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2006 DIGILAW 2704 (PNJ)

Jasmair Singh Gill v. Mohinder Singh

2006-07-12

body2006
Judgment 1. Prayer in the present petition, filed under Sec.482 of the cr. P. C, is for quashing of the orders dated 1.11.2003 and 2.4.2004 (Annexures P-3 and P-5), passed by the Additional Chief Judicial Magistrate, patiala, as also the order dated 10.7.2004 (Annexure P-7), passed by the additional Sessions Judge, Patiala. 2. The petitioner filed a private complaint, under Sections 452/323/324/325/326/506/307 of the IPC. During the course of evidence, the petitioner was detained by the police in another case, for the commission of offences under Sections 452/323/376/511/506 of the IPC. The petitioner, being in judicial custody, could not appear, before the trial Court and as no application for exemption was filed or the aforementioned fact brought to the notice of the trial Court, the complaint was dismissed in default, vide order dated 1.11.2003 (Annexure P-3 ). 3. The petitioner filed an application, for recalling the aforementioned order, which was dismissed, vide order dated 2.4.2004 (Annexure P-5 ). A revision, filed by the petitioner, before the Additional sessions Judge, Patiala met the same fate. 4. Counsel for the petitioner contends that the petitioner could not appear, before the trial Court, as he was in judicial custody on 1.11.2003, and was released on bail, on 12.11.2003. There is sufficient cause for his absence. His absence was neither intentional nor mala fide and, therefore, the impugned orders be set aside and the complaint restored to its original position. 5. Counsel for the respondents, on the other hand, contends that the complaint should not be restored, as the impugned orders do not suffer from any illegality. The petitioner did not appear, before the trial Court, which had no option but to dismiss the complaint. It is further contended that the petitioner should have instructed his counsel to file an application for exemption, from personal appearance by bringing the fact of his detention, to the notice of the trial Court. As the petitioner failed to do so, the present petition be dismissed. 6. I have heard learned counsel for the parties and perused the record. Admittedly, the petitioner was in judicial custody on 1.11.2003, the date on which the complaint was dismissed in default. It is also not denied that the petitioner was released on bail on 12.11.2003. The petitioner, thus, could not have appeared, before the trial Court, on 1.11.2003. 6. I have heard learned counsel for the parties and perused the record. Admittedly, the petitioner was in judicial custody on 1.11.2003, the date on which the complaint was dismissed in default. It is also not denied that the petitioner was released on bail on 12.11.2003. The petitioner, thus, could not have appeared, before the trial Court, on 1.11.2003. The contention of counsel for the respondents that the petitioner should have filed an application for exemption, from personal appearance, cannot be accepted. In so far as the orders dated 2.4.2004 (Annexure P-5), and dated 10.7.2004 (Annexure P-7), passed by the additional Chief Judicial Magistrate, Patiala, and the Additional Sessions judge, Patiala respectively, it was rightly held that the application for recalling, and the revision were not maintainable and such orders can only be set aside in the exercise of powers, under Sec.482 of the Cr. P. C by the High Court. 7. In view of what has been stated above, the present petition is allowed, the impugned order dated 1.11.2003 (Annexure P-3), passed by the Additional Chief Judicial Magistrate, Patiala, is set aside, and the complaint is restored to its original number and stage. The petitioner is directed to appear, before the Additional Chief Judicial Magistrate, Patiala on 7.9.2006, who shall proceed from the stage the complaint was dismissed on 1.11.2003.