Delhi District Court
Rev. Prem Das vs Deepak Anand Masih on 31 January, 2012
1
IN THE COURT OF SHRI S. K. SARVARIA DISTRICT JUDGE
INCHARGE (N/W), ADDL SESSIONS JUDGE
DISTRICT COURTS ROHINI, DELHI
Crl. R. No. 03/2012
Rev. Prem Das
Manager,
Methodist Sr. Sec. School,
Sonepat, Mission Road,
Sonepat, Haryana. .... Petitioner
VERSUS
Deepak Anand Masih
@ Dilip Kumar Jha
S/o Sh. K.N. Jha
R/o 1518, Outram Lane
Kingsway Camp, Delhi - 110009.
Also At : A-30, Kailash Colony,
New Delhi ... Respondent
O R D E R :-
1. By this revision petition the petitioner/complainant has requested for setting aside the order dated 15.02.2011 by which the complaint filed by the petitioner under section 500 of Indian Penal Code was dismissed in default by the learned trial court on account of absence of the complainant and his counsel.
2. The contention on behalf of the petitioner is that he was informed by Rev. H.W. Sunray that the matter was listed for 11.01.2012 before the court of sh. Vishal Singh, Ld. MM Rohini Courts. After coming to know about the said fact, the petitioner contacted his counsel and told him that the matter is listed for 11.01.2012. On 11.01.2012, when counsel for the petitioner came to the court to attend the matter, he came to know that the matter has already been dismissed on 15.02.2011. It is the grievance of the petitioner that he was never served with any notice with regard to pendency of the matter, thus he could not appear in the matter. It is therefore requested Prem Dass Vs. Deepak Anand 2 that the revision petition should be allowed and the complaint should be restored to the original number.
3. I have heard the learned counsel for the petitioner and have gone through the trial court record, revision file and the relevant provisions of law. The basic question is whether the revision lies against the impugned order of learned trial court or the appeal lies? If the appeal lies then it lies before Sessions court or before Hon'ble High Court.
It cannot be disputed that the complaint in question was proceeded with as per Summons Trial. Therefore, on account of absence of complainant and counsel for the complainant before learned trial court Section 256 Cr.P.C is attracted.
The basic law is that the Court shall not acquit an accused under Section 256(1) of the Code of Criminal Procedure,1973, before issuance of process/summons to accused in Form No. 1 of the Second Schedule of the Code without appointing a day for his appearance in Court. Any order of acquittal passed under Section 256(1) of the Code, before issuance of process/summons to the accused will be clearly illegal and without jurisdiction. {See Bristo Foods Pvt. Ltd v. Hariharan Nair & Anr IV (2007) BC 319 (Ker)}. Therefore, when the summons have been issued in the complaint case for appearance of the accused or on subsequent date when the accused is present the absence of the complainant leads to dismissal of the complaint and acquittal of the accused. In this regard the relevant paras of the decision in Raja S/o. Dr. S.P. Upadhyay v. State of Maharashtra, 1999(3) Civ.C.C. 369 (Nagpur) are worth noting and the same is as under:
"8. Therefore, the only question, which deserves consideration is as to what remedy was available to the complainant against the order passed by the learned Magistrate under section 256(1) of the Criminal Procedure Code, 1973. There is no dispute about the fact that the learned Magistrate has dismissed the complaint under section 256(1) of the Criminal Procedure Code, 1973, as the Prem Dass Vs. Deepak Anand 3 complainant remained absent and as a consequence of such dismissal, passed an order that the accused is discharged. Obviously, the order of the learned Magistrate discharging the accused was incorrect to the extent that he ought to have acquitted the accused in terms of section 256(1) of the Criminal Procedure Code, 1973. The complainant appears to have been misled by the fact that the Magistrate having discharged the accused, he could avail the remedy of preferring a revision and that is what it appears from the Memo of Revision preferred by the complainant before the Court of Sessions. In the circumstances, the learned Additional Sessions Judge ought to have summarily rejected the Revision Application directing the complainant to prefer an appeal against the order passed by the Magistrate, under section 256(1) of the Criminal Procedure Code, 1973; but the learned Additional Sessions Judge committed an error in entertaining the revision on merits and interfering with the order by the learned Magistrate.
