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2008 DIGILAW 1484 (BOM)

Gajanan Parshuram Chopade v. Mahatma Jyotirao Phule Gramin Bigarsheti Sahakari Patsanstha

2008-10-10

A.A.KUMBHAKONI, F.I.REBELLO

body2008
JUDGEMENT 1. This matter has been referred by a learned Single Judge for deciding the following question :- “Whether a revision application under section 397 of the Criminal Procedure Code, 1973 for challenging the order of dismissal of the complaint under section 256 of the said Code, 1973 is maintainable or whether the only remedy available against the said order is to prefer an appeal under section 378 of the said Code of 1973?” 2. The learned Single Judge has referred the aforesaid question to the Division Bench as the learned Single Judge found that conflicting views were expressed by the learned Single Judges of this Court in that regard. The reference order dated 1st August 2008 refers to the following judgements delivered by the learned Single Judges of this Court viz. : (a) holding that the only remedy available is that of an appeal and that revision application is not maintainable:- (i) Om Gayatri and Company vs. State of Maharashtra reported in 2006-Cri.L.J.-601; (ii) Raja s/o Dr.S.P.Upadhaye vs. State of Maharashtra reported in 1993(3)-Mh.L.J.-397; (b) a revision application is maintainable – Mahendra Indermal Borana vs. Anil Shankar Joshi and another reported in 2004(1)-Bom.C.R.(Cri.)-805. 3. Before resolving the conflict between the aforesaid two views, firstly, we will refer to the facts of this case which may have some relevance for the view that we may take ultimately while answering the reference. The respondent herein is the original complainant who filed a private complaint against the petitioner-accused u/s 138 of the Negotiable Instruments Act. The complaint was numbered as STC N.932 of 1999. The learned JMFC, Madha issued process against the accused for the offences punishable under sections 135 and 138 of the Negotiable Instruments Act. The accused appeared in response to the process, pleaded not guilty and claimed to be tried. The plea of the accused was recorded on 25th May 2000. The matter was adjourned on several occasions. It was then posted for adducing evidence of the complainant. The JMFC was pleased to dismiss the complaint by his order dated 24th August 2004 for non appearance of the complainant by passing an order u/s 256 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the said Code” for the sake of brevity). The aforesaid order dated 24th August 2004 reads thus :- “ORDER Complainant and his advocate find absent when called. The aforesaid order dated 24th August 2004 reads thus :- “ORDER Complainant and his advocate find absent when called. Advocate for accused has filed application Exhibit-55 for dismissal of the complaint. Hence, complaint is hereby dismissed under the provisions of S.256 of the Cr.P.C. and accused hereby acquitted. His bail bond stands cancelled. Sd/-” It is thus clear that the learned JMFC not only dismissed the complaint on the ground that the complainant and his advocate were absent but also was pleased to pass a specific order of acquittal of the accused. 4. Section 256 of the Code reads thus :- “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 assistance 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 nonappearance of the complainant is due to his death.” A perusal of this section demonstrates that powers under this section are exercised after the summons has been issued on a complaint. If on the day appointed for appearance of the accused or any day subsequent thereto to which hearing has been adjourned, if the complainant does not appear, the magistrate in his discretion may adjourn the hearing of the case to some other day. However, if the magistrate in his discretion does not think it proper to adjourn the hearing, the Magistrate has to proceed to acquit the accused, under the proviso in the situations set out there. Alternativelty the Magistrate can proceed with the case. We are not concerned with the proviso. 5. However, if the magistrate in his discretion does not think it proper to adjourn the hearing, the Magistrate has to proceed to acquit the accused, under the proviso in the situations set out there. Alternativelty the Magistrate can proceed with the case. We are not concerned with the proviso. 5. The issue therefore to be considered is whether in a case of a private complaint, when the Magistrate has passed an order u/s 256 of the Code acquitting the accused, the complainant has remedy of a revision u/s 397 of the Code or whether the remedy for the complainant is by way of preferring an appeal u/s 378 of the Code? 6. The following judgements, which are all delivered by the learned Single Judges of this Court, have taken a specific and clear view that in such a case the only remedy available to the complainant is to file an appeal. All these judgements set out hereunder of the learned Single Judges of this Court specifically hold that a revision filed by the original complainant is not maintainable viz. : (i) Raja s/o Dr.S.P.Upadhaye vs. State of Maharashtra reported in 1993(3)-Mh.L.J.-397; (ii) Om Gayatri and Company vs. State of Maharashtra reported in 2006-Cri.L.J.-601; (iii) Maharashtra Small Scale Industries Development Corpn. vs. Pradip Vakharia and another reported in 2007(2)-Bom.C.R.-620. Apart from the learned Single Judges of our High Court taking the aforesaid view, other High Courts have also taken a similar view. We may refer to some of the judgements which are :- i.Kalpana Tyagi vs. Sneh Lata Sharma reported in 2003-Cri.L.J.-3395 (Delhi High Court); ii.Krishna Kumar Gupta vs. Mohammed Jaros reported in 2003-Cri.L.J.-102 (Delhi High Court); iii.Krishna Kumar Gupta vs. Mohammed Jaros reported in 2003-Cri.L.J.149 (Delhi High Court); iv. Him Advances & Savings Pvt.Ltd. vs. Ravinder Kumar Gupta reported in 2002-Rl.L.J.04741 (H.P.High Court); v.Vinay Kumar vs. State of U.P. reported in 2007- Cri.L.J.-3161 (A.P.High Court); vi.Ram Nath Mahlawat vs. Bihari Lal reported in 2002- Cril.L.J.-1710 (Punjab & Haryana High Court); vii.H.P.Financial Corporation vs. Continental Spinners Ltd. reported in 2003-Cri.L.J.-2750 (H.P.High Court). 7. As against the aforesaid judgements of the learned Single Judges of this Court, a learned Single Judge of this Court has taken a view that a revision preferred, in such a situation by the complainant against the order of dismissal of the complaint, was very much maintainable. 