JUDGMENT : 1. By this application under Article 227 of the Constitution of India, the applicant–original accused calls in question the legality and validity of the order dated 13th October 2017 passed by the 10th Additional Sessions Judge, Vadodara in the Criminal Revision Application No.220 of 2017, by which the Revisional Court allowed the revision application filed by the respondent No.1 herein–original complainant, thereby quashing and setting aside the order dated 6th July 2017 passed by the 12th Additional J.M.F.C., Vadodara below Exhibit: 1 in the Criminal Case No.45674 of 2014. 2. The facts giving rise to this application may be summarised as under: 2.1 The respondent No.1 herein – original complainant herein filed a private complaint in the Court of the 12th Additional J.M.F.C., Vadodara against the applicant herein for the offence punishable under Section 138 of the Negotiable Instruments Act. The filing of the complaint by the respondent No.1 for the dishonour of two cheques issued by the applicant herein culminated in the Criminal Case No.45674 of 2014. 2.2 It appears from the materials on record that the Trial Court, vide order dated 6th July 2017 passed below Exhibits: 15 and 1 respectively, dismissed the complaint in exercise of its powers under Section 256 of the Code of Criminal Procedure, 1973. To put it in other words, as the complainant failed to remain present before the Trial Court, the Trial Court thought fit to exercise its powers under Section 256 of the Cr.P.C. and dismissed the complaint. 2.3 The complainant, being dissatisfied with such order passed by the Magistrate, preferred an application Exhibit: 21 with a prayer to recall the order dismissing the complaint and for restoration of the criminal proceedings. The Trial Court, vide order dated 8th August 2017, rejected the application Exhibit: 21 on the ground that once the complaint is dismissed and the accused is acquitted, the Trial Court would not have any jurisdiction to recall such order and restore the proceedings. 2.4 Being dissatisfied with the order passed by the Trial Court, the respondent No.1 herein – original complainant filed the Criminal Revision Application No.220 of 2017 in the Court of the Sessions Judge, Vadodara. The 10th Additional Sessions Judge, Vadodara, in exercise of its revisional powers, allowed the revision application and quashed the order passed by the Magistrate dated 6th July 2017 dismissing the complaint for default. 3. The 10th Additional Sessions Judge, Vadodara, in exercise of its revisional powers, allowed the revision application and quashed the order passed by the Magistrate dated 6th July 2017 dismissing the complaint for default. 3. Being dissatisfied with the order passed by the Revisional Court, the applicant – original accused is here before this Court with this application invoking the supervisory jurisdiction under Article 227 of the Constitution of India. 4. Mr. Pankaj Chhajed, the learned counsel appearing for the applicant accused vehemently submitted that the order passed by the Revisional Court is without jurisdiction. The learned counsel as such did not address on the merits of the revision, but confined his submissions only on the legal aspect of the matter and contended that in view of Section 143 of the N.I. Act, an offence under Section 138 of the N.I. Act is to be tried summarily and accordingly in consonance with Section 262, Cr.P.C. the procedure of summons case is to be followed by the Magistrates while trying offence under the N.I. Act, and therefore, in view of Section 256, Cr.P.C. the dismissal of complaint in the absence of complainant amounts to acquittal of accused, and therefore, no revision against such an order was maintainable in so far as against an order of acquittal, in a case instituted upon a complaint, an appeal against acquittal is maintainable under Section 378(4) Cr.P.C. in this Court after obtaining leave to appeal from this Court. The submission in substance is that once the Magistrate exercises its discretion to dismiss the complaint for default under Section 256 of the Cr.P.C., the effect of the same would be the acquittal of the accused and once the accused is acquitted, the only alternative available for the complainant is to file an appeal before this Court under Section 378 of the Cr.P.C. after obtaining leave. The learned counsel submitted that the Sessions Court could not have entertained the revision application and should have directed the complainant to file an appropriate appeal before the appropriate forum in accordance with law. According to the learned counsel, on this ground alone, the impugned order passed by the Sessions Court in exercise of its revisional jurisdiction deserves to be quashed and set aside. 5. Mr. According to the learned counsel, on this ground alone, the impugned order passed by the Sessions Court in exercise of its revisional jurisdiction deserves to be quashed and set aside. 5. Mr. Chhajed, the learned counsel submitted that even otherwise, the learned Magistrate was justified in dismissing the complaint, as the complainant was adopting dilatory tactics and was protracting the proceedings. 6. In such circumstances referred to above, Mr. Chhajed, the learned counsel prays that there being merit in this application, the same be allowed and the impugned order passed by the Revisional Court be quashed and set aside. 7. On the other hand, this application has been vehemently opposed by Mr. P.P. Majmudar, the learned counsel appearing for the respondent No.1 – original complainant. Mr. Majmudar, the learned counsel appearing for the complainant, by placing reliance on a decision delivered by the High Court of Gauhati in the case of the Chief Executive Officer, Cantonment Board, Shillong vs. Tenzing Gopu Lama reported in [2008 Cri. L. J. 3681], submitted that the revision application before the Sessions Court was maintainable for the purpose of questioning the legality and validity of the order passed by the Magistrate dismissing the complaint for default under Section 256 of the Cr.P.C. 8. Mr. Majmudar, the learned counsel submitted that assuming for the moment that the revision application was not maintainable and the appropriate remedy was to file an appeal before this Court under Section 378 of the Cr.P.C., this Court, in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India, may not disturb the order, as otherwise the final conclusion arrived at by the Revisional Court is just and proper. Mr. Majmudar, the learned counsel would submit that the powers of this Court under Article 227 of the Constitution of India are discretionary, and even if an order is illegal or without jurisdiction, this Court may decline or refuse to interfere, if otherwise the ultimate decision is found to be correct and substantial justice is done with the parties. Mr. Majmudar submitted that only for once, the complainant was not able to remain present before the Trial Court, and in such circumstances, the Trial Court ought not to have exercised its powers under Section 256 of the Cr.P.C. and dismissed the complaint. 9. In such circumstances referred to above, Mr. Mr. Majmudar submitted that only for once, the complainant was not able to remain present before the Trial Court, and in such circumstances, the Trial Court ought not to have exercised its powers under Section 256 of the Cr.P.C. and dismissed the complaint. 9. In such circumstances referred to above, Mr. Majmudar, the learned counsel submitted that there being no merit in this application, the same may be rejected. 10. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the Revisional Court committed any error in passing the impugned order. 11. Before adverting to the rival submissions canvassed on either side, it is necessary for me to look into the few provisions of the Cr.P.C. Section 256 of the Cr.P.C. reads as under; “256. Nonappearance 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 attendance 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.” 12. Thus, the plain reading of Section 256 of the Cr.P.C. referred to above would indicate that the Magistrate is empowered to pass an order of acquittal on nonappearance or death of the complainant. The ingredients of Section 256(1) are: (i) that summons must have been issued on a complaint, (ii) the Magistrate should be of the opinion that for some reasons, it is not proper to adjourn the hearing of the case to some other date, and (iii) the date on which the order under Section 256(1) can be passed is the day appointed for appearance of the accused or any day subsequent thereto to which the hearing of the case has been adjourned. What is most important in Section 256(1) of the Code is the mandate to the Magistrate to acquit the accused unless for some reasons he thinks it proper to adjourn the hearing of the case. The word “acquit” in Section 256(1) is of immense significance. 13. In the present case also, the applicant herein could be said to have been acquitted, as the Magistrate thought fit to dismiss the complaint on the ground of nonappearance of the complaint on the given date. In such circumstances, what was the legal remedy available for the complainant? Whether the complainant should have come before this Court seeking leave to appeal under Section 378(4) of the Cr.P.C.? Whether the invocation of the revisional jurisdiction of the Sessions Court under Sections 401 read with 397 of the Cr.P.C. was justified for the purpose of challenging the order of acquittal in substance? 14. At this stage, let me look into the decision of the Gauhati High Court in the case of the Chief Executive Officer [2008 Cri.LJ 3681] relied upon strongly by Mr. Majmudar, the learned counsel appearing for the complainant. The question before the learned Single Judge of the Gauhati High Court was whether the High Court can entertain a revision application either under Article 227 of the Constitution of India or under the different provisions of law under the Code of Criminal Procedure against an order passed by a Judicial Magistrate under Section 256 of the Cr.P.C. or the High Court should direct the complainant to file an appeal under Section 378 of the Cr.P.C. The learned Single Judge, while holding that a revision application is maintainable for the purpose of questioning the order passed by the Magistrate under Section 256 of the Cr.P.C., observed as under: “11. As could be gathered from the provisions of law (Sec. 378 Cr. P. C.) the right of a complainant or prosecution to file appeal against the orders of acquittal is restrictive in nature and circumscribed by certain preconditions. At the first instance, under clauses (a) and (b) to sub-Section (1) of Sec. 378 of Cr. P.C. an appeal can be filed in the Court of. Session from the orders of acquittal passed by the Magistrates only, if the offences are cognizable and non-bailable. At the first instance, under clauses (a) and (b) to sub-Section (1) of Sec. 378 of Cr. P.C. an appeal can be filed in the Court of. Session from the orders of acquittal passed by the Magistrates only, if the offences are cognizable and non-bailable. (Emphasis supplied) In respect Of the orders of acquittal passed by a Court other than the Magistrates, appeal would lie before the Court under clause (b). 