Nusrat Yasmin @ Nusrat Yasmeen vs State Of Jharkhand & Anr

Heard the parties.

In this application, the petitioner has challenged the order dated 10.05.2019, passed in Cr. Revision No. 69 of 2018, by which the Principal District

Judge, Ramgarh has allowed the revision application filed by the complainant and restored the Complaint Case no. 12 of 2016 to its original file.

The complainant had filed a complaint before the Judicial Magistrate under Section 138 of N.I. Act. In the aforesaid case, the statement of the

complainant was recorded on Solemn Affirmation in terms of Section 200 Cr.P.C. Thereafter, the complainant produced his witnesses, whose

statements were also recorded in terms of Section 202 Cr.P.C. Thereafter, the Magistrate passed an order on 12.02.2018 dismissing the complaint on

default in terms of Section 203 Cr.P.C.

The aforesaid order was challenged before the revisional court where the revisional court set aside the order dated 12.02.2018 and restored the

complaint to its original file.

Learned counsel for the petitioner submits that the revisional court has committed a grave illegality by allowing the revision application and passing

the impugned order. He submits that the order passed by the Magistrate on 12.02.2018 is not a final order wherein the right and liability of the party

and case is finally decided, thus the same can be said to be an interlocutory order and, therefore, the application under Section 397 Cr.P.C is not

maintainable. In support of his contention, he refers to a judgment of the Hon’ble Supreme Court passed in the case of “Amar Nath & Others

â€" versus- State of Haryana & Others, reported in (1977) 4 SCC 137â€​.

After hearing the parties, I find that the facts are admitted in this case. In the complaint case after examination of the complainant under Section

200 Cr.P.C. and his witnesses under Section 202 Cr.P.C., the complainant did not appear on 12.02.2018, when the Judicial Magistrate dismissed the

complaint after holding that the case is running for argument on the point of cognizance from 18.08.2016, i.e. for one and a half years and today, i.e.

12.02.2018 also neither the complainant is present in person nor he is represented by his lawyer nor the complainant had argued on the point of

cognizance. It has been further held that no petition for adjournment seeking time was also filed by him. It has also been mentioned that for one and a

half years the case was not heard on the point of cognizance. Thus, the Magistrate dismissed the complaint under Section 203 Cr.P.C.

When I go through the aforesaid order, I find that the aforesaid order is not only wrong but absolutely an illegal order. From the order sheet, which

has been annexed, I find that the on the dates prior to 12.02.2018, the complainant was represented through his lawyer on regular occasions. Thus, the

finding of the court that the complainant did not appear was not a correct finding. He did not appear only on the date when the case was dismissed for

default.

Now, the question is as to whether a complaint can be dismissed on default after the statement of the complainant in terms of Section 200 Cr.P.C.

and his witnesses in terms of Section 202 Cr.P.C has been recorded or not. At this stage when the statement under Section 202 Cr.P.C. has been

recorded, neither the complainant nor the accused has got any role to play at the time of taking cognizance. It is the court who has to decide as to

whether cognizance of an offence has to be taken or not. This decision has to be taken by the Court basing on the statement made in the complaint,

the statement of the complainant made under Section 200 Cr.P.C and the statement of the witnesses recorded in terms of Section 202 Cr.P.C. The

Code does not envisage any argument by any party at the stage of taking cognizance. Thus, the Court got misdirected while coming to a conclusion

that the complainant has not argued on the point of cognizance. Whether the cognizance has to be taken or not is the decision of the Court which the

court has to arrive at, independently, only after going through the complaint petition and the statement of the witnesses. At this stage the complainant

has got no role to play. His role is over with the stage of examination of the enquiry witnesses. If the materials are before the Court, the Court has to

take cognizance independently without taking any assistance either from the complainant or from the accused. This is an independent action, which

the court has to perform on its own, where none of the parties has got any role to play. Thus, once the stage of recording statement of enquiry witness

in terms of Section 202 Cr.P.C. is over, the court either has to take cognizance or may not take cognizance on the merits of the case, after invoking

section 203 Cr. P.C. No complaint can be dismissed for default after the enquiry witnesses were examined.

In this case, I find that by giving reference of Section 203 Cr.P.C. the Magistrate has dismissed the complaint on default. Section 203 Cr.P.C also

does not provide for dismissing a complaint for default. It provides that only after considering the statement on oath of the complainant or the

witnesses if there is no ground to proceed then only the complaint can be dismissed. This clearly suggests that while dismissing the complaint also the

court has to apply its mind and come to the conclusion, after going through the complaint, the statement of the complainant and the statement of the

witnesses that no ground is there to proceed. There is no provision in the aforesaid Section also which permits the court to dismiss the complaint on

default once the statement under Section 202 Cr. P.C. has already been recorded.

In view of what has been held above, the dismissal of the complaint by the Magistrate on default is absolutely an erroneous decision, which is not

supported by any law. I find that the revisional court thus, has correctly allowed the revision and revived the complaint petition. Thus, I find no illegality

in the impugned order.

The contention of the petitioner on the maintainability of the revision is not accepted. The order of dismissal of the complaint, even on default, is a

final order and is revisable. The revisional court was correct in entertaining the revision. The Judgment of the Hon’ble Supreme Court cited by the

petitioner does not help the petitioner.

Accordingly, having found no merits, this criminal miscellaneous petition stands dismissed.

Let a copy of this order be circulated to all the Principle District & Sessions Judge of the State including the Judicial Commissioner, Ranchi for

communicating to the Judicial Magistrates. A copy should also be forwarded to the Judicial Academy, Jharkhand.