Madhya Pradesh High Court
Narottam Das Khare vs Virendra Singh on 1 March, 2018
THE HIGH COURT OF MADHYA PRADESH
MCRC-12544-2012
(NAROTTAM DAS KHARE Vs VIRENDRA SINGH)
11
Jabalpur, Dated : 01-03-2018
Mr.Dilip Pandey, learned counsel for the petitioner.
Mr.A.Z.Raizada, learned counsel for the respondents.
The petitioner has filed this petition under section 482 of the Code of Criminal Procedure to invoke the inherent jurisdiction of this sh Court and to set aside the order dated 29.6.2011 and further to direct to e proceed in the Criminal Case No.378/2007, pending before the ad Judicial Magistrate First Class, Nowgong, District Chhattarpur.
2. Pr Filtering the unnecessary details, the facts requisite for disposal of this case are that, the petitioner filed a criminal complaint a hy under section 200 of the Code of Criminal Procedure against the respondent and one S.B.Mirza for offence under sections 294, 352, ad 342 and 506-B of the Indian Penal Code. Learned trial Court M proceeded with the criminal complaint case. Meanwhile, one of the accused-S.B.Mirza preferred criminal revision before the Additional of Sessions Judge, Nowgong, Chhattarpur which was decided on rt 16.12.2008, wherein cognizance has been taken by the Judicial ou Magistrate First Class against S.B.Mirza was udner challenge was dismissed. Therefore, S.B.Mirza preferred M.Cr.C.No.3614/2009 C before this Court under section 482 of the Code of Criminal h Procedure. The same was allowed and the proceeding against ig S.B.Mirza was quashed and he was discharged for the offences under H sections 294 and 342 of the Indian Penal Code. Criminal Appeal No.1068/2012 [Narottam Khare vs. S.B.Mirza and another] was filed before the Supreme Court wherein the order dated 14.2.2011, has been set aside and it was directed to proceed in the criminal case in accordance with law.
3. Meanwhile, other accused persons remained absent in the original Criminal Complaint Case No.378/2007. According to the complainant, bailable warrants have been ordered to be issued against the accused persons. On 25.3.2011, it was ordered to deposit P.F. for securing the presence of the respondents and the case was listed for 29.6.2011. On that day the complainant remained absent, therefore, the criminal complaint case was dismissed for want of prosecution. Whereas, in the case of S.B.Mirza after the pronouncement of the order by the Apex Court, the case was re-instituted on 29.8.2012. In this background, this petition has been filed by the petitioner/complainant requesting this Court to set aside the order dated 29.6.2011 and seeking direction to the trial Court to proceed with the criminal case in accordance with law.
4. The petitioner claims that on 14.5.2007 the accused sh persons did not appear. The petitioner was always prepared to e prosecute his case, therefore, dismissal of the complaint is bad in the ad eyes of law. The case against S.B.Mirza was similar to that of other Pr accused persons. The Hon'ble Supreme Court has ordered to set aside the order of the High Court in M.Cr.C.No.3614/2009 dated 14.2.2011 a and directed to proceed against S.B.Mirza in accordance with law.
hy Offence was registered against the accused persons under sections 294 ad and 342 of the Indian Penal Code and, therefore, the procedure was to M be adopted under Chapter XX of the Code of Criminal Procedure. The complainant and her counsel were absent for the first time when the of impugned order was passed. The complainant/petitioner submits that he was pursuing the criminal appeal before the Apex Court during trial rt and, therefore, could not mark appearance. ou
5. Heard the arguments and perused the record. C
6. On reading section 256 of the Code of Criminal h Procedure it would be revealed that two constraints are imposed on the ig Court for exercising the power under this section. First is, if the Court H 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. The petitioner remained absent on 29.6.2011 for the first time and, therefore, the dismissal was not proper. The Magistrate should have given one more opportunity for the complainant to appear and prosecute the case, especially in the light of the absence of the respondent.
7. Learned counsel appearing for the respondent has placed reliance on the decision in the case of Major General A.S.Gauraya and another vs. S.N.Thakur and another, AIR 1986 SC 1440, in which, in the absence of the complainant the Magistrate dismissed the complaint in default of want of prosecution. Subsequently, on filing of sh the application, the Magistrate restored the complaint and issued e summons to the accused. On filing of the application, the learned ad Magistrate dismissed the same holding that the Court has the inherent Pr powers under the Code to review or recall his earlier order. The revisional Court has also dismissed the revision filed by the accused a persons and subsequently second revision filed by the accused was hy also dismissed by the High Court. The Apex Court has held that the ad case has moved in various courts for 15 years and it is high time that M we give decent burial. Following the law laid down in the case of Bindeshwari Prasad Singh vs. Kali Singh, AIR 1977 SC 2432, the of Apex Court has set aside the order of the High Court allowed the appeal and restored the order of the Magistrate dismissing the rt complaint.
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8. In the case of S.Rama Krishna vs. S.Rami Reddy, AIR C 2008 SC 2066 the Hon'ble Apex Court has held that there exists a h distinction between a civil case and a criminal case. Speedy trial is ig fundamental right of an accused. The orders passed by the competent H Court of law as also the provisions of the Code of Criminal Procedure must be construed having regard to the constitutional scheme and the legal principles in mind.
9. So far as the dismissal of complaint under section 256 of the Code of Criminal Procedure is concerned the Court should exercise the power judicially and fairly without impairing he cause of administration of criminal justice. Be that as it may, the law is well settled on the point that the discretion to dismiss the complaint on the technical ground of non-appearance of the complaint should be exercised judicially and fairly without impairing the cause of administration of criminal justice. In this regard reference can be made to the decision in the case of S.Anand vs. Vasumathi Chandrasekar, (2008) 4 SCC 67. In the case of Associated Cement Co. Ltd. vs. Keshvanand, AIR 1998 SC 596 it is held that non appearance of the complainant, the Magistrate is not justified in acquitting the accused unless presence of the complainant on that date is found necessary.
10. So far as the exercise of power under section 482 of the Code of Criminal Procedure is concerned, this Court is of the opinion that alternative remedy of filing an appeal is not the absolute bar to sh entertain the petition under section 482 Cr.P.C. In this regard, e reference can be made to Punjab State Warehousing Corporation, ad Faridkot vs. Shree Durga Ji Traders and others, (2011) 14 SCC 615.
11. Pr Learned counsel for the respondent advance the argument that second complaint is permissible in law, for the first a complaint was dismissed without going into the merits.
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12. In the opinion of this Court the inherent power of High ad Court ought to have been exercised to prevent miscarriage of justice or M to prevent abuse of process of Court or to otherwise secure ends of justice. The High Court possess wide discretionary power to secure of these ends. Therefore, this Court deems it fit that the Magistrate instead of taking recourse to shortcut mode ought to have proceeded rt for the next date for presence of the accused persons.
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13. In the result, the impugned order dated 29.6.2011 is set C aside. The Court is directed to proceed from 29.6.2011. Parties are h directed to remain present before the trial Court (Judicial Magistrate ig First Class, Nowgong) on 16.4.2018. A copy of this order be H transmitted to the Court concerned.
14. Accordingly, the petition is allowed.
(SUSHIL KUMAR PALO) JUDGE Digitally signed by RAJESH T MAMTANI Date: 2018.03.13 15:04:09 +05'30' RM