12. Apparently, clauses (a) and (b) of Sec. 378(1) relates to the cases which are filed in the Courts by the State. However, in my opinion the preconditions, laid down in clause (a) that appeals can be filed against the orders of acquittal only if the offences are cognizable and non-bailable would also be applicable to the appeals stemming out of complaint cases before the High Court inasmuch as clause (b) has not made any distinction of the complainants before the Court of Magistrates. In my considered view, the words "not being an order under clause (a) employed in clause (b) of Section 378 (1)" is in relation to the hierarchy of the Court for filing appeal before the High Court and it does not dilute the preconditions that the offences must be cognizable and non-bailable. 13. The above apart, sub-sees. (3) and 4 to Sec. 378 of Cr. P.C. deal with the procedure for filing an appeal before the High Court against an order of acquittal. It requires granting of leave by the High Court before entertaining an appeal. However, other conditions laid down in clauses (a) and (b) of Sec. 378(1) have not been realized. Sub-Section (4) provides for appeal against the orders of acquittal in a case instituted upon a complaint. However, as noted earlier, the offences levelled against the accused persons are under Section 184 of the Cantonments Act, 1924, which are non-cognizable and bailable. Hence, no appeal can be filed against the orders of acquittal passed in such complaints as in my view to entertain an appeal u/S. 378, the offences must be cognizable and non-bailable. 14. It is also apparent from the relevant provisions of law that an appeal against the orders of acquittal in the High Court is further insulated by way of non-obstante clause in the nature of obtaining leave of the High Court. 14. It is also apparent from the relevant provisions of law that an appeal against the orders of acquittal in the High Court is further insulated by way of non-obstante clause in the nature of obtaining leave of the High Court. In this way, the right to file an appeal in the High Court is, in strict sense, neither a statutory nor an explicit one. The rights conferred upon the prosecution and the complaint u/S. 378, Cr. P.C. cannot be equated with the rights conferred upon a convict u/S. 374, which does not require obtaining of any leave from the High Court or from the learned Sessions Judge. In view of the limitations prescribed under Section 378 of Cr. P.C. I hold that since the right of filing an appeal, either by the State or by a complainant, in the High Court against an order of acquittal is not an absolute one there shall be no bar for the High Court to examine the legality, propriety and correctness of a non-speaking order of dismissal of complaint in its revisional jurisdiction. 15. Both the Delhi High Court and the Bombay High Court have held that an order passed u/S. 256 of the Code of Criminal Procedure is appealable since the dismissal of a complaint invariably invites an order of acquittal of the accused. No doubt, a casual approach would indicate that an order of acquittal passed u/S. 256 is appealable under Section 378, Cr. P.C. However, the Hon'ble Delhi High Court and Bombay High Court did not address or examine the relevance of preconditions and circumstances which permit filing of an appeal against an order of acquittal. Hence, I respectfully disagree with the blanket view taken by Delhi High Court and Bombay High Court that an order of acquittal of the accused passed in exercise of Section 256, Cr. P.C. is appealable. In my considered opinion, the appeal against the order of acquittal is limited to the offences which are cognizable and non-bailable in nature and not in other cases. 16. The above apart, the nature of the orders that can be passed under Section 256 due to absence of complaint or its witnesses are abundantly clear from the law itself. Such orders, in natural course cannot be speaking one. In this eventuality also, nothing remains to be examined in the appeal. 16. The above apart, the nature of the orders that can be passed under Section 256 due to absence of complaint or its witnesses are abundantly clear from the law itself. Such orders, in natural course cannot be speaking one. In this eventuality also, nothing remains to be examined in the appeal. However, the correctness and propriety of such an order can be examined under revisional jurisdiction by way of browsing the record and the order-sheets, which would indicate the manner in which the case was conducted by the prosecution and defence. 17. Section 397(1), Cr. P.C. confers concurrent power to Sessions Courts and High Courts to examine the record of any proceeding before any subordinate criminal Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order and also to the regularity of any proceeding. Besides this, Section 401 has also given the privilege to the High Courts to correct miscarriage of justice taking cognizance of the issue suo motu. The powers conferred u/S. 401 extends to all the powers of appellate jurisdiction, subject to express limitations and exceptions specified thereunder. 18. In addition to revisional jurisdiction under Chapter- XXX, Cr. P.C. (S. 395 to S. 405) High Courts are also bestowed with inherent powers u/S. 482, Cr. P.C. to secure the ends of justice. In this way, Sec. 482 is an essential and inseparable family member of revisional jurisdiction of High Courts. To say it differently, while construing the length and width of revisional powers of High Courts one cannot ignore the inherent powers enshrined u/S. 482. It is followed by Sec. 483 which authorizes the High Courts to have superintendence over the Courts of Judicial Magistrate, subordinate to it, to ensure expeditious and proper disposal of cases. 19. The nature of powers vested upon High Courts under its revisional jurisdiction and its duties laid down u/S. 483, Cr. P.C. came to be examined before the Hon'ble Supreme Court of India in the case of Krishnan v. Krishnaveni, reported in (1997) 4 SCC 241 : (1997 Cri LJ 1519). 19. The nature of powers vested upon High Courts under its revisional jurisdiction and its duties laid down u/S. 483, Cr. P.C. came to be examined before the Hon'ble Supreme Court of India in the case of Krishnan v. Krishnaveni, reported in (1997) 4 SCC 241 : (1997 Cri LJ 1519). The relevant observations of the Apex Court are as follows : "The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to meet out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal Court in its judicial process or illegality of sentence or order." 20. With regard to the scope and ambit of inherent powers of the High Court u/S. 482, Cr. P.C. the Apex Court has expressed the following view in the case of Hamida v. Rashid, reported in (2008) 1 SCC 474 : (2007 Cri LJ 3422) : "We are in agreement with the contention advanced on behalf of the complainant appellant. Section 482, Cr. P.C. saves the inherent powers of the High Court and its language is quite explicit when it says that nothing in the Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. A procedural code, however exhaustive, cannot expressly provide for all time to come against all the cases or points that may possibly arise, and in order that justice may not suffer, it is necessary that every Court must in proper cases exercise its inherent power for the ends of justice or for the purpose of carrying out the other provisions of the code. It is well established principle that every Court has inherent power to act ex debito justitiae to do that real and substantial justice for the administration of which alone it exists or to prevent abuse of the process of the Court. As held by the Privy Council in Emperor v. Khwaja Nazir Ahmad (1945 (46) Cri LJ 413) with regard to Section. 561A of the Code of Criminal Procedure, 1898 (Section 482, Cr. P.C. is a verbatim copy of the said provision) gives no new powers. It only provides that those powers which the Court already inherently possesses shall be preserved and is inserted, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Code and that no inherent power had survived the passing of the Act." 21. As a whole, in my considered opinion, the very purpose of scrutinizing the record of lower Court proceeding is not only to examine the legality, correctness and propriety of any finding or order alone but also to see that the very process of arriving such a conclusion was in consonance with the established legal jurisprudence. While exercising such supervisory powers the revisional Court may interfere with final orders on account of procedural lapses, notwithstanding correctness of the order on merit. In other words, the main thrust of the revisional Courts is to focus upon the decision making process and not the end result. It is because if the foundation of the proceeding itself is vitiated and de hors to the laid down procedure of trial and enquiry the penultimate decision cannot be said to be a judicial decision. If any such decision, which is contrary to the established and accepted procedure, is allowed to sustain it would fall within the doctrine of 'mis carriage of justice.' 22. Upon conspectus of the position of law, I hold that it is more appropriate to examine the legality, correctness and propriety of orders passed under Section 256 of Cr. If any such decision, which is contrary to the established and accepted procedure, is allowed to sustain it would fall within the doctrine of 'mis carriage of justice.' 22. Upon conspectus of the position of law, I hold that it is more appropriate to examine the legality, correctness and propriety of orders passed under Section 256 of Cr. P.C. acquitting the accused on default clause in revisional jurisdiction conferred u/Ss. 397, 401 and 482 of Cr. P.C. in preference to appellate jurisdiction, subject to the condition that the accused must not have been acquitted in cognizable and non-bailable offences. In other words if the acquittal is recorded in cognizable and non-bailable offences only then the prosecution/complainant may be directed to file appeal u/S. 378, Cr. P.C.” 15. I take notice of the fact that the learned Single Judge of the Gauhati High Court, even while holding that the revision application was maintainable, declined to set aside the impugned order on merits. The learned Judge disposed of the matter holding that the complainant had an alternative remedy to pursue the alleged violation of the provisions of the Cantonment Act, 1924 by way of filing a fresh complaint. In taking such view, the learned Judge relied upon two decisions of the Supreme Court: (1) in the case of Pramatha Nath Talukdar vs. Saroj Ranjan Sarkar [ AIR 1962 SC 876 ] and (2) in the case of Major General A. S. Gauraya vs. S. N. Thakur [ 1986 (23) ACC 346 (SC) : AIR 1986 SC 1440 ]. 