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2010 DIGILAW 583 (HP)

SATYA PARKASH KATIYAL v. USHA CHAUHAN

2010-03-23

SURINDER SINGH

body2010
JUDGMENT Surinder Singh, J.(Oral)-This is a petition under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India, filed against the order of learned Additional Sessions Judge (F.T.C.) whereby the order dated 22.7.2008, passed by the learned trial Court was set aside. 2. Heard and gone through the record. 3. Facts in brief can be stated thus. Respondent No. 1 had filed a complaint under Sections 494 and 109 Indian Penal Code against the petitioner herein in the year 2004 before the learned Judicial Magistrate, Jubbal wherein petitioner was summoned as an accused, and this summoning order was challenged by preferring Cr. M.M.O. No. 104 of 2007, before this Court, which was dismissed on 28.5.2008 and the parties were directed to appear before the learned trial Court on 14.7.2008. 4. On 14.7.2008 neither the complainant nor accused persons put in appearance in the trial Court. The Presiding Officer of that court was stated to be on tour. Accordingly, Clerk of the court fixed the case for 22.7.2008 for proper order. On 22.7.2008 also the parties were not present. However, an application was moved on behalf of the accused/petitioner seeking his exemption, which was allowed. But the complaint was dismissed on the ground that the complainant failed to put in appearance on the previous date, i.e., 14.7.2008 as directed by this Court. Against this order, complainant filed the revision petition which was allowed on 11.12.2008 by the Additional Sessions Judge. It is this order, against which the present petition has been filed. 5. Record reveals that the parties were directed by the court to be present before the learned trial court on 14.7.2004. Admittedly, none of the parties put in appearance as the Presiding Officer was on tour. The case was fixed by the Clerk of the Court on 22.7.2008. 6. In my opinion, the Clerk of the Court has no power to fix the date or bind the parties for their presence for such date. Thus the failure to appear on a date so fixed or on a previous date when the Presiding Officer was not present, does not justify dismissal in default more specifically when the petitioner was also not present. Therefore, no error was committed by the Additional Sessions Judge by setting aside the order passed by the learned trial Court. As such, the petition is dismissed. 7. Therefore, no error was committed by the Additional Sessions Judge by setting aside the order passed by the learned trial Court. As such, the petition is dismissed. 7. Record of the learned trial Court be sent back forthwith. Cr. M.P. No. 28 of 2010. Infructuous.