Ram Dular vs State of U.P. and Others

B.D. Agarwal, J.—Heard counsel for the parties.

Ram Dular, it appears, filed a complaint against Sheo Prasad, Lavlesh Kumar, Brahma Pati, Ramesh Chandra and Rais Chandra for offences under Sections 395/397/323/324 Indian Penal Code, P.S. Meja, Allahabad. The statement of the complainant was taken down u/s 200 Code of Criminal Procedure. This was followed by the statement recorded u/s 202 of the Code. The recording of statement under that provision was spread over several dates and the last witness examined in that connection was on August 10, 1983. He was the Medical Officer concerned. On August 10, 1983 at the conclusion of the statement recorded u/s 202 Code of Criminal Procedure the Special Judicial Magistrate, Allahabad seized of the case directed that the same be put up for orders on August 18, 1983. On August 18, 1983 it was adjourned to 22nd August, 1983. On August 22, 1983 the order passed was as under:

Case called out several times. No body is present, Dismissed in default.

Aggrieved against this Ram Dular the complainant had moved this Court u/s 482 of the Code of Criminal Procedure, which is registered as Criminal Miscellaneous application No. 1091 of 1984. Against the same order he has filed the Criminal Revision No. 475 of 1984.

Learned Counsel contends that subsequent to the recording of the statement u/s 202 of the Code, the order made by the court below dismissing the complaint in default was without jurisdiction. In this connection a reference may be made to Section 203 of the Code which provides that if, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry of investigation (if any) u/s 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing. This indicates clearly that when the statements u/s 202 of the Code of Criminal Procedure have concluded it is upto the Magistrate to form opinion on the relevant material whether there exists sufficient ground to proceed. In so far as the complainant is concerned there is virtually nothing more left for him to do. The absence of the complainant, therefore, in person or through his counsel on the dates fixed subsequent to the conclusion of the recording of the statements u/s 202 of the Code could not be taken to be of any consequence. Whatsover material the complainant had to adduce in support of his case, he had already put forward and the statements had concluded as recorded by the Magistrate himself. In not applying his mind to the material thus brought on the record and instead proceeding to dismiss the complaint in default, the Magistrate may not be said to have acted according to law and this jurisdictional error on his part is manifest on the record.

In view of the above, since the impugned order has the effect to terminate the proceedings altogether and since it amounts virtually to adjudicating the grievance set up by the complainant, this may not be placed in the category of merely interlocutory order, a revision against that order thus in my opinion lies in these circumstances. For these reasons in so far as the criminal revision No. 475 of 1984 is concerned, the same is liable to be allowed and the criminal miscellaneous application u/s 482 of the Code of Criminal Procedure may be dismissed in view thereof.

In so far as the other criminal revision No. 257 of 1985 is concerned the same is directed against the order of the Additional Sessions Judge, Allahabad dated 7th January, 1985 framing charges against the revisionists therein for certain offences. The counsel for the revisionists states that he does not press this revision and this accordingly is dismissed as such.

For the above, Criminal Miscellaneous revision No. 475 of 1984 is allowed. The order dated 22nd August, 1983 made by the Special Judicial Magistrate, Allahabad is set aside. The court below is directed to proceed with and conclude the proceedings in accordance with law expeditiously.

The Criminal Miscellaneous Application No. 1091 of 1.984 is dismissed.

The Criminal Revision No. 257 of 1985 is also dismissed.