Kiran Dev vs Chet Kaur

Harbans Singh Rai, J.

The petitioner through this revision has challenged the dismissal of the complaint ordered by the SubDivisional Judicial Magistrate, Rajpura, vide his order dated 2911985

Kiran Dev had filed a complaint under Sections 406/420/465/467/468/471 and 120B of the Indian Penal Code. The learned SubDivisional Judicial Magistrate Rajpura, summoned the respondents under Section 406/420//465/467/468/471 and 120B, IPC. The learned Magistrate thereafter framed a charge against the respondents. The respondents went in revision and this Court vide its order dated 13111984 quashed the charge and the order for framing the charge, the case was sent back for passing fresh order. The parties were directed to appear in the Court of Magistrate on 10.12.1984.

On 10.12.1984, the accused (respondent No. 2) was present in the trial Court, but the complainant was not present. An application for exemption was made. The learned Magistrate directed Shri Mohinder Singh, Advocate, who appeared for the complainant to produce the complainant on the next date. Only Dhanvir Singh accused respondent was present but the complainant was absent. An application for exemption was also made on her behalf. On the next date of hearing, the complainant was again not present. More time was granted to Shri Mohinder Singh, Advocate, to produce the complainant and the case was adjourned to 24.12.1984.

On 24.12.1984, Shri Mohinder Singh, Advocate, filed an application stating that the complainant is unable to appear in person as he is settled in England and he is not allowed to enter the Punjab State as the State of Punjab is declared a disturbed area and foreign nationals are not allowed to enter Punjab State. The learned Magistrate adjourned the case. Ultimately on 29.1.1985, the learned Magistrate dismissed the complaint. The petitioner has challenged the dismissal order vide this revision.

It is not disputed that the complaint has been dismissed solely on the ground that the complainant was not present.

Mr. H.S. Gill, learned counsel for the petitioner has submitted that dismissal order, is bad in the eye of law as provisions of Section 249, Criminal Procedure Code, are applicable to the case. He has submitted that the offences are not lawfully compoundable and are cognizable. So, in this situation the Magistrate could not dismiss the complaint and should have proceeded as required under Section 249, Criminal Procedure Code. This position of law that the complaint could not be dismissed is not contested by Mr. Bali, learned counsel for the respondents.

Section 249, Criminal Procedure Code, clearly states that in the absence of the complainant, the complaint can only be dismissed if the offence is lawfully compoundable and not cognizable. In this complaint the offences do not satisfy these conditions. So, I do not have any hesitation in setting aside the order of dismissal of the complaint passed by the learned Magistrate on 29.1.1985. This complaint is restored and is sent back to the Magistrate for proceeding in accordance with law. The complaint will be taken up by the trial Magistrate on 14.10.1987.

It has been prayed by the learned counsel for the respondents that Smt. Chet Kaur respondent accused is an old day of 80 years of age and is unable to move about and that her personal appearance may be exempted. Taking into consideration the age and health of Smt. Chet Kaur, I direct that her personal appearance may be exempted and she be allowed to appear through her counsel during the trial by the learned Magistrate. With these observations, this petition is allowed.