Punjab-Haryana High Court
Jaswinder Singh vs M/S Vian Infrastructure Limited And ... on 26 November, 2013
Author: Daya Chaudhary
Bench: Daya Chaudhary
Criminal Misc. No. M-33921 of 2013 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Misc. No. M-33921 of 2013
Date of decision: 26.11.2013.
Jaswinder Singh ..Petitioner
Versus
M/s Vian Infrastructure Limited and others ..Respondents
CORAM: HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present: Mr. Sandeep Jasuja, Advocate
for the petitioner.
Daya Chaudhary, J. (Oral)
The present petition has been filed under Section 482 Cr.P.C. for quashing of order dated 27.07.2012 passed by Judicial Magistrate Ist Class, Gurgaon as well as order dated 04.10.2012 passed by learned Sessions Judge, Gurgaon.
Learned counsel for the petitioner submits that the petitioner remained absent only on 27.07.2012 and the same was due to noting down of wrong date as 27.08.2012 whereas on earlier three occasions i.e., on 27.10.2009, 25.03.2010 and 21.04.2011 as mentioned in the order passed by learned Sessions Judge, Gurgaon, the application moved by the petitioner for exemption from personal appearance was allowed. It cannot be said in any manner that the petitioner remained absent on said dates. Learned counsel for the Rani Neetu 2013.11.29 13:14 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No. M-33921 of 2013 2 petitioner further submits that the petitioner undertakes to appear regularly before the trial Court and to abide by all the terms and conditions to be imposed by the trial Court. Learned counsel for the petitioner also submits that while passing order by learned Sessions Judge, Gurgaon, a wrong finding has been given that the petitioner was absent on all aforesaid dates whereas the application for exemption from personal appearance was moved on each occasion and the same was allowed by the trial Court. Learned counsel also submits that the petitioner remained absent only on one date and the same was due to noting down of wrong date. The intention of the petitioner was not to remain absent without any sufficient reason. Moreover, the case is at initial stage as the respondent is yet to appear.
On perusal of zimni orders as well as order passed by both the Courts below, the contentions raised by learned counsel for the petitioner appears to be correct as on earlier occasions, application for exemption from personal appearance was moved and the same was allowed by the trial Court. The finding recorded in the order is contrary to the zimni orders.
This Court in the case of Purushotam Mantri vs. Vinod Tandon alias Hari Nath Tandon reported as 2009(1) RCR (Criminal) 442 while relying on the judgment in case of Jitender Bajaj v. State (U.T Chandigarh) and others reported as 2005(3) RCR(Crl.) 69, held as under :-
Rani Neetu 2013.11.29 13:14 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No. M-33921 of 2013 3
"..............When the Magistrate, in a summon case, has dismissed the complaint and acquitted the accused due to absence of the complainant on the day of hearing, he cannot later on restore the complaint and set aside the order of acquittal, even if the complainant shows very good reasons for his failure to be present on the day of dismissal of the complaint. In such situation, the only remedy available with the complainant is to file appeal or revision against such order or petition under Section 482 of the Code before this Court for setting aside the said order of dismissal of the complaint and acquittal of the accused on the ground that in the given facts and circumstances, the dismissal of the complaint and acquittal of the accused was not justified or there were sufficient reasons for non-appearance of the complainant before the Court on the date fixed, or the Magistrate has not properly exercised his discretion while not adjourning the complaint and dismissing the same."
Thus, there is no dispute that the impugned Order dated 27.07.2012 passed by the Judicial Magistrate Ist Class, Gurgaon, vide which, the complaint filed by the petitioner was dismissed in Rani Neetu 2013.11.29 13:14 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No. M-33921 of 2013 4 default, can be set aside in the proceedings under Section 482 of the Cr.P.C. Section 256 of the Cr.P.C reads as under :-
"256. 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."
It is evident from the perusal of the same that the Rani Neetu 2013.11.29 13:14 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No. M-33921 of 2013 5 Magistrate may dispense with the attendance of the complainant, in case, he comes to the conclusion that it was not necessary for the complainant to appear on that date and proceed with the case in accordance with law.
Hon'ble the Supreme Court in the case of The Associated Cement Co. Ltd. vs. Keshvanand reported as 1998(1) RCR (Criminal) 309 (SC) with reference to the aforesaid provisions of Section 256 of the Cr.P.C., observed in para 16 as follows :-
"16. 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 Rani Neetu 2013.11.29 13:14 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No. M-33921 of 2013 6 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 there be exercised judicially and fairly without impairing the cause of administration of criminal justice."
In similar circumstances, this Court in the case of Dilawar Singh vs. Pankaj Joshi and another reported as 2007(2) RCR (Criminal) 398 held thus ;
" The trial Court, therefore, was clearly in error in resorting to the extreme step of dismissal of the complaint especially in view of the fact that the matter was pending primarily to secure the presence of the respondent and proceedings under Section 82 of the Cr.P.C were contemplated against him. As such, in the given facts and circumstances of the case, it was incumbent upon the trial Court to have explored the possibility of either adjourning the hearing of the case to some other date or to have concluded whether the Rani Neetu 2013.11.29 13:14 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No. M-33921 of 2013 7 presence of the complainant was necessary so as to take such a serious view of his absence which resulted in the passing of the impugned order vide which the life of the complaint was extinguished."
Without issuing notice to the other party as it may delay the proceedings and unnecessary expenses will have to be incurred by the respondents and keeping in view the facts as mentioned above, the present petition is allowed and the impugned order dated 27.07.2012 passed by Judicial Magistrate Ist Class, Gurgaon as well as order dated 04.10.2012 passed by learned Sessions Judge, Gurgaon are set-aside. The complaint filed by the petitioner is restored to its original number and the trial Court is directed to proceed with the complaint from the stage when the same was dismissed in default. The petitioner is directed to appear before the trial Court on 10.12.2013.
Order accordingly.
26.11.2013 (DAYA CHAUDHARY)
neetu JUDGE
Rani Neetu
2013.11.29 13:14
I attest to the accuracy and
integrity of this document
Chandigarh