16. Having gone through the entire judgment of the Gauhati High Court referred to above, I find it extremely difficult to follow the dictum laid down therein. For the charity of understanding, Section 143 of the N.I. Act is quoted below : “143. Power of Court to try cases summarily. 16. Having gone through the entire judgment of the Gauhati High Court referred to above, I find it extremely difficult to follow the dictum laid down therein. For the charity of understanding, Section 143 of the N.I. Act is quoted below : “143. Power of Court to try cases summarily. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (1973 of 1974), all offences under this Chapter- shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of Sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials: Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees : Provided further that when at the commencement of, or in the course of a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code. (2) The trial of a case under this section shall, so far as practicable, consistently with the interests of justice, be continued from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing. (3) Every trial under this section be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months form the date of filing of the complaint.” 17. (3) Every trial under this section be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months form the date of filing of the complaint.” 17. A perusal of the section indicate that unless and until the Magistrate finds it undesirable he is to try the offence under the N.I. Act in a summary trial in accordance with the provisions of Sections 262 to 265 Cr.P.C. Procedure for summary trial is incorporated under Chapter-XXI Cr.P.C. engulfing Sections 260 to 265 Cr.P.C. For the purposes of Section 143 of the N.I. Act Section 260 and 261 Cr.P.C. has got no application. Section 262 Cr.P.C. provides that while trying the case summarily under Chapter- XXI the procedure of summons case has to be followed. Thus provisions of Section 256 applies in all trials for the offence under Section 138 of the N.I. Act. Section 256 Cr.P.C. provides thus : “256. Nonappearance 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 which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything herein before 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 attendance 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.” 18. Thus, from the perusal of Section 256 Cr.P.C., it is clear that if the summons has been issued to the accused on a complaint or on any subsequent date fixed for appearance of the accused or on any subsequent day, if the complainant does not appear, the Magistrate has to acquit the accused unless he thinks it proper to adjourn the hearing of the case to some other day. It has been held by this Court and many other High Courts that an order of dismissal of complainant under Section 256 Cr.P.C. amounts to an acquittal of the accused as Section 256(1) Cr.P.C. provides only of such an eventuality in case of nonappearance of complainant which may also be because of his death. Thus, it is clear that at the stage of Section 204 Cr.P.C., if the accused has been summoned by the trial Court and the complaint does not appear before the Trial Magistrate then, both in summons triable cases and in summarily trial cases, the Magistrate has to acquit the accused unless for some reasons he thinks it proper to adjourn the hearing of the case to some other day. 19. In my view, the decision of the Gauhati High Court is in direct conflict with the decision of the Supreme Court in the case of S. Rama Krishna vs. S. Rami Reddi [ (2008) 5 SCC 535 ]. I may quote the observations of the Supreme Court as contained in paras 7 to 12 as under: “7. Section 256 of the Code of Criminal Procedure empowers a Magistrate to pass an order of acquittal on nonappearance or death of the complainant. The complaint petition was filed in the year 2001. Rami Reddy died in 2003. A large number of dates were fixed for hearing of the case. Although, on some dates, the respondents were either present in court in person or were represented by their Advocate, but as noticed hereinbefore, continuously for about 15 dates fixed for hearing, they remained absent. The ingredients of Section 256(1) are: (i) that summons must have been issued on a complaint, (ii) the Magistrate should be of the opinion that for some reasons, it is not proper to adjourn the hearing of the case to some other date; and (iii) the date on which the order under Section 256(1) can be passed is the day appointed for appearance of the accused or any day subsequent thereto, to which the hearing of the case has been adjourned. It is not a case where the proviso appended to sub-Section (1) of Section 256 of the Code was applicable. 8. The matter remained pending for more than five years. It was obligatory on the part of the respondents to press their application for substitution. They did not file attendance of their witnesses. It is not a case where the proviso appended to sub-Section (1) of Section 256 of the Code was applicable. 8. The matter remained pending for more than five years. It was obligatory on the part of the respondents to press their application for substitution. They did not file attendance of their witnesses. The case was fixed for hearing. 9. The learned Magistrate in terms of sub-Section (1) of Section 256 exercises wide jurisdiction. Although an order of acquittal is of immense significance, there cannot be any doubt or dispute whatsoever that the discretion in this case had been properly exercised by the learned Magistrate. 10. The provisions of Section 256(1) mandate the Magistrate to acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case. If an exceptional course is to be adopted, it must be spelt out the discretion conferred upon the learned Magistrate, however, must be exercised with great care and caution. The conduct of the complainant for the said purpose is of immense significance. He cannot allow a case to remain pending for an indefinite period. Appellant had been attending the Court for a long time, except on some dates where when remained absent or was otherwise represented by his Advocate. He had to remain present in Court. He attended the Court on not less than 20 occasions after the death of the original complainant. If in the aforementioned situation, the learned Magistrate exercised his discretionary jurisdiction, the same, in our opinion, should not have been ordinarily interfered with. 11. The High Court was exercising its jurisdiction under sub-Section (4) of Section 378 of the Code of Criminal Procedure. The appeal preferred by the respondents was against a judgment of acquittal. The High Court should have, therefore, exercised its jurisdiction keeping in view the limited role it had to play in the matter. 12. The High Court itself had come to the finding that the respondents were not interested in getting the matter prosecuted. Despite the same, it allowed their appeal, opining that any lis between the parties should be decided on merits rather than on technicalities. On what basis such a statement of law was made is not known. No precedent was cited; no reason has been assigned. Despite the same, it allowed their appeal, opining that any lis between the parties should be decided on merits rather than on technicalities. On what basis such a statement of law was made is not known. No precedent was cited; no reason has been assigned. The High Court failed to take into consideration the fact that it was dealing with an order of acquittal and, thus, the principle of law which was required to be applied was that, if two views are possible, a judgment of acquittal should not ordinarily be interfered with. There exists a distinction between a civil case and a criminal case. Speedy trial is a fundamental right of an accused. The orders passed by the competent Court of law as also the provisions of Code of Criminal Procedure must be construed having regard to the Constitutional scheme and the legal principles in mind.” 20. As observed by the Supreme Court, the provisions of Section 256(1) mandate the Magistrate to acquit the accused unless for some reasons he thinks it proper to adjourn the hearing of the case. Once there is an acquittal of the accused, although not on merits, but on a technical ground like dismissal of the complaint for nonappearance of the complainant, yet the only remedy available for the complainant would be to seek leave to appeal under Section 378 of the Cr.P.C. To put it in other words, the remedy lies in filing an appeal and not a revision application. A distinction, therefore, has to be drawn in regard to the complaints dismissed prior to the summoning of an accused and those dismissed subsequent to the summoning of the accused. If a complaint is dismissed prior to the summoning of an accused the order may be challenged by way of filing a revision, but once Section 256 comes into play the dismissal of a complaint has the effect of acquittal of an accused and only an appeal can be filed under Section 378 of the Code to challenge his acquittal. It has further been held by the Apex Court in case of Major General A.S. Gauraya vs. S.N. Thakur, 1986 (23) ACC 346 : ( AIR 1986 SC 1440 ) (SC) as follows : “9. It has further been held by the Apex Court in case of Major General A.S. Gauraya vs. S.N. Thakur, 1986 (23) ACC 346 : ( AIR 1986 SC 1440 ) (SC) as follows : “9. Section 249 of the Criminal P.C. enables a Magistrate to discharge the accused when the complainant is absent and when the conditions laid down in the said section are satisfied. S. 256(1) of the Criminal P.C. enables a Magistrate to acquit the accused if the complainant does not appear. Thus, the order of dismissal of a complaint by a criminal Court due to the absence of a complainant is a proper order.” An appeal is a continuation of a trial. The word “appeal” means the right of carrying a particular case from a subordinate Court to a superior Court with a view to ascertain whether the judgment is legally sustainable. An appeal is a creature of statute and only exists where expressly provided. Hence, it is not a natural or an inherent right to a creature of statute. 21. Section 378 Cr.P.C. relating to power of an appeals in case of an acquittal. Section 378 Cr.P.C. provides as follows : “378. Appeal in case of acquittal. An appeal is a creature of statute and only exists where expressly provided. Hence, it is not a natural or an inherent right to a creature of statute. 