Punjab-Haryana High Court
Joga Singh vs State Of Punjab And Ors. on 22 September, 2006
Equivalent citations: 2007CRILJ1306
Author: Rajive Bhalla
Bench: Rajive Bhalla
ORDER Rajive Bhalla, J.
1. The petitioner, filed a private complaint under Section 3(1)(X) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Sections 379, 506, 323, 34 of the IPC. On 8-1-2003, as the petitioner did not appear, the learned trial Court dismissed the complaint, for want of prosecution. The petitioner, preferred a revision, which was dismissed by the order dated 1-10-2003, on the ground that the revisional Court had no jurisdiction to entertan the revision.
2. Counsel for the petitioner contends that the absence of the petitioner /complainant did not empower the Magistrate to dismiss the complaint, for want of prosecution. The petitioner had concluded his pre-summoning evidence and, therefore, the learned trial Court was required to appraise the complaint and the evidence on record and thereafter proceed to dismiss the complaint in terms of Section 203 Cr. P.C. (hereinafter referred to as 'the Code') or issue process in terms of Section 204 of the Code. It is contended that Chapter XV of the Code, prescribes the procedure to be followed, namely; at the pre-summoning stage. At this stage, the stattory provisions that govern the jurisdiction of a Magistrate, do not require the personal presence of a complainant and, therefore, do not confer any power upon Magistrate to dismiss a complaint for absence of a complainant. The personal presence of the complainant is required after summoning. The consequences of a complainant's absence are governed by Sections 249 and 256 of the Code. These provisions do not apply at the pre-summoning stage. It is, therefore, argued that the learned trial Court had no jurisdiction to dismiss the complaint for want of prosecution. It is also contended that as the learned trial Court had issued notices to secure the petitioner's presence and the last notice had not been received back, served or otherwise, the learned trial Court had no jurisdiction to dismiss the complaint for want of prosecution.
3. Counsel for the respondent, however, states that a complainant, is required to be present in person on each date, during the entire course of the complaint, whether at the pre-summoning or the post summoning stage. Sections 249 and 256 of the Code mandatorily require a complainant, to be present in person on any date fixed for hearing of the complaint. As the petitioner was absent for three consecutive dates, the learned trial Court rightly dismissed the complaint for non-prosecution.
4. It is further argued that as the petitioner has already availed his remedy of revision, this petition under Section 482 of the Code, a second revision in the garb of a petition under Section 482 of the Code, is not maintainable. It is, therefore, prayed that the present petition be dismissed.
5. I have heard learned Counsel for the parties and perused the paper book.
6. Chapter XV of the Code, namely; Sections 200 to 203 thereof, provide the procedure to be adopted upon receipt of a private complaint. Section 200 of the Code, requires a Magistrate, taking cognizance, on a complaint to examine the complainant and his witnesses. Section 201 of the Code prescribes the procedure to be adopted by a Magistrate, not competent to take cognizance of the offence. Section 202 of the Code empowers a Magistrate to postpone the issue of process and either proceed to inquire into the case himself or direct investigation, to be made by a police officer or by such person as the Magistrate deems appropriate. Section 203 of the Code, empowers a Magistrate to dismiss a complaint, if after considering the statements on oath or the result of the inquiry or investigation, he is of the opinion that there is no sufficient ground for proceeding further. Chapter XV, however, does not contain any provision which requires a complainant to be personally present before a Court on each date of hearing.
7. If, however, the Magistrate is of the opinion that there is sufficient ground to proceed further, the process, is issued under Chapter XVI of the Code, namely; under Section 204. Process, may be either a summon or a warrant, dependant upon the nature of the prima facie offence, so determined. If the complaint discloses an offence triable as a warrant case, the procedure to be followed is prescribed in Chapter XIX-B titled as "Trial of warrant cases by Magistrates". Section 249 of this Chapter postulates that if on any date fixed for the hearing of the case the complainant is absent and the offence may be lawfully compounded or is not cognizable, the Magistrate may in his discretion, at any time before charges are framed discharge the accused. This section however does not apply to the pre-summoning stage, as it falls in chapter XIX-B, a chapter that prescribes the procedure, after an accused appears before the Court, in response to process issued under Section 204 of the Code.
8. Where however, summons are to be issued, the trial is to proceed under Chapter XX titled as 'Trial of summons cases by Magistrates". Section 256 thereof, prescribes the consequences for the non appearance or death of a complainant. Section 256 Cr. P.C. however, does not apply to the procedure prescribed at the pre-summoning stage.
9. It is, thus, apparent that Sections 200 to 203 of the Code, which govern procedure to be adopted, at the pre-summoning stage, do not impose any statutory duty upon a complainant to appear, in person on each date. His absence, therefore, cannot be a ground to dismiss a complaint for non-prosecution. Where, a complainant fails to appear, whether in person or through counsel, at the pre-summoning stage, the Magistrate is required to appraise the pleadings, the evidence, if any, adduced in support thereof and thereafter proceed to either dismiss the complaint, in terms of Section 203 of the Code or issue process under Section 204 of the Code. At the pre-summoning stage, a Magistrate cannot dismiss a complaint for failure of the complainant to enter appearance and for want of prosecution.
10. A controversy, similar to the one obtaining in the present case, namely; whether a complainant is required to be personally present on each and every date of hearing, was subject matter of Kuldip Singh v. Harnam Singh and Anr. 1982 (9) Criminal Law Times, 289. After a perusal of the statutory provisions of the Code, it was held as follows:
From a plain reading of this provision, it is clear that the Magistrate can dismiss the complaint if he, after considering the preliminary evidence of the complainant and his witnesses, and the result of the enquiry of investigation, if any, is of the opinion that there is no sufficient ground for proceeding. This is the only provision of law which deals with the dismissal of complaints. However, Sections 249 and 256 of the Code deals with different situations. Section 249 relates to the cases where the offence is compoundable and non-cognizable and the Magistrate is empowered thereunder to discharge the accused if the complainant is absent. Section 256 comes into play after the process is issued against the accused and the accused is present in Court and it deals with the non appearance or the death of the complainant. Thus, these two sections come into play after the accused has been summoned and appears in Court. In the present case admittedly, the accused have not yet been summoned and the complaint was dismissed by the trial Court for the absence of the complainant.
11. It is, thus, clear that the trial Court committed an error of jurisdiction by dismissing the complaint for, failure of the petitioner to enter appearance. Consequently the present petition is allowed and the orders dated 8-1-2003 and 1-10-2002 passed by the Additional Chief Judicial Magistrate, Amritsar and Additional Sessions Judge, Amritsar, respectively are set aside. The matter is remitted, to the trial Court to proceed with the complaint from the stage obtaining on the date the complaint was dismissed for non-prosecution. The petitioners are directed to appear before the trial Court on 15th of October 2006 for further proceedings, in accordance with law.