Full Judgment Text
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CASE NO.:
Appeal (crl.) 319 of 2007
PETITIONER:
Satish Sharma
RESPONDENT:
Pinki Dhawan
DATE OF JUDGMENT: 12/03/2007
BENCH:
K.G. BALAKRISHNAN, R.V. RAVEENDRAN & V.S. SIRPURKAR
JUDGMENT:
JUDGMENT
O R D E R
(ARISING OUT OF S.L.P. (CRL.) 1453 OF 2005)
Leave granted.
The appellant herein filed a complaint before the Chief
Judicial Magistrate (CJM), Gurgaon against the respondent
and another alleging that they had committed offences
under Sections 448, 427 read with Sections 34, 504 and 506
of the Indian Penal Code (IPC). When the complaint was
posted for preliminary enquiry, the appellant failed to appear
before the Court and the complaint was dismissed. The
appellant again filed a complaint on 08.02.1994 raising the
very same allegations and, as part of the enquiry, the
appellant gave sworn statement in support of the complaint.
Two other witnesses had also given sworn statements
supporting the appellant’s contentions. The said complaint
was posted for further steps, and on that day the appellant
remained absent and the complaint was dismissed by the
CJM on 11.11.1995. On 16.11.1995 the appellant again
filed another complaint alleging the very same allegations
against the respondent and another. On 23.11.1995 again
the complainant’s statement was taken and he moved an
application that the statements taken previously may be
taken as part of the complaint. The learned Magistrate
allowed this plea and, by an order dated 13.12.1995, took
cognizance of the offence under Sections 448, 427, 506 read
with Section 34 IPC. Aggrieved by the issue of summons,
the respondent herein filed a criminal revision before the
Sessions Judge, Gurgaon. The learned Additional Sessions
Judge, Gurgaon allowed the revision and remanded the case
for trial. Aggrieved by the said order, respondent filed a
Criminal Miscellaneous Petition before the High Court. The
High Court by the impugned order dismissed the complaint
by holding that by dismissal of the earlier two complaints by
the CJM, the appellant herein was not entitled to file fresh
complaint and it was an abuse of the process of the Court
and, further observed that by the dismissal of the complaint
by the Magistrate, the accused stood acquitted of the
charges, therefore the subsequent criminal complaint was
not maintainable. This order is challenged by the appellant
herein.
We have heard the learned counsel for the appellant
and the learned counsel for the respondent.
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It is admitted by both sides that the first two
complaints were dismissed by the CJM before any summons
was issued to the accused. The CJM had not taken
cognizance of any offence on the basis of the first two
complaints. The counsel for the appellant argues that as the
summons was not issued in first two complaints, the
dismissal of the third complaint under Section 256 of the
Criminal Procedure Code (Cr.P.C.) was not warranted. The
plea raised by the appellant is correct. Section 256 of the
Cr.P.C. reads as follows :-
"256. 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:
Provided that where the complainant is
represented by a pleader or by the officer
conducting the prosecution or where the
Magistrate is of opinion that the personal
attendance of the complainant is not
necessary, the Magistrate may dispense with
his attendance and proceed with the case.
(2) The provisions of sub-section (1) shall,
so far as may be, apply also to cases where
the non-appearance of the complainant is
due to his death."
Section 256 of the Cr.P.C. is applicable only in a case
where summons had been issued to the accused based on a
complaint filed by the complainant and, only if the
complaints were dismissed after issuance of the summons to
the accused, then only the accused could claim that he had
been acquitted by the Court.
In this case, in the earlier two complaint proceedings
the accused was not before the Court and, therefore, the
accused cannot be deemed to have been either discharged
or acquitted and it is only in the third complaint filed by the
appellant, the Magistrate had taken cognizance and the
summons was issued to the accused. The learned Single
Judge of the High Court was not justified in observing that
the accused-respondent had been acquitted in the earlier
two complaints as the accused himself was not a party in
such proceedings. It was not an abuse of the process of the
Court as the accused was not, in any way, prejudiced by any
such previous proceedings as the accused got summons only
in the third complaint proceedings.
In the result, the impugned order of the High Court is
set aside and the order passed by the Additional Sessions
Judge, Gurgaon is upheld. The CJM shall proceed with the
complaint in accordance with law.
The Appeal is allowed accordingly.