21. Section 378 Cr.P.C. relating to power of an appeals in case of an acquittal. Section 378 Cr.P.C. provides as follows : “378. Appeal in case of acquittal. (1) Save as otherwise provided in sub-Section (2), and subject to the provisions of subsections (3) and (5),- (a) the District Magistrate may, in any case, direct the Public prosecutor to present an appeal to the Court of Sessions from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court (not being an order under Clause (a) or an order of acquittal passed by the Court of Sessions in revision.) (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, (the Central Government may, subject to the provisions of sub-Section (3), also direct the public prosecutor to present an appeal- (a) to the Court of Sessions, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court (not being an order under Clause (a) or an order of acquittal passed by the Court of Sessions in revision.) (3) No appeal (to the High Court) under sub-Section (1) or sub-Section (2) shall be entertained except with the leave of the High Court. (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of the acquittal, the complainant may present such an appeal to the High Court. (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of the acquittal, the complainant may present such an appeal to the High Court. (5) No application under sub-Section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal. (6) If, in any case, the application under sub-Section (4) for the grant of special leave to appeal form an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-Section (1) or under sub-Section (2).” 22. From the perusal of the aforesaid Section it is clear that if an order of acquittal has been passed a case instituted upon a complaint then on an application made before the High Court by the complainant the High Court can grant special leave to appeal from an order of acquittal. Thus in the present case against the dismissal of complaint which amounted to acquittal of accused, the complainant respondent No.1 had got the right to file special leave to appeal under Section 378(4) Cr.P.C. in this Court, which admittedly has not been done. Section 401(4) Cr.P.C. provides that under the Code of Criminal Procedure if an appeal lies and no appeal is brought no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. The said sub-Section is quoted below : “401. High Court's powers of revision. (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.” 23. Thus, Section 401(4) Cr.P.C. prohibits maintainability of any revision in case of acquittal recorded in a case instituted upon a complaint as the complainant has got a right to file special leave to appeal before the High Court. The said section interdicts revisional power of High Court as well as of Sessions Court. Thus, Section 401(4) Cr.P.C. prohibits maintainability of any revision in case of acquittal recorded in a case instituted upon a complaint as the complainant has got a right to file special leave to appeal before the High Court. The said section interdicts revisional power of High Court as well as of Sessions Court. This is the import of joint reading of Sections 378(4), 397, 399(1) and 401(4) Cr.P.C. in conjunction with each other. 24. Having taken the view that the complainant should have filed a criminal appeal and not a revision application, the crucial question is whether such an appeal could have been filed before the Sessions Court under Section 372 of the Cr.P.C. or before the High Court with the leave under Section 378(4) of the Cr.P.C. Section 372 of the Cr.P.C. reads as under: “372. No appeal to lie unless otherwise provided:- No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force. Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.” 25. Before the proviso came to be inserted to Section 372 of the Cr.P.C., the right to file an appeal against the judgments of Criminal Courts were available either to the accused in the cases of conviction or to the State in cases of acquittal or in cases of inadequate sentences. The victim of offences virtually had no right to file an appeal because of an acquittal of accused. The situation, however, changed in the year 2009 when the provisions of the Cr.P.C. relating to the right of appeal was amended. In the year 2009, a proviso to Section 372 of the Cr.P.C. was introduced, which conferred upon the victim. The victim of offences virtually had no right to file an appeal because of an acquittal of accused. The situation, however, changed in the year 2009 when the provisions of the Cr.P.C. relating to the right of appeal was amended. In the year 2009, a proviso to Section 372 of the Cr.P.C. was introduced, which conferred upon the victim. The right of appeal in the following terms: “Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.” 26. When such a right was conferred on the victim, it also became expedient to define the term “victim”, which was done by the same amendments. Section 2(wa) of the Cr.P.C. defined “victim” as: “Victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir.” 27. The learned A.P.P. appearing for the State brought to my notice a decision rendered by a learned Single Judge of the Andhra Pradesh High Court in the case of Peela Lakshi Ganapat vs. State of Andhra Pradesh [Criminal Appeal No.12941 of 2017 decided on 25th July 2017]. In the said case, the learned Single Judge took the view that the appeal would lie before the Sessions Court in accordance with the proviso to Section 372 of the Cr.P.C. I may quote the observations made in paras 6 and 7 of the judgment as under: “(6) Now the crucial question is whether such an appeal is maintainable before the Sessions Court or before the High Court with the leave under Section 378(4) Cr.P.C. It may be noted that in Veena S. Rajnalkars case (1 supra), learned Judge of this Court opined that such an appeal is maintainable before the High Court with its leave under Sec.378(4) Cr.P.C. Some judgments of different High Courts were referred to by learned Judge to come to the said conclusion. However, it must be noted that neither in the judgment of this High Court nor in the judgments referred therein, the effect of proviso to Sec.372 Cr.P.C. was discussed. However, it must be noted that neither in the judgment of this High Court nor in the judgments referred therein, the effect of proviso to Sec.372 Cr.P.C. was discussed. In all those cases the trial Courts passed judgments prior to the amendment introduced to Sec.372 Cr.P.C. In the instant case on hand, judgment was passed subsequent to amendment to Sec.372 Cr.P.C. The said Section reads thus: “Section 372 No appeal to lie unless otherwise provided No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force. Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.” It should be noted that the proviso to Sec.372 Cr.P.C. was inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009), by Sec.29 w.e.f. 31.12.2009. As per the said proviso, the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. (7) It is pertinent to note, in the instant case the subject cheque was issued on 09.05.2014 and the order passed by learned Magistrate was on 20.03.2017 i.e, long after introduction of proviso to Sec.372 Cr.P.C. Therefore, the said proviso applies to the instant case. Since the conviction in that case is appealable before the Sessions Court, the complainant, who is the victim, can prefer the appeal against the acquittal before the same Sessions Court and he need not necessarily approach the High Court for leave under Sec.378(4) Cr.P.C. In similar circumstances, in Laxmilal Meariaya vs. Rajendra Kumar, learned Judge of High Court of Rajasthan at Jodhpur has held that since the judgments in that case were passed by the Magistrates after the amendment of Sec.372 Cr.P.C., the complainants in those cases can prefer the appeal before the Court of Sessions under Sec.372 Cr.P.C. and they need not approach the High Court under Sec.378(4) Cr.P.C.” 28. The learned A.P.P. also invited my attention to one decision of the Madras High Court in the case of Ziavulla Hussain vs. K. Karunakaran [Crl. O.P. No.24235 of 2016 in Criminal Appeal No.20030 of 2016 decided on 23rd February 2017]. The points which arose for the consideration of the Court in that case was (i) whether in case of acquittal by the Judicial Magistrate First Class, the complainant can prefer appeal to Sessions Court under Section 372 of Code of Criminal Procedure: and (ii) whether in case of acquittal by the Judicial Magistrate First Class, the complainant can only prefer appeal before High Court under Section 378(4) of Code of Criminal Procedure and cannot prefer appeal under Section 372 of Code of Criminal Procedure? The Court proceeded to answer the question as under: “In order to examine the scope of Sections 372 and 378(4) of Code of Criminal Procedure and to specify the meaning of word victim, which is explained in Section 2 (wa), these Sections need to be quoted, which reads as under: “372.No appeal to lie unless otherwise provided. No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force: Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.” 2. Definitions. In this Code, unless the context otherwise requires. (a) to (w) ...... (wa) victim means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression victim includes his or her guardian or legal heir. 378. Appeal in case of acquittal. (1) to (3).... (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (5) to (6) .... (1) to (3).... (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (5) to (6) .... On a bare reading of Section 372 of Cr.P.C., it is crystal clear that this Section nowhere specifies that victim also includes complainant of complaint case. In Section 372 of Code of Criminal Procedure the word used is victim and in Section 378(4) of Code of Criminal Procedure the word used is complainant and this Section applies to complaint case. 35. Also, this Court worth recalls and recollects the decision of the Hon'ble Supreme Court (Three Judge Bench), Damodar S.Prabhu V. Sayed Babalal H. reported in AIR 2010 Supreme Court 1907 wherein at paragraph 14, it is laid down as follows: “14. It may be noted here that Section 143 of the Act makes an offence under Section 138 triable by a Judicial Magistrate First Class (JMFC). After trial, the progression of further legal proceedings would depend on whether there has been a conviction or an acquittal. In the case of conviction, an appeal would lie to the Court of Sessions under Section 374(3)(a) of the Cr.P.C; thereafter a Revision to the High Court under Section 397/401 of the Cr.P.C. and finally a petition before the Supreme Court, seeking special leave to appeal under 136 of the Constitution of India. Thus, in case of conviction there will be four levels of litigation. In the case of acquittal by the JMFC, the complainant could appeal to the High Court under Section 378(4) of the Cr.P.C., and thereafter for special leave to appeal to the Supreme Court under Article 136. In such an instance, therefore, there will be three levels of proceedings.” 