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2009 DIGILAW 1079 (PNJ)

Suresh v. Rekha

2009-07-06

RAJAN GUPTA

body2009
JudgmentJudgment Rajan Gupta, J. 1. The petitioners have impugned the judgment dated 15th May, 2009. passed by Additional Sessions Judge, Karnal whereby he upset the order, passed by Judicial Magistrate 1st Class, Karnal, dismissing the complaint. 2. Learned counsel for the petitioners has argued that once the complaint has been dismissed due to non-appearance of the complainant, the same could not have been restored. According to the counsel, there is no provision in the Act for restoration of the same. 3. I have heard learned counsel for the petitioners and given careful thought to the facts of the case. 4. The complaint was lodged by one Rekha against the petitioners under Sections 406, 498- A, 504, 506 read with Section 34 IPC. After recording the preliminary evidence, the petitioners were summoned to face trial for commission of offences under Sections 498-A/506 read with Section 34 IPC. They put in appearance and were released on bail. Thereafter, an application under Section 245 (2) Cr.P.C. was moved by the accused for discharge. On 17th April, 2006, the complaint was, however, dismissed as the complainant was not present. The complainant thereafter, on 27th May, 2006 moved an application for restoration of the complaint on the ground that she could not put in appearance on 17th April, 2006 as she had sustained injuries and was confined to bed. The application was, however, dismissed by the Magistrate on the ground that he could not restore the order dismissing the complaint. The said order was challenged by the complainant, respondent herein, on the ground that the case under Sections 498-A/506 IPC was triable as a warrant case and in the absence of the complainant, the same could not have dismissed for non- prosecution. Reliance was placed on judgments reported as Shangara Singh v. Joginder Singh, 2000(1) RCR(Criminal) 123 and Shiv Kumar v. Mohd. Saghir, 1997(1) RCR(CrL) 709 (Delhi). The revisional Court allowed the revision petition and restored the complaint to its original number. He directed the parties to remain present before the Magistrate on 27th May, 2009 for further proceedings. 5. During the course of arguments, learned counsel has not been able to point out any legal infirmity with the impugned order, passed by Additional Sessions Judge, Karnal. The revisional Court allowed the revision petition and restored the complaint to its original number. He directed the parties to remain present before the Magistrate on 27th May, 2009 for further proceedings. 5. During the course of arguments, learned counsel has not been able to point out any legal infirmity with the impugned order, passed by Additional Sessions Judge, Karnal. The only ground agitated by him is that the order passed by the Magistrate could not be recalled by him as Criminal Procedure Code does not contemplate a review of an order passed. He has relied upon the judgment in Adalat Prasad v. Rooplal Jindal, 2004(4) RCR(Criminal) 1 in support of his contention. 6. However, I am of the considered view that ratio of the said judgment is not applicable to the facts of the present case. Admittedly, the Magistrate declined to review his own order and a revision petition was preferred by the complainant against the same. The revisional Court allowed the prayer of complainant/petitioner. It restored the complaint and remitted the case back to the trial Court. The revisional Court observed that in view of Section 249 Cr.P.C, the complaint could not have been dismissed in default. Learned counsel has not addressed any argument to show that the impugned order is bad in law. He has only reiterated that order dismissing the complaint in default could not be recalled by the Court. However, it is clear that the order dismissing the complaint has been set-aside in revisional jurisdiction by the Additional Sessions Judge, Karnal and has not been recalled by the same Court which dismissed it. 7. In my considered view, no interference is called for in the impugned order in the revisional jurisdiction of this Court. The petition is dismissed being devoid of merits.