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2001 DIGILAW 1269 (PNJ)

Ram Nath Mahlawat v. Bihari Lal

2001-11-09

V.M.JAIN

body2001
Judgment 1. This is a petition under S.482, Cr. P.C. filed by the complainant-petitioner, seeking the quashment of the order dated 8-1-1990 passed by the Judicial Magistrate, dismissing the criminal complaint filed by the complainant-petitioner under Ss. 499/500, I.P.C. and also seeking the quashment of the order dated 9-8-1991, passed by the learned Additional Sessions Judge, Rewari, dismissing the revision-petition of the complainant-petitioner and upholding the order dated 8-1-1990 passed by the learned Judicial Magistrate. 2. The facts in brief are that the complainant-petitioner filed a complaint under Ss. 499/500, I.P.C. against the accused-respondents. After accused-respondents were summoned and had put in appearance and were on bail, no one had put in appearance on behalf of the complainant on 8-1-1990, whereupon the learned Judicial Magistrate dismissed the criminal complaint and "discharged" the accused, vide order dated 8-1-1990. After the dismissal of the criminal complaint, the complainant had appeared before the learned Magistrate and had explained the circumstances under which he could not appear in the Court at the time when the complaint was dismissed by the learned Magistrate. However, the learned Magistrate, vide separate order dated 8-1-1990 showed his inability to do anything in this regard, observing that the order of dismissal had already been announced and the accused had already been discharged. Aggrieved against these orders of the learned Magistrate, the complainant-petitioner had filed the revision-petition before the Sessions Court. The learned Additional Sessions Judge, after hearing both sides and after perusing the record, vide order dated 9-8-1991, dismissed the revision-petition and up-held the order of the learned Magistrate. Aggrieved against these orders passed by the Courts below, the complainant-petitioner filed the present petition in this Court. 3. When the case came up before me on 27-9-2001, no one had put in appearance on behalf of the petitioner and at the request made on behalf of the counsel for the respondents, the case was adjourned to 16-10-2001 for arguments. On 16-10-2001, again no one had appeared on behalf of the petitioner and on request made on behalf of the counsel for the respondents, the case was adjourned to 9-11-2001 i.e. today, for arguments. Today again no one has put in appearance on behalf of the petitioner. 4. I have heard the learned counsel for the respondents and have gone through the record carefully. 5. Today again no one has put in appearance on behalf of the petitioner. 4. I have heard the learned counsel for the respondents and have gone through the record carefully. 5. The offence under S. 500, I.P.C. (defamation) is punishable with simple imprisonmnet for two years or fine or both. It is non-cognizable and bailable. Under S. 2(x) of the Code of Criminal Procedure, a warrant case has been defined to mean a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. Under S. 2(w) of the Code of Criminal Procedure, a summons case has been defined to mean a case relating to an offence and not being a warrant case. Since the offence under S. 500, I.P.C. is punishable with simple imprisonment for two years, it would be treated as a summons case. Chapter XX of the Code of Criminal Procedure is in respect of the trial of summons cases by Magistrates. Under S. 256, Cr. P.C., it has been provided that if the summons have been issued on a complaint and on the day appointed for the appearance of the accused, or any day subsequent thereto, to which the bearing may be adjourned, the complainant does not appear, the Magistrate shall acquit the accused, unless for some reason he thinks it proper to adjourn the hearing the case to some other day. It is also provided therein that where the complainant is represented by a pleader and the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. 6. In the present case, the complainant-petitioner failed to appear before the learned Magistrate on 8-1-1990 when the case was called for hearing, whereas all the accused, who were on bail, were present in person. Accordingly, the learned trial Magistrate, dismissed the complaint and order the "discharge" of the accused. As referred to above under S. 256, Cr. P.C., because of the absence of the complainant, the only order which could be passed by the Magistrate was to acquit the accused (where the case was fixed for appearance of the accused, or any day subsequent thereto, to which the hearing may be adjourned). In the present case, the learned Magistrate had passed the order dismissing the complaint and discharging the accused. 7. In the present case, the learned Magistrate had passed the order dismissing the complaint and discharging the accused. 7. In M. M. S. Bedi V/s. Union Territory of Chandigarh, 1987 (2) Rent CR 60, the order passed by the Magistrate dismissing the complaint was of discharge and not of acquittal. It was held by this Court that under S. 256 of the Code of Criminal Procedure, the accused had to be "acquitted" and not "discharged." It was further held that the use of wrong expression in the order would be of no consequence and the said order of discharge had to be read as an order of acquittal. Reliance in this regard was placed on the case reported as Bhim Sein V/s. Pritam Singh, 1978 CLR 50 and "Guest Keen Willian Ltd. V/s. Murari Lal and another", 1984 (1) Rent CR 152 : 1984 Cri LJ 554. 8. In view of the provisions of S. 256, Cr. P.C. and the law laid down in the above mentioned authorities, in my opinion, even if the trial Magistrate had passed the order of discharge, still it would be read as an order of acquittal. Under these circumstances, the only course open to the complainant-petitioner was to file appeal against acquittal, as provided under the Code of Criminal Procedure and he could not have filed a revision-petition before the Sessions Court and similarly the filing of the present petition under S. 482, Cr. P.C., would be of no help to the petitioner. In fact, the learned Additional Sessions Judge, while dismissing the revision-petition, had also taken similar view, having placed reliance on the law laid down by this Court, in M. M. S. Bedis case (supra). No fault can be found with the order dated 9-8-1991 passed by the learned Additional Sessions Judge. 9. In view of the above, finding on merit in this petition, the same is hereby dismissed.