Chunilal Bhuiya vs Bikash Bhuiya and Another

Manisana, J.—This revision petition arises from an order dated 20 March 1982 of the learned Sessions Judge, Cachar passed in Criminal Motion No. 64(4) of 1981 setting aside the order dated 23 November 1981 passed by the Judicial Magistrate of the 2nd Class, Silchar in C.R. Case No. 2113 of 1981.

Facts of the case may briefly be stated. On 23 November 1981, the date fixed for hearing of the case, the complainant was absent. Therefore, the learned Magistrate dismissed the complaint and discharged the accused persons u/s 249, Cr. P.C. The learned Magistrate, later on, passed another order which runs in the following terms:

The complainant Sunilall Bhuiya appeared before the Court with some of his witnesses. The complainant prays for excuse of his delay in appearing in the Court. For the interest of justice I accept his prayer as the complainant appears before me only a few minutes after the former order is passed. Hence issue notice to the accused persons to appear before the Court. Fix 19-12-81 for appearance.

Against the order of the learned Magistrate, the accused filed Criminal Motion No. 64(4) of 1981 in the Court of Sessions Judge, Cachar. The learned Sessions Judge set aside the order; hence this petition in this Court.

Mr. B. K. Acharyya, the learned Counsel for the petitioner, has contended that, first, the learned Sessions Judge ignored Section 465, Cr. P.C. Secondly, it is only when the complainant did not appear at all during the Court hours, on the day of hearing, the learned Magistrate could exercise his power u/s 249, Cr. P.C.

I am unable to accept the contentions of the learned Counsel. I approach the matter as follows. So far as the first contention is concerned, the Supreme Court, in Maj. Genl. A.S. Gauraya and Another Vs. S.N. Thakur and Another, has held that so far as the accused is concerned, dismissal of complaint for non-appearance of the complainant or his discharge or acquittal on the same ground is a final order and in the absence of any specific provision in the Code, a Magistrate cannot exercise any inherent jurisdiction. The Magistrate cannot restore a complaint to his file by revoking his earlier order dismissing it for non-appearance of the complainant and proceed with it when an application is made by the complainant to revive it. A second complaint is permissible in law if it could be brought within the limitations imposed by the Supreme Court in Pramatha Nath Taluqdar Vs. Saroj Ranjan Sarkar,

In my opinion, having regard to the above decision of the Supreme Court, the law, in the present case, can be summarized as follows. The Magistrate has no jurisdiction to restore a complaint to his file by revoking his earlier order dismissing it for non-appearance of the complainant. The scope of Section 465, Cr. P.C. is to cure certain error or omission or irregularity as provided thereunder, committed by a Court of competent jurisdiction in the course of a trial or inquiry or other proceedings under the Code. The provisions of Section 465 will not be applicable to a case where a Court has no jurisdiction. Therefore, the learned Sessions Judge has rightly held that the learned Magistrate had no jurisdiction to restore the complaint to his file by revoking his order dismissing it for non-appearance of the complainant.

As regards the second contention, namely, it is only when the complainant did not appear at all during the Court hours, on the day of hearing, the learned Magistrate could dismiss the complaint and discharge the accused, the learned Counsel for the petitioner has referred me to a case of the Andhra Pradesh High Court, as reported in Public Prosecutor (Andhra Pradesh) Vs. T.S. Prasad, , to support his contention. In that case, the Andhra Pradesh High Court has held:

It is only when the complainant does not appear at all, during the court hours, on the date of hearing, that Magistrate could take upon himself the responsibility of throwing out a case and acquitting the accused.

With the greatest respect, I am unable to accept the decision of the Andhra Pradesh High Court as a general proposition that it is only when the complainant did not appear at all during the court hours, on the day of hearing, the complaint is to be dismissed and the accused is to be discharged. Let me test the matter in this way. Section 249, Cr. P.C. runs : "

When the proceedings have been instituted upon complaint, and on any day fixed for hearing of the case, the complainant is absent, and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused.

(Emphasis are mine)

The word "may" and the expression "in his discretion" in Section 249 show that the Magistrate may or may not dismiss the complaint or discharge the accused, if the complainant is absent on the day fixed for hearing. The Magistrate may, in exercise of his judicial discretion, adjourn the case instead of dismissing the complaint. The discretion is to be exercised judicially considering the circumstance? of the case and, other variety of factors for the ends of justice. The question then is at what time of the court hours, the Magistrate has to exercise his discretion u/s 249. In my considered opinion, the Magistrate has to exercise his discretion u/s 249 when the case is called on for hearing. When the case is called on for hearing, if the complainant is absent, the Magistrate may discharge the accused or adjourn the case or wait till the end of the court hours. That apart, the decision of the Andhra Pradesh High Court does not help the petitioner. In the present case, the question is whether the learned Magistrate had jurisdiction to restore the complaint to his file by revoking his order dismissing it for non-appearance of the complainant but not whether the order dismissing the complaint and discharging the accused was erroneous,

For the foregoing reasons, the revision petition is dismissed.