1 2025:CGHC:14706 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 376 of 2024 • Firm Asharam Harinarayan Through Partner Purushottam Agrawal S/o Late Asharam Agrawal, R/o Nandai Chauk, Rajnandgaon, District Rajnandgaon C.G. Mobile No. 98271-68148 Account No. 10564174798 ... Appellant versus • Dr. Dilip Kumar Manna S/o S.C. Manna, Proprietor Aarti Medical Stores, R/o C-16, Rishabh Colony, In Front Of Jainam Palace, Durg, District Durg C.G. ... Respondent For Appellant : Mr. Anuj Kumar Pandey, Advocate on behalf of Mr. Shaleen Singh Baghel, Advocate For Respondent(s) : Ms. Devanshi Chakraborty, Advocate on behalf of Mr. Sachidanand Yadav, Advocate Hon'ble Shri Justice Narendra Kumar Vyas Order on Board 27.03.2025 1. This appeal is preferred against the order dated 04.05.2022 passed by the Judicial Magistrate First Class, Rajnandgaon, District Rajnandgaon (C.G.), in Complaint Case No. 189/2021 whereby the said Court dismissed the complaint case for want of prosecution. 2. Learned counsel for the appellant would submit that the order passed by the learned Court below is bad in law. The case was MANISH YADAV Digitally signed by MANISH YADAV Date: 2025.03.28 11:17:40 +0530 2 dismissed for want of prosecution, it must have been disposed of on merits after examining the records of the case, therefore, the impugned order dated 04.05.2022 passed by the Court below is illegal and its deserved to be set-aside. In support of his case learned counsel for the appellant placed reliance on [(1996) 3 Crimes 54 (SC)] (Bani Singh v. State of U.P.) held by the Hon'ble Supreme Court. 3. It appears from the order sheets of the trial Court that the case was listed many times but the appellant herein was not present in any date and on 04.05.2022, due to the non-appearance of the appellant herein, the case was dismissed for want of prosecution. 4. In the matter of Associated Cement Co. Ltd. Vs. Keshvanand reported in (1969) 1 SCC 687, Hon'ble the Apex Court held as under: “18.Reading the Section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the Section. First is, if the court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the Court notices that the complainant is absent on a particular day the court must consider whether personal attendance of the complainant is essential on that day for progress of the case and also whether the situation dos not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice.” 3 5. In view of the law laid down by the Supreme Court in Associated Cement (supra), I am of the considered opinion that in the case in hand, the Court below erred in dismissing the case preferred by the petitioner herein for want of prosecution without going through the merits of the case which is improper and unjustified. 6. Accordingly, order dated 04.05.2022 passed by the trial Court is set- aside allowing the instant appeal. Matter is remitted back to the Judicial Magistrate First Class, Rajnandgaon, District - Rajnandgaon (C.G.) for fresh adjudication of the case on merits after giving opportunity of hearing to the complainant. 7. The appellant is directed to appear before the concerned trial Court on 8th May, 2025 for further proceedings. Sd/- (Narendra Kumar Vyas) Judge Manish