Raghubir Singh vs State of Uttar Pradesh and Another

B.L. Yadav, J. 1. This revision u/s 397/401 of the Code of Criminal Procedure, 1973 (for short the Code), is directed against the order dated 12.2.86 passed by 1st Additional Sessions Judge, Saharanpur, allowing the revision and setting aside the order dated 3.9.85 passed by the Munsif Magistrate, Hardwar, whereby the application of Kewla Nand Bhartiya, opposite party No. 2 for recalling the order dated 13.5.85, passed u/s 256 was rejected.

The facts of the case are few and simple and they are these. A complaint u/s 500/501/502 of the IPC was filed by opposite party No. 2 against the applicant in the Court of Munsif Magistrate, Hard war, Saharanpur and that was tried as summons case by the Magistrate under Chapter 20 of the Code. The complainant appears to have Jed some evidence in pursuance of the procedure u/s 254 of the Code, where the Magistrate proceeds to hear the prosecution and take all such evidence as was to be produced in support of I the prosecution and to also hear the accused But just after leading some evidence the complainant was absent on 13.1.85 and no counsel appeared on his behalf nor any witness in support of his case was present in the Court. The learned Magistrate, in view of the procedure u/s 256 of the Code, passed an order that the prosecution evidence was closed and. the case was fixed on 23.5.85 for statement of the accused u/s 313 of the Code. Against that order a restoration application was filed by the complainant, the opposite party No. 2, but the same was rejected by order dated 3.9.85. Against that order a revision was filed before the learned Sessions Judge, Saharanpur, and the same was allowed by the order dated 12.2.86 and the parties were directed to appear before the Additional Chief Judicial Magistrate, Saharanpur, and the learned Magistrate was directed to give opportunity to adduce evidence. Against that order the present revision has been filed.

Learned Counsel for the applicant urged that in view of Section 256 of the Code, the Magistrate was justified in passing the order closing the prosecution evidence and directing the accused to be examined in view of Section 313 of the Code. It was urged that if on the adjourned date in a complaint case tried as summons case, the complainant did not appear, the Magistrate would have been justified to pass an order of acquittal against the accused and what the Magirtrate did, was less than that, inasmuch as closing the prosecution case and -directing the accused to be examined without ascertaining the veracity of the prosecution case. It was urged that the order passed in the revision by the learned Sessions Judge was liable to be set aside.

Learned Counsel for the State on the other hand urged that the order of the learned Sessions Judge was correct, inasmuch as the Magistrate could even acquit the accused on non-appearance of the complainant or in the absence of any evidence on his behalf. But he could not close the prosecution evidence and direct the accused to be examined u/s 313 of the Code.

Having heard the learned Counsel for the parties I am of the view that the order passed by the learned Magistrate appears to be correct. Ex abundant cautela, the statutory provisions of Section 256 of the Code may be set out below:

Non-appearance or death of complainant -

(1) If the summons has been issued on complaint and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day.

The aforesaid provision of Section 256, so far as it is relevant for the present case has to be read along with Section 254 of the Code, where it was provided that if the Magistrate does not convict the accused u/s 252 or Section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution and also to hear the accused and take all such evidence as he produces in his defense. u/s 255, the Magistrate was required after taking evidence u/s 254 and after talking further evidence, if necessary, to consider as to whether the accused was to be acquitted or not. In case he was found not to be guilty, he shall record an order of acquittal. But in case the case was adjourned to some other date and on that date the complainant does not appear, Section 256 enacts that the Magistrate shall acquit the accused. It was obligatory on his part to have acquitted the accused. But it was not done, rather an order dated 13.5.85 was passed closing the prosecution evidence and directing the accused to be examined u/s 313 of the Code. In fact, an order was passed which was less harmful than contemplated by Sections 255 and 256 of the Code.

In the present case I am reminded of the maxim i.e. '' Omne majus continet inse minus '', which obviously means that every greater contains in itself the less. In the present context if the Magistrate was given power u/s 256 even to acquit the accused, the present applicant, on account of non appearance of the complainant or his witnesses, it was equally open to him to close the prosecution evidence which was less stringent than acquittal, and to direct the accused to be examined u/s 313 of the Code. But the Magistrate appears to have chosen a lesser harm to the prosecution case.

The matter can be viewed from another angle. The result of the order passed by the learned Sessions Judge allowing the revision and setting aside the order dated 3.9.85 dismissing the restoration application, and the order dated 13.5.85 closing the prosecution evidence and directing the accused to be examined u/s 313 of the Code has been set aside. The Code of Criminal Procedure is self contained Code containing the procedure for trial of the complaint case as summons case and also as warrant case. Under Chapter 20 there is no procedure for filing restoration application against the ex-parte order on account of absence of the complainant and its witnesses. The analogy under Order 9 Rule 13 of the CPC or Order 17 Rules 2 and 3 cannot be imported. The procedure provided u/s 256 of the Code has to be followed.

In Maj. General A.S. Gauraiya v. S.N. Thakur 1986 AWC 995 : 1986 A CrR 500 their Lordships of the Supreme Court interpreting Section 250, held as follows:

So far as the accused is concerned, dismissal of the complaint for nonappearance of the complainant, or his discharge or acquittal on the same ground is final order and in the absence of any specific provision in the Code, the Magistrate cannot exercise any inherent jurisdiction to restore the case. The second complaint is permissible under law if it can be brought within the limitation imposed by the Supreme Court in P.N. Talukdar v. Saroj Ranjan Sarkar 1962 SC 876. Filing the second complaint is not the same thing as reviving a dismissed complaint after recalling the earlier order of dismissal. The Code of Criminal Procedure does not contain any provision enabling the criminal court to exercise such an inherent power. Also what the Court has to see is not whether the Code contains any provision prohibiting the Magistrate from entertaining an application to restore a dismissed complaint, but the task should be to find out whether the said code contains any provision enabling a Magistrate to exercise an inherent jurisdiction which he otherwise does not have.

I am accordingly of the view that the order of the learned Sessions Judge allowing the restoration application filed before the Magistrate in recalling the order dated 13.5.85 was illegal, inasmuch as there was no provision for restoration application being filed under the Code of Criminal Procedure if an order has been passed by the learned Magistrate in that case tried as a summons case.

In view of the discussions made hereinbefore, the present revision succeeds and is allowed. The order dated 12.2.86 passed by the 1st Addl. Sessions Judge, Saharanpur allowing the revision and remanding the case to the learned Additional Chief Judicial Magistrate is set aside and the order of the learned Magistrate dated 3.9.85 is upheld. The result is that the learned Magistrate would examine the accused u/s 313 and after considering the evidence led by the complainant before 13.5.85, an appropriate order would be passed. The matter has dragged on for too long. What''is required, however, is expidition.