Delhi High Court
Krishna Kumar Gupta vs Mohammed Jaros And Anr. on 5 August, 2002
Equivalent citations: 2003CRILJ102, 99(2002)DLT504
Author: Mahmood Ali Khan
Bench: Mahmood Ali Khan
JUDGMENT Mahmood Ali Khan, J.
1. This petition is filed under Section 482 Cr.P.C.
for quashing the order of an Additional Sessions Judge, Karkardooma Courts, Delhi dated 22.8.2000 passed in a revision petition whereby he has set aside the order of a Metropolitan Magistrate dated 16.10.1999 and has restored the criminal complaint which was dismissed in default.
2. The facts are simple. The respondent filed a complaint for prosecution of the petitioner for committing offence under Section 138 of the Negotiable Instrument Act. It was fixed before the Magistrate on 16.10.1999 on which date the complainant did not attend hearing. Learned Magistrate dismissed the complaint. This order was challenged by the respondent in a revision petition preferred before the Additional Sessions Judge. The Additional Sessions Judge though agreed with the petitioner accused that revision petition was not maintainable but was of the view that the court in exercise of the power vested by Section 397 Cr.P.C. may examine the legality and propriety of any findings, sentence and order so it can also look into any illegality of the proceeding by an inferior court. He held that the order impugned in the revision petition revealed an illegality and the defect in procedure and it suffered from manifest error in law which had resulted in the miscarriage of the justice. Therefore, he set aside the order dated 16.10.1999 and restored the complaint and directed the trial court to proceed with its trial in accordance with law.
3. The petitioner is aggrieved and has filed the instant petition. Counsel for the petitioner has argued that the complaint was dismissed in default by the learned Magistrate in exercise of the power given by Section 256 of the Cr.P.C. and upon dismissal of the complaint the accused stood acquitted and not discharged. He urged that only an appeal to the High Court will lie against the order of acquittal and resort to the revision under Section 397 Cr.P.C. before the Additional Sessions Judge was without jurisdiction, it was argued that the order of the learned Additional Sessions Judge entertaining the revision petition against an order which was appellable and restoring the criminal complaint, is patently illegal, erroneous and without jurisdiction.
4. He had cited Guest Kleen Williams Ltd. v.
Muralilal 1984 RLR 32 where a Division Bench of this court held that against an order of dismissal of a complaint under Section 256 of the Cr.P.C. only an appeal lies. He also referred to the judgment of Shri M.M.S. Bedi v.
Union Territory of Chandigarh and Anr. 1986 Vol. 79 PLR 687; Vinod Kumar v. State of Punjab 1999(4) Recent Criminal Reports 469; and a judgment of Himachal Pradesh High court in H.P. Agro Industries Corporation Ltd. v.
M.P.S. Chawla 1997(2) Crimes 591 in support of his argument that the dismissal of the complaint under Section 256 of the Cr.P.C. resulted In acquittal of the accused and an appeal and not the revision, will be the remedy to challenge it. Counsel, therefore, urged that the Additional Sessions Judge has erroneously exercised jurisdiction which did not vest in him for setting aside the order and this has resulted in miscarriage of justice.
5. Counsel for respondent initially justified the order of the Additional Sessions Judge impugned in this petition on the ground that it was not in accordance with the law laid down by the Supreme Court in Associated Cement Co. Ltd. v. Keshvanand and a judgment of the Division Bench of this court in Shiv Kumar v. Mohd. Saghir and Ors. 1997 JCC but finally conceded that technically speaking revision did not lie against the order of dismissal of a complaint under Section 256 Cr.P.C. in view of the consistent view held by the courts that dismissal resulted in acquittal of the accused and against the acquittal only an appeal would be the appropriate legal remedy to challenge it. However, he submitted that in view of the order of the Additional Sessions Judge, by which the order of the Magistrate was set aside and the complaint was restored, the respondent could not prefer the appeal, therefore, the appellant may be given liberty to challenge the order of the Magistrate in an appropriate proceeding.
I need not advert much on the question whether the order of the dismissal of a complaint passed in exercise of powers vested by Section 256 of the Cr.P.C. amounted to the acquittal of the accused and only an appeal may be filed against such an order of acquittal before the superior court of appeal in view of the constant view of this court and other High Court on this question cited by the counsel for the petitioner. The counsel for the respondent has also not raised any quarrel on the proposition of law laid down in the cited judgments.
6. The complaint was dismissed by the Magistrate by order dated 16.10. 1999 which is as under:-
"16.10.1999 Present: Complainant is absent.
Accused on bail with Cl.Mr.U.B Chaurasia and Mr.R.S.Yadav.
It is 2.22 P.M. Despite several calls since morning, none has appeared on behalf of the complainant. It appears that the complainant is not interested in pursuing the case.
In the circumstances, the case is hereby dismissed in default. Accused is discharged. Pile be consigned to R.R."
This order was passed under Section 256 of the Cr.P.C., which is extracted below : --
"Non-appearance or death of complainant...............
(1) If the summons has been issued on complaint and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:
Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.
(2) The provisions of Sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death".
7. A bare perusal of this Section makes it explicitly clear that it gives option to the Magistrate either to dismiss the complaint or to adjourn the case for some reason if the Magistrate thought it proper to adjourn the hearing. The Supreme Court examined this provision in Associated Cement Co. Ltd. v. Keshavanand (supra). It enunciated the law as under:- -
"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 the progress of the case and also whether the situation does 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".
A similar view was earlier taken by a Division
Bench of this court in shiv Kumar v. Mohd. Saghir and Ors. (supra). The case law cited above, thus, show that the Magistrate is not bound to dismiss a complaint for non-appearance of the complainant under Section 256 Cr.P.C. and he has to adopt one or the other course open to him in passing appropriate order. He has to exercise his discretion judicially. I need not dwell further on this question since it would require consideration of the contention of the respondent on merit which the present petition being not an appeal against the order would be inappropriate to be dealt with by this court.
8. Counsel for respondent has contended that the respondent may be given liberty to challenge the order of the learned Magistrate dated 16.10.1999 in an appropriate appeal or any other proceeding needs consideration. The respondent filed a revision petition against the order which the learned Additional Sessions Judge, entertained and accepted it erroneously in exercise of his jurisdiction which did not vest in him. Indeed the respondent had resort to a wrong remedy but he was granted the relief by a superior court. But at the same time, the petitioner had appropriate legal remedy by way of appeal for challenging the order of the learned Magistrate. If he had a right to file appeal he can exercise it in accordance with law for which no permission is needed from the court.
9. For the reasons stated above the impugned order
of the Additional Sessions Judge dated 22.08.2000 is not
sustainable in law, It is without jurisdiction. It
resulted in miscarriage of justice. It is, therefore, set
aside. However, the respondent may, if so advised, file
an appeal against the order of the learned Magistrate dated 16.10.1999 in accordance with law.