Shyam Verma vs Malti Singh

Heard on application under Section 378(4) of Cr.P.C. for grant of leave to appeal.

On due consideration and for the reasons mentioned therein, leave to appeal is granted.

The present petition has been preferred against the order dated 19.09.2019 passed by the learned Judicial Magistrate First Class, Bastar, District Jagdalpur (C.G.), in Complaint Case No.624/2018, whereby the said court has dismissed the case for want of prosecution.

Learned counsel for the petitioner submits that due to some difficulty, the complainant or his advocate could not appear before the Trial Court on 19.09.2019 and the matter was listed for complainant’s evidence, but the Trial Court has simply dismissed the case for want of prosecution without affording any opportunity of hearing to the complainant. Therefore, the order impugned may kindly be set aside.

On the other hand, learned counsel for the respondent opposes the contention made by the counsel for the petitioner.

In the matter of Associated Cement Co. Ltd. Vs. Keshvanand reported in (1998) 1 SCC 687, Hon'ble the Apex Court held as under:-

“18. Reading the Section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the Section. 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 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.”

Again, in the matter of Mohd. Azeem Vs. A. Venkatesh & another reported in (2002) 7 SCC 726, Hon'ble the Apex Court held that in a proceeding under the Act, 1881, the dismissal of the complaint case is not proper, legal and justified on the single default of non appearance on the part of the complainant.

On 19.09.2019, the case was listed for complainant’s evidence but the complainant or his advocate did not appear before the Court, as such the Trial Court dismissed the case for want of prosecution. The Trial Court could have adjourned the case on some other date as per the provisions of Section 256(1) CrPC and dismissal of the complaint case was not the only option before the Trial Court. The Court should have provided an opportunity for appearance of the complainant on some other date before dismissing the case and it should not have sent the case to record room without deciding issues between the parties but the same has not been done in the present case, therefore, the order passed by the Trial Court is not sustainable.

Accordingly, the order impugned passed by the Trial Court is set aside. The Trial Court is directed to proceed further in the case after providing opportunity to the complainant to adduce his evidence and thereafter shall decide the case on merits.

The petitioner is directed to appear before the Trial Court on 02.01.2023 for further proceedings.