Purshotam Radhey Shayam Khandelwal vs Hotel The Vaishno Devi

Y.P. Nargotra, J.—Though vide order dated 19.5.2001 the complainant stood exempted from personal appearance by the learned Judicial

Magistrate, Reasi on the application filed by him, the learned Magistrate vide order dated 3.9.2001 dismissed the complaint of the complainant

filed u/s 138 of Negotiable Instrument Act. However, the learned Magistrate thereafter by order dated 5.1.2002 restored the same. The accused

invoked the revisional jurisdiction u/s 435 Cr.P.C. of the learned Addl. Sessions Judge, Reasi. The learned Judge being of the view that the trial

Court could not have restored the complaint, as the criminal Court does not possess any power to recall or review its final order, has made this

reference in terms of Section 438 Cr.P.C. (old).

So far as the view expressed by the learned Sessions Judge is concerned, it is legally correct. However, the fact remains that while exercising

the revisional jurisdiction, which is a correctional jurisdiction, it was open to him to go into the validity or otherwise of the basic order by which the

complaint of the complainant stood dismissed. The learned Sessions Judge has noticed in the order that the complainant stood already exempted

till further orders by order dated 19.5.2001. In view of the exemption granted it was not obligatory on the part of the complainant to appear before

the Court on the date on which the complaint was dismissed. Therefore, dismissal of the complaint on the ground of non-appearance of the

complainant was erroneous and mistaken under misconception of facts of the case. The order dated 3.9.2001 dismissing the complaint is bad in

law. No party can be permitted to take advantage of the mistake of the Court.

This apart, the dismissal of the complaint due to non-appearance of complainant in summons case is not a general rule. A complaint can be

dismissed on that ground only if in the judicial discretion of the Magistrate adjournment of the case is not justified in the facts and circumstances of

the case.

In Associated Cement Co. Ltd. Vs. Keshvanand, , it was held by the Hon'ble Supreme Court as follows:

Two constraints are imposed on the Court for exercising the power under the Section 256. First is, if the Court thinks that in a situation it is proper

to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the

complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the Court

notices that the complainant is absent on a particular day the Court must consider whether personal attendance of the complainant is essential on

that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other

reason. If the situation does not justify the case being adjourned the Court is free to dismiss the complaint and acquit the accused. But if the

presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper

exercise of the power envisaged in the section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of

administration of criminal justice.

Even the presence of accused was not essential for the progress of the case, as on the date on which the complaint was dismissed no steps were

required to be taken by the complainant, only accused were to be summoned. Therefore, the complaint justifiably could be adjourned to next date.

The learned Sessions Judge, therefore, could have, in exercise of revisional jurisdiction, set aside the basic order of dismissal of the complaint itself

as well as the order of restoration and, thereafter, by his own order restored the complaint.

In the above circumstances, reference of the learned Sessions Judge is accepted and order dated 5.1.2002, whereby the complaint was

restored by the learned Judicial Magistrate, Reasi is set aside.

Further, the order dated 3.9.2001 is also set aside. Consequently, the complaint is remitted back to the trial Court for disposal under law after

summoning the accused afresh. Reference shall stand, accordingly, disposed of.