Gurdip Singh vs State of Punjab and Others

Paramjeet Singh, J.—Heard. This petition is treated as petition u/s 482 of the Code of Criminal Procedure, 1973. Learned counsel for the petitioner submits that complaint dated 09.07.2011 (Annexure A-1) was filed by the petitioner. The complaint was still at the preliminary stage. The complaint was adjourned from 25.10.2010 to 23.11.2010, but it was wrongly noted as 01.12.2010, inadvertently due to noting a wrong date, he could not appear before the Court of Judicial Magistrate Ist Class, on 23th November, 2010 when the complaint has been dismissed in default for non-prosecution. The petitioner is aggrieved of this order dated 23. 11.2010 dismissing the complaint and has challenged the same by way of the instant petition.

It is submitted by learned counsel for the petitioner that at this stage, although notice has been issued to the respondents 2 to 6 but no right of being heard has accrued to them, as the case was at a pre-evidence stage. The respondents are not accused before the learned Judicial Magistrate Ist Class and, therefore, the respondent are not required to be heard on the question, whether the complaint can be restored or not.

I have heard the learned counsel for the petitioner. The respondents have not been summoned by the trial Court till date in the complaint, which has been dismissed for non-prosecution and, therefore, they need not be heard on the question of restoration of the complaint.

It is settled law that until process has been issued, a person does not become an accused nor he has any right to represent his case before that forum. That being the situation, when an order has been made dismissing the complaint for non-prosecution at a stage when summons have yet to be issued or even evidence is yet to be recorded and taken into consideration, no right would accrue to any other person and, therefore, it would be open to this Court to interfere in the impugned order without hearing respondents / so-called accused. The Hon''ble Supreme Court in Dr. S.S. Khanna v. The Chief Secretary, Patna and another, 1983(2) RCR (Crl.) 508 has categorically held that the right of the accused comes into force only when he is summoned as an accused in a complaint case.

In this view of the matter, I have heard learned counsel for the petitioner, who has shown sufficient cause for his non-appearance on 23.11.2010. I am satisfied that wrong noting of date is a bona fide sufficient cause. It is settled law that if sufficient cause is shown, a complaint dismissed in default can be revived and restored to its original number. I, therefore, allow this petition and set aside the order dated 23.11.2010 passed by the learned Judicial Magistrate Ist Class dismissing the complaint of the petitioner, and restore the complaint of the petitioner to its original number. The learned Judicial Magistrate Ist class is directed to proceed in the complaint in accordance with law. The petitioner shall appear before the learned Judicial Magistrate Ist Class on 24.09. 2012.