36. It is to be borne in mind that in the decision of the Hon'ble Supreme Court in Bhimappa Bassappa Bhu Sannavar v. Laxman Shivarayappa Samagouda and others, AIR 1970 Supreme Court 1153, at special page 1154, whereby and where under, it is observed as follows: 'The word 'case' is not defined by the Code but its meaning is well understood in legal circles. In Criminal jurisdiction it means ordinarily a proceeding for the prosecution of a person alleged to have committed an offence. In other contexts the word may represent other kinds of proceedings. But in the context of Section 417 (3) it must mean a proceeding which at the results either in discharge, conviction, or acquittal of an accused person.' The word 'complaint' has a wide meaning since it includes even an oral allegation. It may, therefore, be assumed that no form is prescribed which the complaint must taken. It may only be said that there must be an allegation which prima facie discloses the commission of an offence with the necessary facts fro the Magistrate to take action. 37. It is to be pointed out that in the decision Bhisam Prasad Bareth V. Dinesh Mahant and others, 2012 CRI.L.J. 2157 at special page 2159, at paragraphs 10 and 12, it is observed as under: “10. In the matter of Hirlal Nansa Bhavsar v. The State of Gujarat, reported in 1976 Cri.L.J 84 the Full Bench of the Gujarat High Court while answering a reference made to it has held thus: “The right of appeal is a substantive right which crystallizes at the date of institution of action and this right includes right to go in appeal to the superior Court. The forum to file the appeal is also thus determined as soon as the action is instituted. Till the case is instituted no litigant has any right to the forum in which the case can be instituted. In a criminal case this right to appeal and the right to file the appeal in the forum prescribed by law would precipitate at the date when the Court takes cognizance of an offence against the accused. It is perfectly competent for the legislature to affect this vested right retrospectively. The legislature may do so by making express provision to that effect or by the disclosure of such an intention by necessary intendment. It is also competent to the legislature to save pending proceedings from operation of the new Act.” 12. It is perfectly competent for the legislature to affect this vested right retrospectively. The legislature may do so by making express provision to that effect or by the disclosure of such an intention by necessary intendment. It is also competent to the legislature to save pending proceedings from operation of the new Act.” 12. In the present case also, the impugned judgment has been passed on 18-3-2009, whereas the proviso to Section 372 of the Cr.P.C. was inserted on 31.12.2009, that is to say, long after date of incident i.e. 5-3-2008 and therefore, the proviso to Section 372 of the Cr.P.C. may not thus be applicable in the present case. This is so also, because the right of appeal is a substantive right and not a procedural right and such right vests from the day of the commencement of the proceedings and an appeal is nothing but a continuation of the proceedings. The forum to file an appeal is also determined as soon as the action is instituted.” 38. In the decision of the Hon'ble Supreme Court in Satyapal Singh v. State of M.P. and others, (2015) 4 MLJ (Crl) 219 (SC) : 2015 AIR SCW 6251, at special page 225, wherein at paragraphs 13 to 15, it is held as under: “13. Thus, to conclude on the legal issue: whether the appellant herein, being the father of the deceased, has statutory right to prefer an appeal to the High Court against the order of acquittal under proviso to Section 372 of Cr.P.C. without obtaining the leave of the High Court as required under sub-Section (3) to Section 378 of Cr.P.C., this Court is of the view that the right of questioning the correctness of the judgment and order of acquittal by preferring an appeal to the High Court is conferred upon the victim including the legal heir and others, as defined under Section 2(wa) of Cr.P.C., under proviso to Section 372, but only after obtaining the leave of the High Court as required under sub-Section (3) to Section 378 of Cr.P.C. The High Court of M.P. has failed to deal with this important legal aspect of the matter while passing the impugned judgment and order. “29 Thus, the view taken by the Madras High Court in the above referred decision is that the father of the deceased had the statutory right to prefer an appeal to the High Court against the order of acquittal under the proviso to Section 372 of the Cr.P.C., but only after obtaining the leave of the High Court, as required under Sub-Section (3) to Section 378 of the Cr.P.C. 30 A Division Bench of the Punjab and Haryana High Court in the case of M/s. Tata Steel Ltd. vs. M/s. Atma Tube Products Ltd [(2013) 3 Crimes 613 (P&H)] considered the issue at length, and ultimately, held as under: “(i) the 'complainant' in a complaint-case who is a 'victim' also, shall continue to avail the remedy of appeal against acquittal under Section 378(4) only except where he/she succeeds in establishing the guilt of an accused but is aggrieved at the conviction for a lesser offence or imposition of an inadequate compensation, for which he/she shall be entitled to avail the remedy of appeal under proviso to Section 372; (ii) the 'victim', who is not the complainant in a private complaint-case, is not entitled to prefer appeal against acquittal under proviso to Section 372 and his/her right to appeal, if any, continues to be governed by the un-amended provisions read with Section 378 (4) of the Code; (iii) the Legislature has given no separate entity to a 'victim' in the complaint-case filed by a public servant under a special Statute and the appeal against acquittal in such a case can also be availed by the 'complainant' of that case under Section 378(4) of the Code only. (iv) those 'victims' of complaint-cases whose right to appeal have been recognized under proviso to Section 372, are not required to seek 'leave' or 'special leave' to appeal from the High Court in the manner contemplated under Section 378(3) & (4), for the Legislature while enacting proviso to Section 372 has prescribed no such fetter nor has it applied the same language used for appeals against acquittals while enacting sub-Section (3) & (4) of Section 378 of the Code.” 31 The entire controversy, ultimately, was set at rest by the Supreme Court in the case of Satya Pal Singh vs. State of M.P. [2015 AIR SCW 6251 : 2015 (4) MLJ (Cri.) 219 (SC)], wherein the Supreme Court held that the proviso to Section 372 must be read along with its main enactment i.e. Section 372 itself and together with Sub-Section (3) to Section 378. Otherwise, the substantive provisions of Section 372 would be rendered nugatory, as it clearly states that no appeal shall lie from any judgment or order of a Criminal Court, except as provided by the Cr.P.C. I may quote the relevant observations of the Supreme Court as under: “9. We have carefully examined the above mentioned provisions of Cr.P.C. and the Full Bench decision of Delhi High Court referred to supra upon which strong reliance is placed by the learned counsel for the appellant. There is no doubt that the appellant, being the father of the deceased, has locus standi to prefer an appeal before the High Court under proviso to Section 372 of Cr.P.C. as he falls within the definition of victim as defined under Section 2(wa) of Cr.P.C. to question the correctness of the judgment and order of acquittal passed by the trial court in favour of respondent Nos. 2 to 6 in Sessions Case No. 293/2010 . 10. The proviso to Section 372 of Cr.P.C. was amended by Act No.5 of 2009. The said proviso confers a statutory right upon the victim, as defined under Section 2(wa) of Cr.P.C. to prefer an appeal against an order passed by the trial court either acquitting the accused or convicting him/her for a lesser offence or imposing inadequate compensation. 10. The proviso to Section 372 of Cr.P.C. was amended by Act No.5 of 2009. The said proviso confers a statutory right upon the victim, as defined under Section 2(wa) of Cr.P.C. to prefer an appeal against an order passed by the trial court either acquitting the accused or convicting him/her for a lesser offence or imposing inadequate compensation. In this regard, the Full Bench of Delhi High Court in the case referred to supra has elaborately dealt with the legislative history of insertion of the proviso to Section 372 of Cr.P.C. by Act No. 5 of 2009 with effect from 31.12.2009. The relevant provision of Section 372 of Cr.P.C. reads thus: "372. No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force: Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court." The said amendment to the provision of Section 372 of Cr.P.C. was prompted by 154th Law Commission Report. The said Law Commission Report has undertaken a comprehensive review of Cr.P.C. and its recommendations were found to be very appropriate in amending the Cr.P.C. particularly in relation to provisions concerning arrest, custody and remand, procedure to be followed in summons and warrant cases, compounding of offences and special protection in respect of women and inquiry and trial of persons of unsound mind. Further, the Law Commission in its report has noted the relevant aspect of the matter namely that the victims are the worst sufferers in a crime and they do not have much role in the Court proceedings. They need to be given certain rights and compensation so that there is no distortion of the criminal justice system. The said report of the Law Commission has also taken note of the views of the criminologist, penologist and reformers of criminal justice system at length and has focused on victimology, control of victimization and protection of the victims of crimes and the issues of compensation to be awarded in favour of them. The said report of the Law Commission has also taken note of the views of the criminologist, penologist and reformers of criminal justice system at length and has focused on victimology, control of victimization and protection of the victims of crimes and the issues of compensation to be awarded in favour of them. Therefore, the Parliament on the basis of the aforesaid Report of the Law Commission, which is victim oriented in approach, has amended certain provisions of the Cr.P.C. and in that amendment the proviso to Section 372 of Cr.P.C. was added to confer the statutory right upon the victim to prefer an appeal before the High Court against acquittal order, or an order convicting the accused for the lesser offence or against the order imposing inadequate compensation. 