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Delhi District Court

Sh. Subhash Rai vs State (Nct Of Delhi) on 9 October, 2012

                                               1

        IN THE COURT OF SHRI S. K. SARVARIA DISTRICT JUDGE
               INCHARGE (N/W), ADDL SESSIONS JUDGE
                   DISTRICT COURTS ROHINI, DELHI




C.A No. 19/2012
Sh. Subhash Rai
S/o Sh. Shiv Pujan
R/o O­181, Mangolpuri 
Delhi­83.                                                            ...... Appellant 
                                          VERSUS 


State (NCT of Delhi)                                      ..... Respondent 


: JUDGMENT:

1. This appeal is filed against the order dated 24.07.2012 passed by Ld. Metropolitan Magistrate whereby the complaint case u/S 200 Cr.P.C was dismissed.

2. I have heard Ld counsel for appellant and have gone through the trial court record.

3. The complaint was filed by the appellant U/Sec. 190­a/200/202/204 Cr.P.C along with application u/S 156(3) Cr.P.C for proceeding against the accused persons under Sections 441/445/447/448/34 IPC before the Ld M.M. The matter was at preliminary stage wherein pre­summoning evidence has not been recorded before Ld M.M. when the appellant and his counsel had absented on 24.07.2012 so the said complaint was dismissed in default.

4. The contention on behalf of appellant is that ld counsel for appellant Subhash Rai Vs State (NCT of Delhi) 2 did not appear before Ld M.M due to her election of Rohini Court Bar Association and she sent a proxy counsel who was not entertained by Ld M.M and the complaint was dismissed in default. Therefore, the appeal should be allowed and complaint should be restored to its original position before the Ld. MM.

5. The question arises what is the effect of the dismissal of the complaint in default. The complaint case filed before the Ld. MM pertains to a summon case which entails summon trial, therefore, Sec. 256(1) of the Code 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))

6. Since the matter was at pre summoning stage and not for the appearance of respondents nor the respondents were present before Ld M.M., so the order dismissing the complaint in default cannot be treated as order of acquittal of the accused persons, therefore, the revision petition is maintainable. Hence, present appeal, is being treated as Revision Petition.

7. In view of the aforesaid circumstances explained in the appeal treated as Revision Petition and referred above, the appeal deserves to be allowed and impugned order dated 24.07.2012 passed by Ld M.M is set aside. However, on Subhash Rai Vs State (NCT of Delhi) 3 account of omission/dereliction in duty on part of appellant, some cost should be imposed upon the appellant. Accordingly, appeal is allowed subject to cost of Rs. 500/­ to be deposited with Delhi Legal Services Authority, Rohini Courts, Delhi.

8. The trial court record be returned along with the copy of this order. The appellant to appear before the Ld. Trial Court on 16.10.2012. The learned trial court shall proceed further in the matter in accordance with law. 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 09.10.2012 (S.K.SARVARIA) DISTRICT JUDGE & INCHARGE (N/W) ADDL. SESSIONS JUDGE DISTRICT COURTS ROHINI, DELHI Subhash Rai Vs State (NCT of Delhi)