Jltendra Kumar Gupta vs State of U.P.& Anr

J.C. Mishra, J.—This revision is directed against the order dated 1671999 passed by the Sessions Judge, Mirzapur allowing the revision setting aside the order dated 12199 by which the complaint was dismissed under Section 256, Cr. P.C and directing the Magistrate to decide the case in accordance with law.

The learned C.J.M. held that the counsel for the complainant had come but he had not filed any application for adjournment. None responded from the side of the complainant when the case was called at 3.00 p.m. The learned Magistrate observed that no reason for non appearance of the complainant has been assigned nor any witness was present. Therefore, the complaint was liable to be dismissed under Section 256, Cr. P.C,

The revisional Court held that the Magistrate had reserve of discretion but he had dismissed the complaint without any reason whether discretion should be exercised in favour of the accused dismissing the complaint. He also considered that mere non appearance of the complainant on only one day was not sufficient reason for dismissing the complaint; more so when the complainant was regularly appearing and the accused was adopting dilatory tactics to delay the disposal of the trial.

The learned Counsel for the revisionist contended that since the order dismissing the complaint amounted to acquittal the order was not revisable. He contended that as the order is appealable the complainant had no right to invoke the revisional jurisdiction and the order passed by the Sessions Judge is without jurisdiction.

It is true that the order of the dismissal of the complaint under Section 256, Cr. P.C. amounts to acquittal and it is equally true that the complainant has right to file appeal with leave of the High Court by virtue of Section 378, Cr. P.C. The only question that requires consideration is whether the revisional Court could interfere with the order in revisional jurisdiction if no appeal has been preferred.

It is true that the revisional Court cannot convert an order of acquittal into an order of conviction. However, an order of acquittal can be set aside at the instance of a private party though no appeal has been preferred. The jurisdiction, however, should be exercised only in exceptional cases when there is some glaring defect in procedure or there is manifest error on the point of law or there has been a flagrant error and miscarriage of justice.

I find that the revisional Court had power to interfere with the order of acquittal. The view taken by the revisional Court cannot be said to be erroneous.

The revision is dismissed.

Revision dismissed.