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Himachal Pradesh High Court · body

2013 DIGILAW 1005 (HP)

Sant Lal v. Raju

2013-12-06

MANSOOR AHMAD MIR

body2013
JUDGMENT Mansoor Ahmad Mir, Acting Chief Justice (Oral) The instant revision calls in question the Order dated 22nd June, 2007, for short ‘impugned order’ passed by the Judicial Magistrate 1st Class, Nalagarh, District Solan, Himachal Pradesh, for short ‘trial court’, by virtue of which complaint, titled Sant Lal versus Raju & others, filed in terms of Section 204 (4) of the Code of Criminal Procedure, for short ‘Cr.P.C.’, was dismissed. 2.Heard counsel for the parties. 3. The impugned order appears to be bad, on the face of it, and cannot survive the test of law for the following reasons:- 4. That a complaint, above titled, was filed before the trial Court under and in terms of Sections 457 / 380 of the Indian Penal Code, for short ‘IPC’, seeking permission of prosecution against the accused. 5.The trial court, in the first instance, derived satisfaction vis-à-vis the veracity of the complaint, therefore, took cognizance and issued process for the commission of offences punishable under Sections 365, 343, 504, 323, 383 and 149 of the IPC and not for the commission of offences punishable under Sections 363, 387 and 120-B of the IPC. 6. The trial Court has dismissed the complaint by virtue of the ‘impugned order’, of course mechanically, for want of service, as, the trial Court on its own showing, demonstrates the seriousness of the complainant to prosecute the complaint by mentioning in the ‘impugned order’ the requisite process fee, for the service of the accused, having been deposited by him; besides seeking exemption from appearance on one of the hearing dates. All this suggests that complainant has been very seriously and vigorously pursuing the complaint and trial court, without taking note of such seriousness, has, as per its own whim and caprice, dismissed the complaint only for the reason that summons issued against the accused have not returned served or unserved. This is something unheard of. 7. The non-application, on the part of trial court, gets more apparent for the reason that the trial court has decided and dismissed the complaint in terms of Section 204 (4) ‘Cr.P.C.’ It will be apt to reproduce Section 204 (4) ‘Cr.P.C.’ hereinbelow: “204. Issue of process. This is something unheard of. 7. The non-application, on the part of trial court, gets more apparent for the reason that the trial court has decided and dismissed the complaint in terms of Section 204 (4) ‘Cr.P.C.’ It will be apt to reproduce Section 204 (4) ‘Cr.P.C.’ hereinbelow: “204. Issue of process. – (1) ..(2) ..(3) ..(4) When by any law for the time being in force any process-fees or other fees are payable, no process shal be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the compliant.” 8.It mandates that a Magistrate can dismiss the complaint only if the process fee is not paid. But, in the instant case, as stated above, the impugned order itself shows that the complainant had deposited the process fee, therefore, there was no occasion for the trial court to make use of Section 204 (4) ‘Cr.P.C’. 9.To keep the record straight, it is stated that a Magistrate can press into service the provisions of Section 249 ‘Cr.P.C.’ to dismiss a complaint for absence of the complainant, that too, only when the offences alleged in the complaint are compoundable. It is profitable to reproduce Section 249 ‘Cr.P.C.’ herein: “249. Absence of complainant. – When the proceedings have been instituted upon complaint, and on any day fixed for the hearing of the case, the complainant is absent, and the offence may be lawfuly compounded or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbe fore contained, at any time before the charge has been framed, discharge the accused.”Therefore, the trial Court did not have even the option of making use of Section 249 ‘Cr.P.C.’ available to dismiss the complaint, as, the offences alleged in the complaint were non-compoundable. 10.The impugned order, in the circumstances, is quashed, being trash. The case is remanded to the trial court with the direction to issue bailable warrants against the accused persons for securing their presence. 11. Let the matter come up before the trial court on 7th March, 2014. 12.Revision petition is disposed of, on the above terms. 13.Send down the record.