Subodh Kumar Singh vs Mithlesh Kumar Sahu And Anr

Heard on IA No.01/2019 for condonation of delay in filing the application under Section 378(4) of the CrPC.

On due consideration of the reasons mentioned in the application, the same is allowed and the delay of 468 days in filing the application is hereby condoned.

Also heard on application under Section 378(4) of CrPC for grant of leave to appeal.

This petition has been preferred against Order dated 11.4.2018 passed by Chief Judicial Magistrate, Korba (CG) in Criminal Case No. 1242/2014 wherein the said Court dismissed the complaint filed by the petitioner for want of prosecution.

It appears from the order sheet that bailable warrants were issued against the respondents by the said Court but from the record it is not clear whether the warrants were served or not or whether the service report is awaited. When the case was fixed for the appearance of the respondents, presence of the petitioner was not compulsory.

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 Section 138 of the Negotiable Instruments Act, 1881, the single default in appearance on the part of the complainant, the dismissal of the complaint case is not proper, legal and justified.

Dismissal of the complaint case was not the only option before the trial Court. It should have adjourned the case for some other date as per the provisions of Section 256(1) CrMP.

In view of this Court, the case should have been decided on merits and it should not have sent to record room without deciding issues between the parties and without providing opportunity to adduce evidence. But that is not done in the present case, therefore, the order passed by the trial Court is not sustainable.

Accordingly, order passed by the trial Court is set aside by allowing the petition. After appearance of the respondent, the trial Court is directed to proceed with the case on merits.

The petitioner to appear before the trial Court on 07.01.2020 for further proceedings.