11. The Full Bench of the High Court of Delhi after examining the relevant provisions under Section 2(wa) and proviso to Section 372 of Cr.P.C., in the light of their legislative history has held that the right to prefer an appeal conferred upon the victim or relatives of the victim by virtue of proviso to Section 372 is an independent statutory right. Therefore, it has held that there is no need for the victim in terms of definition under Section 2(wa) of Cr.P.C. to seek the leave of the High Court as required under sub-Section (3) of Section 378 of Cr.P.C. to prefer an appeal under proviso to Section 372 of Cr.P.C. The said view of the High Court is not legally correct for the reason that the substantive provision of Section 372 of Cr.P.C. clearly provides that no appeal shall lie from any judgment and order of a Criminal Court except as provided for by Cr.P.C. Further, sub-Section (3) to Section 378 of Cr.P.C. provides that for preferring an appeal to the High Court against an order of acquittal it is necessary to obtain its leave. We have to refer to the rules of interpretation of statutes to find out what is the effect of the proviso to Section 372 of Cr.P.C., it is well established that the proviso of a statute must be given an interpretation limited to the subject-matter of the enacting provision. We have to refer to the rules of interpretation of statutes to find out what is the effect of the proviso to Section 372 of Cr.P.C., it is well established that the proviso of a statute must be given an interpretation limited to the subject-matter of the enacting provision. Reliance is placed on the decision of this Court rendered by four Judge Bench in Dwarka Prasad v. Dwarka Das Saraf (1976) 1 SCC 128 : ( AIR 1975 SC 1758 ), the relevant para 18 of which reads thus: "18. ... A proviso must be limited to the subject-matter of the enacting clause. It is a settled rule of construction that a proviso must prima facie be read and considered in relation to the principal matter to which it is a proviso. It is not a separate or independent enactment. "Words are dependent on the principal enacting words to which they are tacked as a proviso. They cannot be read as divorced from their context "(Thompson v. Dibdin, 1912 AC 533). If the rule of construction is that prima facie a proviso should be limited in its operation to the subject-matter of the enacting clause, the stand we have taken is sound. To expand the enacting clause, inflated by the proviso, sins against the fundamental rule of construction that a proviso must be considered in relation to the principal matter to which it stands as a proviso. A proviso ordinarily is but a proviso, although the golden rule is to read the whole section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction." (Emphasis laid by this Court) 12. Further, a three Judge Bench of this Court by majority of 2:1 in the case of S. Sundaram Pillai v. V. R. Pattabiraman (1985) 1 SCC 591 : ( AIR 1985 SC 582 ) has elaborately examined the scope of proviso to the substantive provision of the Section and rules of its interpretation. The relevant paras are reproduced hereunder: "30. Sarathi in Interpretation of Statutes at pages 294-295 has collected the following principles in regard to a proviso: (a) When one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject-matter of the proviso. The relevant paras are reproduced hereunder: "30. Sarathi in Interpretation of Statutes at pages 294-295 has collected the following principles in regard to a proviso: (a) When one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject-matter of the proviso. (b) A proviso must be construed with reference to the preceding parts of the clause to which it is appended. (c) Where the proviso is directly repugnant to a section, the proviso shall stand and be held a repeal of the section as the proviso speaks the latter intention of the makers. (d) Where the section is doubtful, a proviso may be used as a guide to its interpretation: but when it is clear, a proviso cannot imply the existence of words of which there is no trace in the section. (e) The proviso is subordinate to the main section. (f)A proviso does not enlarge an enactment except for compelling reasons. (g) Sometimes an unnecessary proviso is inserted by way of abundant caution. (h) A construction placed upon a proviso which brings it into general harmony with the terms of section should prevail. (i) When a proviso is repugnant to the enacting part, the proviso will not prevail over the absolute terms of a later Act directed to be read as supplemental to the earlier one. (j) A proviso may sometimes contain a substantive provision. xxx xxx xxx 32. In Ishverlal Thakorelal Almaula v. Motibhai Nagjibhai ( AIR 1966 SC 459 ) it was held that the main object of a proviso is merely to qualify the main enactment. In Madras and Southern Mahrata Railway Co. Ltd. v. Bezwada Municipality ( AIR 1944 PC 71 ) Lord Macmillan observed thus: "The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case." 33. In Madras and Southern Mahrata Railway Co. Ltd. v. Bezwada Municipality ( AIR 1944 PC 71 ) Lord Macmillan observed thus: "The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case." 33. The above case was approved by this Court in CIT v. Indo Mercantile Bank Ltd. ( AIR 1959 SC 713 ) where Kapur, J. held that the proper function of a proviso was merely to qualify the generality of the main enactment by providing an exception and taking out, as it were, from the main enactment a portion which, but for the proviso, would fall within the main enactment. In Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subbash Chandra Yograj Sinha ( AIR 1961 SC 1596 ) Hidayatullah, J., as he then was, very aptly and succinctly indicated the parameters of a proviso thus: "As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, a proviso is not interpreted as stating a general rule." xxx xxx xxx 36. While interpreting a proviso care must be taken that it is used to remove special cases from the general enactment and provide for them separately. 37. In short, generally speaking, a proviso is intended to limit the enacted provision so as to except something which would have otherwise been within it or in some measure to modify the enacting clause. Sometimes a proviso may be embedded in the main provision and becomes an integral part of it so as to amount to a substantive provision itself." (Emphasis supplied) Thus, from a reading of the above said legal position laid down by this Court in the cases referred to supra, it is abundantly clear that the proviso to Section 372 of Cr.P.C. must be read along with its main enactment i.e., Section 372 itself and together with sub-Section (3) to Section 378 of Cr.P.C. otherwise the substantive provision of Section 372 of Cr.P.C. will be rendered nugatory, as it clearly states that no appeal shall lie from any judgment or order of a Criminal Court except as provided by Cr.P.C. 13. Thus, to conclude on the legal issue: "whether the appellant herein, being the father of the deceased, has statutory right to prefer an appeal to the High Court against the order of acquittal under proviso to Section 372 of Cr.P.C. without obtaining the leave of the High Court as required under sub-Section (3) to Section 378 of Cr.P.C.", this Court is of the view that the right of questioning the correctness of the judgment and order of acquittal by preferring an appeal to the High Court is conferred upon the victim including the legal heir and others, as defined under Section 2(wa) of Cr.P.C., under proviso to Section 372, but only after obtaining the leave of the High Court as required under sub-Section (3) to Section 378 of Cr.P.C. The High Court of M.P. has failed to deal with this important legal aspect of the matter while passing the impugned judgment and order. 14. Adverting to another contention of the learned counsel on behalf of the appellant regarding the failure on the part of the High Court to re-appreciate the evidence it is clear from a perusal of the impugned judgment and order passed by the High Court that it has dealt with the appeal in a very cursory and casual manner, without adverting to the legal contentions and evidence on record. The High Court in a very mechanical way has stated that after a perusal of the evidence on record it found no reason to interfere with the decision of the trial court as the prosecution has failed to establish the charges levelled against the accused beyond reasonable doubt and it has dismissed the appeal by passing a cryptic order. This Court is of the view that the High Court, being the Appellate Court, has to exercise its appellate jurisdiction keeping in view the serious nature of the charges levelled against the accused. The High Court has failed to exercise its appellate jurisdiction properly in the appeal filed by the appellant against the judgment and order of acquittal passed by the trial court. 15. The High Court has failed to exercise its appellate jurisdiction properly in the appeal filed by the appellant against the judgment and order of acquittal passed by the trial court. 15. Hence, the impugned judgment and order of the High Court is not sustainable in law and the same is liable to be set aside by this Court and the case is required to be remanded to the High Court to consider for grant of leave to file an appeal by the appellant as required under sub-Section (3) to Section 378 of Cr.P.C. and thereafter proceed in the matter.” 32. In view of the aforesaid discussion, the appeal could have been filed before this Court after seeking leave, as provided under Section 378(3) of the Cr.P.C. 33. However, the moot question, which I need to answer, is whether I should disturb the impugned order, though the same is without jurisdiction. The Magistrate, while dismissing the complaint, in exercise of its powers under Section 256 of the Cr.P.C., observed as under: “(1) The complainant of this case has filed a complaint u/s138 of the Negotiable Instrument Act. After issuance of process, the accused of this case remains present regularly. Looking to the record and proceedings of this complaint, it appears that, the complainant of this case does not remain present regularly, therefore an application was submitted to dismiss the complaint on behalf of the accused vide Exhibit15. Thereafter also, the complainant or his Ld. Advocate does not remain present regularly. On the last date of hearing, application for adjournment was submitted at 05:15 hours on behalf of the complainant vide Exhibit19, therefore, today's last adjournment was granted. (2) The accused and his Ld. advocate are present today. Despite being called out frequently till 16:30 hours today, the complainant or his Ld. advocate is not present or they have not submitted any application. In such circumstances, as the complainant has not shown interest in trial of his complaint in-spite of being given opportunity to proceed his complaint, it does not seem proper to try the present complaint due to absence of the complainant. Therefore, following order is passed in the larger interest of justice. : ORDER : The application of the accused vide Exhibit15 is hereby granted. Therefore, following order is passed in the larger interest of justice. : ORDER : The application of the accused vide Exhibit15 is hereby granted. The present complaint is ordered to be dismissed on account of absence of the complainant u/s256 of CR.P.C. The accused of this case is hereby acquitted from the offence levelled against him.” 34. The Revisional Court, while allowing the revision application of the complainant, took