High Court
Legal Reasoning
117 APPLN.2461.2025.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD.17 CRIMINAL APPLICATION NO. 2461 OF 2025IN APPLN/737/20221.Jaishree w/o Vishnu KalsaitAge 32 years, Occu. Nil, R/o Rudraniwas, Ashram Road Near Lathi Hospital, Uralikanchan Pune.2.Daivashala w/o Dayaram SarodeAge 30 years, Occu. Nil, R/o Patoda, Tq. Ambejogai, District Beed.3.Lata w/o Rameshwar DhoteAge 52 years, Occu. Nil, R/o behind Hotel New Garden Dr. Shamprasad Nagar, Kasargaon LaturDistrict Latur.4.Rameshwar a/o Gopalrao DhoteAge 57 years, Occu. Service, R/o Milkat No.1419, Naygaon Road,Raman Bag, Sontapawadi Pune.5.Rohan s/o Rameshwar DhoteAge 34 years, Occu. Private Service, R/o Milkat N. 1419, Naygaon Road, Raman Bag, Sontapawadi Pune.… Applicants(Ori. Accused) Versus1.The State of Maharashtra,Through Police Inspector Nanded, Rural Police Station Nanded, Tq. And Dist. Nanded.2.Sunanda w/o Rohan DhoteAge 30 years, Occu. Nil R/o Jaibhavani Colony, Near Budhavihar, Hadco New Nanded, Nanded.… Respondents(No.2 Ori. Complainant)
Legal Reasoning
217 APPLN.2461.2025.odt...Mr. Amit Tandulkar, h/f Mr. Gajanan G. Kadam, Advocates for Applicants.Smt. R. P. Gour, APP for Respondent / State....CORAM :SMT. VIBHA KANKANWADI &SANJAY A. DESHMUKH, JJ.DATE :21st July, 2025. Per Court:.Present application has been filed for restoration ofCriminal Application No.737 of 2022. By order dated 23rd June, 2025,an adjournment was sought on behalf of the applicants on the groundthat the concerned Advocate on the record has gone to attend the trialbefore another Court. This Court had considered the conditional order,which was passed on 31st October, 2023, when the spare copy forserving respondent No.2 was not given. This Court had directed theapplicants to supply the spare copy within two weeks and thereafter,the notice to be issued, but it was also the stipulation that if the copy isnot given within the stipulated time, then the matter would standdismissed automatically without further reference to the Court. Thecopies were not supplied and the conditional order becameoperational. The application stood dismissed as against respondentNo.2 on 31st October, 2023. But then again when the matter was onboard on 8th March, 2024 and 5th April, 2024, it appears that thelearned counsel for the applicants had sought time to provide spare 317 APPLN.2461.2025.odtcopy. That request was in ignorance of the automatic dismissal of theapplication and no application was filed till 23rd June, 2025 for recall ofthe order dated 31st October, 2023 and therefore, this Court dismissedthe application as the FIR or the proceedings cannot be quashed andset aside without hearing the informant. Now, the present applicationhas been filed for quashing and setting aside the order dated 23rdJune, 2025, and also for recall of order dated 31st October, 2023. 2Heard Advocate Mr. Amit Tandulkar, holding for Mr. G. G.Kadam, learned counsel for the applicants. 3The learned counsel for the applicants submits that thoughthe opportunity was given by this Court, the earlier advocate has notabided by the same and had not supplied the copy. The applicants arenot at fault and they would suffer if the order is not recalled. 4The learned APP strongly opposes the application andsubmits that there cannot be consequential defaults. 5Since in the main matter also respondent No.2 / originalinformant was not served, there is no necessity to issue notice inrespect of the present application. 417 APPLN.2461.2025.odt6Here important to be noted is that when the applicantswant to recall the order dated 31st October, 2023, then there shouldhave been an application for condonation of delay. The question ofsetting aside the order dated 23rd June, 2025, is not in question at allas by the order dated 23rd June, 2025, this Court reiterated orconfirmed the fact of application that was dismissed as againstrespondent No.2 on 31st October, 2023. In the entire application, thereis no specific reason as to why from 31st October, 2023 till 23rd June,2025, no application was filed for recall of the order dated 31st October,2023. General statements are made that there is no willful default onthe part of the applicants. Wrong statement has been made that theapplicants were pursuing the matter diligently, when there is, in fact, adelay in seeking recall of the order dated 31st October, 2023. 7It is also stated in the application that the right to seekquashing of the FIR and the criminal proceedings under Section 482 ofCr.P.C. is the valuable legal remedy available to the accused. If thatwas so valuable, as considered by the applicants, then they ought tohave been diligent enough. We cannot say that the dismissal or orderthat was passed by this Court on 23rd June, 2025, was on the basis oftechnical default. In fact, we upheld the right of the informant to beheard in a matter seeking quashment of the FIR and the criminalproceedings. Only the accused cannot canvas that they have the right. 517 APPLN.2461.2025.odt8Equal duty was on the shoulders of the applicants to seewhat is the progress in their matter, not only before this Court but alsobefore the Trial Court. Nowadays, the orders are available on thewebsite. Applicant No.4, father-in-law, appears to be in civil service,though other applicants appear to be the housewives. Certainly, theresponsibility was more on applicant No.4 to get the latest informationregarding the status of the proceedings from the advocate and theyought to have been in contact with their advocate continuously. Wedeprecate the practice of condemning another advocate by anadvocate, who is now representing the party, behind the back of theadvocate stated to be on the instructions of his client, against whomallegations are made, because there is a clear statement in paragraphNo.6 that it was the negligence of the previous advocate. It cannot beconsidered that it is easy to get rid of the responsibility by making asubmission that the previous advocate erred.9The fact that remains is that the earlier application came tobe dismissed as there was no compliance. Now, the applicants areready to supply the copy and therefore, case is made out forrestoration by recalling the earlier orders. However, taking intoconsideration the time gap, certainly case is made out for imposing ofcosts on the applicants. With these observations, we proceed to pass 617 APPLN.2461.2025.odtthe following order:-O R D E RI.The application stands allowed.II.The order dated 23rd June, 2025 and the order dated31st October, 2023, stand recalled, subject to depositof costs of Rs.5000/- (Rupees Five Thousand Only)by the applicants to the High Court Legal ServicesAuthority, Aurangabad, within a period of one week. III.After the amount is deposited and the copy of theapplication with annexures thereto are supplied to theoffice of this Court for serving respondent No.2, withina week thereafter, the original Criminal ApplicationNo.737 of 2022, would stand restored.IV.Needless to say that if these conditions are notfulfilled, then the order dated 23rd June, 2025, wouldstand revived. [ SANJAY A. DESHMUKH, J. ] [ SMT. VIBHA KANKANWADI, J. ]nga