
Appearance
:
MR
RN SHAH for
Applicant(s) : 1,
MR LR PUJARI, APP for Respondent(s) : 1,
DELETED
for Respondent(s) : 2,
RULE SERVED BY DS for Respondent(s) : 3,
5,
MR LR PATHAN for Respondent(s) : 3,
RULE SERVED for
Respondent(s) : 4,
MR PR ABICHANDANI for Respondent(s) : 6
MR HARNISH DARJI
for respondent
no.7
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 08/02/2010
COMMON
ORAL JUDGMENT
Heard
learned counsel for the respective parties.
Learned
counsel for the petitioner, Mr.R.N.Shah, taking this Court through
the entire evidence on record especially the rojkam of the case,
has argued that the third party vide reply dated 17-1-2009 remained
present before the learned Addl. Executive Magistrate but since the
opponent was not present, matter was adjourned. However, on
21-1-2009, when the learned advocate of the opponent remained
present, case was kept for orders and thereafter on 13-2-2009, the
impugned order came to be passed.
It
is vehemently argued by learned counsel for the newly added
respondent No.7, Mr.Harnish Darji, that the impugned order passed by
the learned Addl. Executive Magistrate is legal and proper. As the
present petitioner failed to remain present on the date fixed for
hearing before the learned Addl. Executive Magistrate, the learned
Magistrate he had no option but to decide the matter on merits
considering the papers available on record and hence, there is no
question of deciding the matter afresh and hence, the revision is
required to be dismissed.
It
appears that the third party remained present on 17-1-2009 and filed
his reply and hence, in the opinion of this Court, copy of the said
reply ought to have been provided to the petitioner or his learned
advocate to deal with the contentions and averments made in the said
reply. No such exercise appears to have been carried out by the
learned Magistrate. The fact of reply having been filed by the third
party does not appear to have been within the knowledge of the
present petitioner as copy of the said reply was not supplied to him
nor the said fact was informed by the learned Magistrate either to
the petitioner or his advocate. In these circumstances, in the
opinion of this Court, the order dated 13-2-2009 passed by the
learned Addl. Executive Magistrate, Surat, in Criminal Case No.5 of
2007 deserves to be quashed and set aside and the matter requires to
be remanded for a fresh disposal to the learned Magistrate.
In
view of the above, this revision is allowed. The impugned order
dated 13-2-2009 passed by the learned Addl. Executive Magistrate,
Surat, in Criminal Case No.5 of 2007 is quashed and set aside and
the matter is remanded to the learned Magistrate for a decision
afresh on its own merits and in accordance with law without being
influenced by this order as expeditiously as possible preferably
within six months from today upon affording full opportunities to
all the concerned parties by issuing notice to the concerned parties
or their learned advocates. Rule is made absolute.
In
view of the aforesaid order passed in Criminal Revision Application
No.185 of 2009 which is challenged against the main order passed by
the learned Addl. Executive Magistrate, Surat in Criminal Case No.5
of 2007, Criminal Revision Application No.383 of 2007 preferred
against the interim order passed in the said Criminal Case by the
very same Magistrate would become infructuous and is disposed of as
having become infructuous. Rule is discharged. Interim relief
stands vacated.
In
view of above, Criminal Misc. Appln.No.1888 of 2008 also does not
survive and is disposed of accordingly.
(M.D.SHAH,J.)
radhan
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