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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.