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CR.A/958/2007 2/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 958 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 ?
=========================================================
CHANDRIKABEN
RATILAL PRAJAPATI - Appellant(s)
Versus
STATE
OF GUJARAT & 1 - Opponent(s)
=========================================================
Appearance
:
MR
BS PATEL for
Appellant(s) : 1,MRS RANJAN B PATEL for Appellant(s) : 1,
Mr I M
Pandya, , Addl.PUBLIC PROSECUTOR for Opponent(s) : 1,
MR RAMNANDAN
SINGH for Opponent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 18/09/2008
ORAL
JUDGMENT
1. The
appellant-original complainant has filed Revision Application against
the judgment and order passed by the learned Judicial Magistrate
First Class, Vadodara in Criminal Case No.4207 of 1997 dated
30.9.1999 whereby the learned Magistrate has rejected the said
criminal case. The said Criminal Revision Application No. 624 of
1999 was permitted to be converted into Criminal Appeal No. 958 of
2007 vide order dated 11.7.2007. By way of this Appeal, the present
appellant challenges the aforesaid order.
Heard
the learned advocate for the parties and the learned APP for opponent
No.1.
The
appeal is admitted.
2. This
court has gone through the entire rojkam as well as the ?Sno
instructions?? pursis filed by the advocate of the complainant. No
doubt, the complainant has not remained present before the court when
the matter was called out. It seems that the RPAD Notice issued
through the advocate of the complainant was not served on the
complainant and it was returned with an endorsement ?Snot found??.
This shows that the complainant was not present at the residence when
the Notice was sent. Without going into this fact, the trial court
has, in haste, passed the order. Had the complainant been informed
by his advocate, certainly she would have been present before the
court. Be that as it may, in the opinion of this court, the matter
has to be decided on merits and it should not be thrown out on
technical grounds.
3. In
view of the above, the appeal is allowed. The order passed by the
trial court is quashed and set aside. The trial court is directed
to fix the matter on day-to-day basis for conducting the trial. The
complainant will remain present on each date of hearing and if the
complainant will not remain present, the trial court will pass
appropriate order in her absence.
[M.D.
SHAH, J.]
msp
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