into consideration many relevant aspects and observed as under: “As per the record, it appears that in the year 2014, complainant has filed the complaint u/s 138 of Negotiable Instrument Act in Vadodara Court wherein verification of complainant was recorded. Thereafter, considering the record of trial Court, it appears that legal proceedings were carried out and complainant remained present in first four adjournments. Thereafter, on 18-04-2016, complainant has filed the application at Exh.8 to issue warrant to accused as accused was not attending the trial and said application was granted by the Court. Thereafter, said case was transferred to other Court and it was heard on the stage of issuance of warrant/notice to accused on 10-06-2015, 11-08-2015, 09-09-2015, 15-10-2015, 30-11-2015 and 15-12-2015. Thereafter, on 20-06-2016, as adjournment application was filed again by the accused, same was rejected and it was ordered to issue warrant to accused. Thereafter, case was tried on the stage of evidence. Thereafter, case was transferred to other Court. Thereafter, in new Court, this case was tried on the stage of evidence for two adjournment dates. Thereafter, while reading the rojkaam dated 13-04, it appears that as complainant or his Advocate were not attending the trial, note thereof was made and as apology report at Exh.14 and application at Exh.15 to dismiss the complaint were filed by the accused, case was adjourned on the stage of issuance of notice to complainant and reply of Exh.15. Thereafter, while reading the rojkaam dated 26-05-2017 it appears that accused has filed a report and case was adjourned on the stage of issuance of summons to complainant. Similarly, on 13-06-2017, accused has filed his apology report and as complainant or his Advocate did not remain present despite calling out matter, case was adjourned on the stage of issuance of summons to complainant. Thus, considering the details of above dated rojkaam it appears that order was passed to issue summons/notice to the complainant and matter was adjourned for same reason. Thus, considering the details of above dated rojkaam it appears that order was passed to issue summons/notice to the complainant and matter was adjourned for same reason. But, considering the entire record, it appears that no note has been made as to whether any summons/notice was issued and whether served or un-served upon the complainant. Generally, when such order to issue notice/summons is passed in any case, concerned Court employee makes an endorsement in the last column after issuing summons but, no such endorsement is found in this case and therefore it cannot be believed that summons/notice was issued to complainant during all these adjournments. While reading the rojkaam dated 30-06-2017 it appears that apology report has been filed by the accused and as Advocate appearing for complainant filed adjournment application at Exh.19 to sought time, last chance was given by trial Court by passing appropriate order. While reading the rojkaam dated 06-07-2017 it appears that apology report has been filed by the accused and as complainant or his Advocate were not present during the trial and as trial Court noted that complainant or his Advocate are not interested to run the trial of this case, complaint filed by complainant was rejected as dismissed for default and impugned order of Exh.1 was passed accordingly. Thus, looking to the entire record of the said case, this case has frequently been ordered to be transferred in various courts and the complainant has remained present in all the previous courts. Thereafter, as the complainant did not remain present after this case has been transferred to the previous court, the Ld. trial court has ordered to issue Notice/Summon to the complainant and for that three adjournments have been granted. But, the remarks have not been found regarding service of Summon/Notice issued to the complainant or the notice returned duly served/un-served has not been produced with this case and therefore, the question arises whether notice/summon was issued or not, to the complainant. Looking to the impugned order of the trial court, no such remark has been made therein that despite service of summons/notice to the complainant, as they do not appear, the complaint has been dismissed. Looking to the impugned order of the trial court, no such remark has been made therein that despite service of summons/notice to the complainant, as they do not appear, the complaint has been dismissed. Thus, when no summon/notice has been issued or served to the complainant, it does not seem just to dismiss the complaint of the complainant u/s256 of CR.P.C. due to absence of the complainant, only upon the application of the accused. If the order in this case had been passed, after conducting the trial, by the Ld. trial court, the complainant could have proved his case on merits. Considering the entire record, it appears that, the accused has been granted exemption from appearance on each date of hearing by the Ld. trial court, while he has passed an order of dismissing the complaint of the complainant for default without conducting the trial on merits and without ensuring whether the notice/summon has been served to the complainant who is an aggrieved party and after giving only one opportunity to his advocate. Thus, when the complainant has not been intimated about his case being transferred to other court, it is not just to pass an order which is harmful to any party due to such type of negligence and carelessness, according to the principles established by law. Moreover, according to the principles established by law, the disposal of any complaint is assumed to be proper, just and reasonable, if it is tried by following legal procedure, considering the evidences produced on record, and on merits.” 35. Associated Cement Company Ltd. vs. Kesavanand ( AIR 1998 SC 596 ) was a case filed under Section 138 of the N.I Act. There, the Trial Court acquitted the accused under Section 256 (1) of Cr.P.C. In that case, the two witnesses were examined on the side of the complainant and the case was posted for further evidence, on which day the complainant was absent. The learned Magistrate recorded an order of acquittal under Section 256 (1) of the Code on the next day, since the complainant and his counsel were absent on that day also. The Supreme Court considered the purpose of including a provision like Section 247 in the old Code (Section 256 in the new Code). The learned Magistrate recorded an order of acquittal under Section 256 (1) of the Code on the next day, since the complainant and his counsel were absent on that day also. The Supreme Court considered the purpose of including a provision like Section 247 in the old Code (Section 256 in the new Code). The Supreme Court has stated thus: "What was the purpose of including a provision like S.247 in the old Code (or S.256 in the new Code). It affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. An accused who is per force to attend the Court on all posting days can be put to much harassment by a complainant if he does not turn up to the Court on occasions when his presence is necessary. The Section, therefore, affords a protection to an accused against such tactics of the complainant. But that does not mean that if the complainant is absent, Court has a duty to acquit the accused in invitum" (para 17). 36. The Apex Court considered as to when could the Magistrate acquit the accused under Section 247 of the old Code (Section 256 (1) of the new Code) on the ground of nonappearance of the accused. Paragraph 18 of the judgment reads thus: "Reading the Section in its entirety would reveal that two constraints are imposed on the Court for exercising the power under the Section. First is, if the Court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the Court notices that the complainant is absent on a particular day the Court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the Court is free to dismiss the complaint and acquit the accused. If the situation does not justify the case being adjourned the Court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice" (para 18).” 37. S. Anand v. Vasumathi Chandrasekhar, AIR 2008 SC 1296 was a case where the accused was prosecuted for the alleged commission of an offence under Section 138 of N.I. Act. Witnesses on behalf of the prosecution had been examined and the evidence on the side of the complainant was closed. A date was fixed for examination of the defence witness and argument. The accused then filed an application for cross-examination of the complainant herself. That petition was rejected as against which revision petition was filed in the Court of Session. No order of stay was passed in that case. It was contended that the accused had been present before the trial Court, but the complainant remained absent. Later, an application was filed by the accused for his acquittal on the ground of absence of the complainant. That petition was allowed and the learned Magistrate acquitted the accused under Section 256 (1) Cr.P.C. Appeal filed before the High Court was allowed. It was noticed that before allowing the appeal the accused was not given notice. 38. It was contended before the Apex Court that it was obligatory on the part of the advocate to appear on the date of hearing. The accused was appearing in person and was present in Court on all the dates of hearing. It was observed by the Apex Court that on the date fixed for examining the defence witnesses even in the absence of the complainant the accused could have examined his witnesses, if he wanted to do the same. Therefore, the appearance of the complainant was not necessary. It was also noted that in fact the complainant did not get herself examined as a witness in that case. But she was sought to be summoned again for cross-examination. That petition was not allowed. Therefore, the appearance of the complainant was not necessary. It was also noted that in fact the complainant did not get herself examined as a witness in that case. But she was sought to be summoned again for cross-examination. That petition was not allowed. But it was held by the Apex Court that it did not mean that the court could exercise its discretionary jurisdiction under Section 256 of the Code at that stage . It was then held by the Supreme Court that the presence of the complainant or her lawyer would have been necessary only for the purpose of cross-examination of the witnesses in the presence of the complainant. If she did not intend to do so she would do so at her peril, but it cannot be said that her presence was absolutely necessary. It is also seen observed that when the prosecution has closed its case and the accused has been examined under Section 313 of the Code, the Court was required to pass a judgment on the merit of the matter. 