9. It cannot be gain said that merely because the Magistrate committed an error in recording the order of discharge, that would invest the complainant with a right to prefer a revision and he was justified in doing so. As the order itself is very clear that it has been passed under section 256(1) of the Criminal Procedure Code, 1973, it will necessarily have to be construed an order of acquittal under section 256(1) and not that of discharge. There is one more distinction which will have to be kept in mind and that is, that once an order of acquittal under section 256(1) of the Criminal Procedure Code, 1973 is passed, then the complainant is debarred from filing a second complaint on the same facts so long as the order of acquittal is not set aside. Therefore, the only course open to the complainant was to prefer an appeal in the High Court against the said order of the learned Magistrate by special leave of the Court under section 378(5) of the Criminal Procedure Code, 1973."
4. The question arose directly in Kalpana Tyagi Vs. Sneh Lata Sharma 2003 Crl.J 3395 Delhi. In this case in a complaint filed under Prem Dass Vs. Deepak Anand 4 Section 138 of Negotiable Instruments Act was dismissed on account of the absence of the complainant or his Counsel and accused was acquitted. The question before our Hon'ble High Court was whether revision lies or the appeal against such an order. The following observations were made by our Hon'ble High Court:
"8. A distinction, therefore, has to be drawn in regard to the complaints dismissed prior to the summoning of an accused and those dismissed subsequent to the summoning of the accused. If a complaint is dismissed prior to the summoning of an accused the order may be challenged by way of filing a revision but once Section 256 comes into play the dismissal of a complaint has the effect of acquittal of an accused and only an appeal can be filed under Section 378 of the Code to challenged his acquittal."
5. In the light of above legal position the facts before learned trial court needs to be scrutinized to ascertain whether revision or the appeal lies against the impugned order. The learned trial court's record shows that on respondent/accused was summoned by learned trial court who remained unserved from the initial order of summoning and throughout till the impugned order is passed on 15.02.2011. In the light of legal position highlighted by Kalpna Tyagi's case (supra) and Bristo Food's case (supra) with the dismissal of the complainant the accused shall be deemed to have been acquitted by the learned trial court. Therefore, appeal and not the revision lies against the impugned order of acquittal.
6. The matter does not end here. The next logical question is whether against the impugned order the appeal lies before Sessions court or before Hon'ble High Court. If it lies before Sessions court then by virtue of provisions of Section 399 (2) read with Section 401 (5) CPC, the revision petition of the petitioner can be converted into the appeal. If it lies before Hon'ble High Court then it cannot be so converted and so is not maintainable before Sessions Court.
Prem Dass Vs. Deepak Anand 5
7. Section 378 Cr.P.C. deals with appeal against acquittal. A careful perusal of this provision of law shows that after the Cr.P.C. was amended by Amending Act 2005 (25 of 2005) with effect from 23/6/2006 the appeal against judgment of acquittal passed by Magistrate in police cases lies before Sessions Court which is a clear departure from the earlier position prior to 23/6/2006 when the appeal against acquittal in police cases or in private complaint cases used to be filed before Hon'ble High Court. However, it is only half of the story and this legal position after 23/6/2006 is with regard to police cases only. The legal position as to forum in appeal against acquittal in private complaint cases remained unchanged by the said Amending Act 2005. Therefore, as in past, the appeal would lie before Hon'ble High Court against the judgment of acquittal passed by Magistrates in private complaint cases including the complaint cases under the provisions of section 138 of the Negotiable Instruments Act. This legal position is indicated by Subsection (4) of Section 378 Cr.P.C. A harmonious construction of Sub-Section (4) of Sec. 378 Cr.P.C. and proviso of Section 372 Cr.P.C. shows that the word 'Victim' is used in the proviso to Section 372 Cr.P.C. for victims of crime in police cases and not in private complaint cases like the present complaint u/Sec. 138 Negotiable Instruments Act. Hence, appeal should have been filed before Hon'ble High Court.
8. In view of the above discussion the appeal against the impugned order of dismissal of the complaint in the default lies before Hon'ble High Court and not before Sessions Court. The revision petition is, therefore, dismissed being not maintainable. The trial court record be returned along with the copy of this order. The order be sent to the server (www.delhidistrictcourts.nic.in). The revision file be consigned to the record room.
Announced in the open court on
31st day of January, 2012 (S.K.SARVARIA)
DISTRICT JUDGE & INCHARGE (N/W)
ADDL. SESSIONS JUDGE
DISTRICT COURTS ROHINI, DELHI
Prem Dass Vs. Deepak Anand