7. As against the aforesaid judgements of the learned Single Judges of this Court, a learned Single Judge of this Court has taken a view that a revision preferred, in such a situation by the complainant against the order of dismissal of the complaint, was very much maintainable. This judgement of the learned Single Judge is delivered in case of Mahendra Indermal Borana vs. Anil Shankar Joshi and another reported in 2004(1)-Bom.C.R.(Cri.)-805. The learned Single Judge for that purpose has relied on the judgement of the Supreme Court delivered in the case of Major General A.S.Jauraya and another vs. S.N.Thakur and another reported in AIR-1986-Cri.L.J.-1074 in support of the view so taken. 8. In the case of Major General A.S.Jauraya (supra), the Supreme Court was deciding the following question :- “The question for consideration was whether a Magistrate can restore a complaint to his file by revoking his earlier order dismissed for non appearance of the complainant and proceed with it when an application is made by the complainant to revive it?” The facts in which the aforesaid question was decided by the Supreme Court, in nut shell, were as under. The appellants before the Supreme Court were accused in a complaint filed by the first respondent before JMFC.. The JMFC issued summons requiring the accused to remain present before it on the day on which neither the complainant nor the accused were present and, therefore, the following order was passed :- “Accused not present. None present for the complainant also. The complaint is hereby dismissed in default and for want of prosecution.” An application for restoration was filed by the complainant and the Magistrate was pleased to restore the complaint with the following order :- “I heard Shri T.S.Sodhi. The complaint be restored. Summon accused for 21/2.” The Supreme Court thereafter delivered a judgement in the case of Bindeshwari Prasad Singh vs. Kali Singh reported in AIR-1975-SC-2432 holding that no Criminal Court had any inherent jurisdiction which is not provided for in the Criminal Procedure Code. The accused moved an application before the Magistrate contending that the aforesaid order of restoration was without jurisdiction as the Magistrate did not have inherent powers to review and recall his earlier orders. This application was rejected and, therefore, the accused filed the revision before the Additional Chief Metropolitan Magistrate who was pleased to dismiss the same. The accused moved an application before the Magistrate contending that the aforesaid order of restoration was without jurisdiction as the Magistrate did not have inherent powers to review and recall his earlier orders. This application was rejected and, therefore, the accused filed the revision before the Additional Chief Metropolitan Magistrate who was pleased to dismiss the same. Another revision application of the accused before the High Court was also dismissed. Hence, appeal to the Supreme Court. 9. Dealing with the aforesaid order of the Magistrate, the Supreme Court relied on its judgement delivered in the case of Bindeshwari Prasad Singh (supra) and quoted a passage therefrom in its judgement in paragraph 11. The Court held that unlike a Civil Court a Criminal Court has no inherent jurisdiction and the jurisdiction is only to the High Court. A part of the passage quoted by the Supreme Court from the case of Bindeshwari Prasad Singh (supra) reads thus :- “In these circumstances, therefore, the learned Magistrate had absolutely no jurisdiction to recall the order dismissing the complaint. The remedy of the respondent was to move the Sessions Judge or the High Court in revision.” In our view, the judgement of Supreme Court delivered either in the case of Major General A.S.Jauraya (supra) or in the case of Bindeshwari Prasad Singh (supra) cannot be considered as an authority for the proposition where a Magistrate has passed an order u/s 256 of the Code acquitting the accused, a remedy by way of revision u/s 397 of the Code would lie? The issue before the Supreme Court was whether the Criminal Court had jurisdiction to recall an order of dismissal of the complaint. It held that there was no such jurisdiction. That was the ratio of that judgement. The ratio of the judgement is not that where a private complaint is dismissed by the Magistrate u/s 256 of the Code and the accused are acquitted, the complainant has a remedy by way of filing a revision u/s 397 of the Code. In our view, therefore, the learned Single Judge misconstrued the judgement of Supreme Court delivered in the case of Major General A.S.Jauraya (supra) and on that basis holding that in such a case revision preferred by the complainant before the Sessions Judge was maintainable. 10. In our view, therefore, the learned Single Judge misconstrued the judgement of Supreme Court delivered in the case of Major General A.S.Jauraya (supra) and on that basis holding that in such a case revision preferred by the complainant before the Sessions Judge was maintainable. 10. We have considered the judgements delivered by the learned Single Judges of this Court to which we have referred earlier, all of which take a view that such a revision is not maintainable and that the only remedy available to the complainant when a person acquitted on dismissal of a complaint, the remedy is by way of filing an appeal u/s 378 of the Code. These judgements, in our opinion, considering the specific provisions, lay down the correct law. Similar view has been taken by other High Courts in the country as is clear from the judgements which we have also referred to. 11. In the case of Vinayak Kumar A. Maliwal vs. Ramesh K. Saboo reported in 2008(1)-Bom.C.R.-428 a learned Single Judge of this Court referred to the divergent opinions expressed by co-ordinate benches in this regard and has concluded that the only remedy in such a case available to the complainant is by way of preferring an appeal. 12. For the aforesaid reasons and considering sections 256 and 378 of the said Code of 1973, we are clearly of the opinion that when an order of acquittal is passed under section 256, the only remedy that the complainant would have, is to file an appeal. No revision is maintainable. In our view, the view taken by the learned Single Judge in Mahendra Indermal Borana vs. Anil Shankar Joshi and another, reported in (2004 (1)-Bombay Cases Reporter (Cri)-805) is not the correct view and hence overruled. 13. Office to place the matter before the appropriate Bench for passing appropriate orders in the writ petition.