39. The power under Article 227 of the Constitution of India is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate Courts or Tribunals within the bounds of their authority and not for correcting mere errors. The power under Article 227 of the Constitution is wider than the one conferred on the High Court by Article 226 in the sense that the power of superintendence is not subject to those technicalities of procedure or traditional fetters which are to be found in the certiorari jurisdiction. The exercise of jurisdiction under Article 227 of the Constitution is limited and restrictive in nature. It can be exercised in the circumstances where the orders passed were for want of jurisdiction, error of law, perverse findings and gross violation of natural justice. Although the impugned order could be termed as without jurisdiction, yet the High Court may refuse to disturb the same, as substantive justice is done by the Court. 40. In the present case, the Revisional Court, in my view, has reached to the right conclusion. I see no good reason to disturb the conclusion arrived at by the Revisional Court that the complaint could not have been dismissed for want of non-prosecution. The Revisional Court has assigned cogent reasons referred to above. 41. 40. In the present case, the Revisional Court, in my view, has reached to the right conclusion. I see no good reason to disturb the conclusion arrived at by the Revisional Court that the complaint could not have been dismissed for want of non-prosecution. The Revisional Court has assigned cogent reasons referred to above. 41. A Division Bench of this Court in the case of Saurastra Paper and Board Mills vs. State of Gujarat [ (1992) 2 GLR 871 ], observed in para 12 as under: “..It is a settled principle of law that the remedy under Article 226 of the Constitution of India is discretionary in nature and in a given case, even if some action or order challenged in the petition is found to be illegal and invalid, the High Court while exercising its extraordinary jurisdiction there under can refuse to upset it with a view to doing substantial justice between the parties.” Relying upon a decision of the Supreme Court, the Division Bench proceeded to observe in para 13 as under: “In the case of Balvantrai Chimanlal Trivedi, Manager, Raipur Mft. Co. Ltd., Ahmedabad v. M.N. Nagrashna and Ors. reported in 1959II Lab LJ 837 certain employees of appellant-Mill had made an application to the authority under the Payment of Wages Act aiming that they were entitled to be paid according to a particular scale. The Authority held that the folders were entitled to the scale, rejecting the objection of the appellant to its jurisdiction to entertain such application. The appellant then filed a writ petition, but that was summarily dismissed by the High Court. The appellant, therefore, appealed to the Hon'ble Supreme Court of India by special leave and intended that the Authority had no jurisdiction to entertain the application and also disputed its decision on merits. The Hon'ble Supreme Court of India found that the view of the Authority on merits was correct and as regards the other contention, it was of the opinion that there was some force in the contention regarding jurisdiction. The Hon'ble Supreme Court of India found that the view of the Authority on merits was correct and as regards the other contention, it was of the opinion that there was some force in the contention regarding jurisdiction. Following the ratio laid down in the case of A.M. Allison v. B.L. Sen 1957 (I) Lab LJ 472 Supreme Court of India held that the justice of the case did not require any interference in the circumstances and refused to interfere with the order of the High Court dismissing the writ petition of the appellant even though it had found that there was some force in the contention of the appellant regarding jurisdiction of the authority under the provisions of the Payment of Wages Act to entertain the application filed by the respondents therein.” Paras 14 and 15 are also important. I may quote the same as under: “14. In the case of Alang Marine Pvt Ltd., Bhavnagar v. Gujarat Maritime Board and Ors. reported in 1991(2) GLR 1321 , the appellant Alang Marine Pvt. Ltd., an unsuccessful tenderer for a job of construction and supply of steel hull Twin Self Propelled and self Hopper Grab Dredger for the port of Porbandar, had challenged the acceptance of the said tender by the respondents in favour of respondents No. 5 therein. The Division Bench has in an appeal held that the ultimate decision made in favour of the respondent No. 5 had not resulted in a material failure of justice and interference by the Writ Court for infraction of any statutory provision or norms, if such infraction has not resulted in injustice, is not a matter of course. While dismissing the Appeal, it has been held as under: "In this connection, reference may be made to the observation of the Hon'ble Supreme Court in the case of A.M. Allison and Ans. v. B.L. Sen and Ors. reported in 1957 (1) Lab LJ 472. The jurisdiction exercised by the writ Court is an equitable jurisdiction and if, ultimately, by the impugned decision, there has not been any material injustice, the writ Court may be well justified in refusing to interfere simply because there has been some infraction of law. v. B.L. Sen and Ors. reported in 1957 (1) Lab LJ 472. The jurisdiction exercised by the writ Court is an equitable jurisdiction and if, ultimately, by the impugned decision, there has not been any material injustice, the writ Court may be well justified in refusing to interfere simply because there has been some infraction of law. In the facts and circumstances of the case, it appears to us that selection of respondent No. 5 for the contract in question is otherwise justified and even if the Board is directed to consider the cases of tenders afresh on the basis of the materials before it and on critical evaluation of the tenderers, the Board can justly accept the tender of Respondent No. 5 for the reasons indicated earlier. It may be noted here that a public authority, in order to inspire confidence in its functioning for the public interest and to satisfy the public accountability, which it owes, must act fairly and reasonably and if on the score of pubic interest, a higher tender is accepted in preference to a lower tender, it should not only record reasons for such decision, but also communicate its decision to the concerned parties. Although it does not appear that the appellant was informed of the Board's decision to select respondent No. 5, the reasons for such selection have been clearly indicated in the critical and comparative evaluation of technical competency. We, therefore, do not find any reason to strike down the decision made in favour of respondent No. 5." We are in respectful agreement with the view expressed by the Division Bench to the effect that interference by the Writ Court for mere infraction of any statutory provision or norms, if such infraction has not resulted in injustice is not a matter of course. In the case of Shiv Shanker Dal Mills v. State of Haryana & andrs., AIR 1980 SC 1037 , the dealers in that case had paid market fees at the increased rate of 3%, which was raised from the original 2 per cent under Haryana Act 22 of 1977. The excess of 1 per cent over the original rate was declared ultra vires by the Hon'ble Supreme Court of India in the case of Kewal Krishna Puri and Anr. v. State of Punjab and Ors. AIR 1980 SC 1008 . The excess of 1 per cent over the original rate was declared ultra vires by the Hon'ble Supreme Court of India in the case of Kewal Krishna Puri and Anr. v. State of Punjab and Ors. AIR 1980 SC 1008 . The excess of 1 per cent over the original fate having been declared ultra vires, became refundable to the respective dealers from whom they were recovered by the Market Committee concerned. The demand for refund of the excess amounts illegally recovered from them not having been complied with, the dealers filed Writ Petitions under Article 32 and Article 226 of the Constitution for a direction to that effect to the Market Committee concerned. The Market Committees contended that although the refund of the excess collections might be legally due to the dealers, many of them had in turn recovered this excess percentage from the next purchasers. While disposing of the petition and laying down guidelines, the Hon'ble Supreme Court of India has held as under: "Article 226 grants an extraordinary remedy, which is essentially discretionary, although founded on legal injury. It is perfectly open for the court, exercising this flexible power, to pass such order as public interest dictates and equity projects. Courts of equity may, and frequently do, go much further both to give and withhold relief in furtherance of the public interest than they are accustomed to go where only private interests are involved. Accordingly, the granting or withholding of relief may properly be dependent upon considerations as of public interest." 15. It has been rightly observed that legal formulations cannot be enforced divorced from the realities of the fact situation of the case. While administering law it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations not to take it to the logical end, the High Court would be failing in its duty if it does not notice equitable consideration and mould the final order in exercise of its extraordinary jurisdiction. Any other approach would render the High Court a normal Court of Appeal, which it is not. Any other approach would render the High Court a normal Court of Appeal, which it is not. Having regard to the facts of the case, we are of the view that neutralization beyond the permissible limit of 100% under the impugned notification is only with respect to lowly paid workman engaged in the scheduled employment in question and has not resulted in a material failure of justice. To declare the special allowance part of the impugned notification to be illegal, is bound to result into untold hardship and miseries to them and it might create a lot of difficulties also in recovery of excess amount paid to them pursuant to the said notification. Therefore, in our view, this is a fit case where we should refuse to exercise our discretionary powers under Article 226 of the Constitution of India by striking down the part of the notification granting special allowance.” 42. In view of the above, I have reached to the conclusion that I should not disturb the order and allow the proceedings to be decided on merits i.e. on the basis of the evidence that may be led by the parties. 43. In the result, this application fails and is hereby rejected. The respondent No.1 – original complainant is directed to extend full cooperation and see to it that he remains present on the dates of the hearing before the Trial Court. The Trial Court shall proceed further and see to it that the entire case is completed with the judgment within a period of three months from the date of receipt of this order. Rule is discharged. The adinterim order granted earlier stands vacated. Petition dismissed.