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Madhya Pradesh High Court · body

2017 DIGILAW 820 (MP)

Vinod Singh Yadav v. Mahila Ramkali

2017-07-12

G.S.AHLUWALIA

body2017
ORDER 1. This petition under section 482 of CrPC has been filed against the order dated 5.11.2016 passed by the JMFC, Lahar, District Bhind in Criminal Case No.151/2016 by which the trial Court has taken cognizance against the applicant for offence under sections 323, 341, and 34 of IPC. 2. The necessary facts for disposal of the present application in short are that the respondent No.1 filed a complaint against the applicant and other co-accused persons for offence under sections 323, 294, 341, 354, 504, and 506 Part-II of IPC and under section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The allegations made against the applicant in the complaint were that on 8.4.2007 the complainant/respondent No.1 had gone to offer prayer in a temple and while she was coming back the applicant and other co-accused persons stopped the way of the complainant and co-accused Govind Singh with an evil intention caught hold of her hand and insulted and humiliated her by calling her by her caste's name and the applicant as well as other co-accused persons started assaulting the complainant by fists and blows and co-accused Jagat Singh assaulted on the chest of the complainant by the handle of the gun, as a result of which, she sustained injuries. It was further alleged that in order to insult the complainant in the public place, her blouse was torn because the complainant belongs to scheduled caste and she is a poor lady. The incident was witnessed by different witnesses and only because of their intervention she could be saved. 3. It appears from the record that on 9.4.2007 the complaint was filed and thereafter a report was called from the police and the statements of the complainant and her witnesses were recorded under sections 200 and 202 of CrPC and the case was fixed for arguments on registration of complaint. The matter kept lingering on for more than nine years and from the order sheets it is clear that the case was fixed for arguments on the question of registration of the complaint for the first time on 20.8.2014 and from thereafter, the counsel for the respondents on one pretext or other sought time to argue on the question of registration of the complaint. Consequently, by order dated 14.3.2016 the trial Magistrate dismissed the complaint for want of prosecution, as neither the complainant nor her counsel was present. From the record, it is clear that after the complaint was dismissed, the order was signed by the Presiding Officer also. Thereafter, it appears that the counsel for the complainant appeared and made an oral prayer for grant of further time to advance arguments on the question of registration of the complaint and the trial Court without passing any specific order for restoration of the complaint accepted the reasons given by the counsel for the complainant for his non-appearance and adjourned the case for advancing arguments on the question of registration/taking of cognizance. 4. It is submitted by the counsel for applicant that since this order dated 14.3.2016 was passed prior to registration of the complaint, therefore, he had no knowledge of the pendency of the complaint and it is settled law that before registration of the complaint, the person arrayed as an accused has no right to interfere with the proceedings and, therefore, the applicant did not challenge the order dated 14.3.2016 by which the trial Magistrate after dismissing the complaint in default for want of prosecution accepted the reasons assigned by the counsel for the complainant for his non-appearance and adjourned the case. It is submitted that subsequently by order dated 5.11.2016 the trial Magistrate has taken cognizance of the offence against the applicant, therefore, he is well within his right to make a submission that the order dated 5.11.2016 is without jurisdiction, as the second part of the order dated 14.3.2016 is bad in law. It is submitted that once the complaint is dismissed either for want of prosecution or under section 203 of CrPC, then a right is created in favour of the accused and before proceeding further either in criminal revision under sections 397, and 401 of CrPC or before considering the application for restoration of the complaint, it was obligatory on the part of the Magistrate to issue notice to the accused persons. It is further submitted that once the complaint is dismissed for want of prosecution and the order is also signed by the Presiding Judge, then the Court becomes functus officio and, therefore, without restoring the complaint, cannot grant a liberty to argue on the question of registration of the complaint. It is further submitted that once the complaint is dismissed for want of prosecution and the order is also signed by the Presiding Judge, then the Court becomes functus officio and, therefore, without restoring the complaint, cannot grant a liberty to argue on the question of registration of the complaint. It is further submitted that once the complaint was dismissed, then even otherwise there is no provision for restoration of the complaint, as the order would result in acquittal of the accused persons and, therefore, the only option available to the respondent/complainant was to file a criminal revision. 5. Per contra, it is submitted by the counsel for respondent No.1 that when the complaint is dismissed in default, then there is no bar for the complainant to file a fresh complaint on the same facts. When the second complaint can be filed on the same facts, then it would be too technical to take a view that the complaint cannot be restored because the dismissal of complaint in default of appearance of the complainant or her counsel would not amount to acquittal, as in the present case the cognizance was not taken on the day when the order under challenge was passed. 6. Heard the counsel for the parties. 7. From the record, it appears that for the first time the case was fixed for arguments on the question of registration of the complaint on 20.8.2014 and from the order sheets, which have been placed on record by the applicant, it is clear that the case was adjourned merely on the prayer of the counsel for the complainant granting time for advancing arguments on the question of registration of the complaint. Ultimately, on 14.3.2016 the trial Magistrate after noticing the fact that the case is pending for the last one and half years merely on the question of registration of complaint, dismissed the complaint for want of prosecution and the order was also signed. Once the order was signed, it is clear that the Court becomes functus officio and the order cannot be altered unless and until there is some clerical or arithmetical mistake, as there is no provision under the CrPC for review of an order. Once the order was signed, it is clear that the Court becomes functus officio and the order cannot be altered unless and until there is some clerical or arithmetical mistake, as there is no provision under the CrPC for review of an order. Furthermore, it appears that after dismissal of the complaint, the counsel for complainant appeared before the Magistrate and informed that because he was not feeling well, therefore, he had gone to the hospital and prayed for an adjournment, which was accepted by the Magistrate. Once the complaint was already dismissed in default, then there was no question of adjournment of complaint or for grant of another opportunity to advance arguments on the question of registration of the complaint. Thus, it is clear that the second part of the order dated 14.3.2016 passed by the Magistrate by accepting the reasons submitted by the counsel for complainant for not appearing in the first half of the day and thereby granting an another opportunity to the counsel for the complainant to advance arguments on the question of registration was without jurisdiction. It is well established principle of law that if the proceedings are without jurisdiction, then any proceeding taken there under would be a nullity. Accordingly, all subsequent proceedings including the order dated 5.11.2016 passed by the trial Magistrate taking cognizance of the complaint was a nullity. 8. At this stage, it is submitted by the counsel for the complainant that as the complaint was not dismissed on merits, but was dismissed in default of complainant and her advocate to remain present in the Court, therefore, the first part of the order dated 14.3.2016 passed by the Magistrate by which the complaint filed by the complainant was dismissed for want of prosecution would not be a bar for the complainant to file a fresh complaint on the same facts and, therefore, a liberty may be granted to the complainant to file a fresh complaint. 9. Per contra, it is submitted by the counsel for the applicant that although the second complaint on the same facts can be filed after dismissal of the first complaint in default, but it is subject to certain conditions and the right given to the complainant is not absolute. 10. Be that as it may. 9. Per contra, it is submitted by the counsel for the applicant that although the second complaint on the same facts can be filed after dismissal of the first complaint in default, but it is subject to certain conditions and the right given to the complainant is not absolute. 10. Be that as it may. As the complaint in question was dismissed in default by order 14.3.2016, therefore, the complainant is entitled to avail all legal remedies, which may be available to her under the law and, therefore, no liberty is required for the said purpose. Accordingly, the order dated 5.11.2016 passed by the JMFC, Lahar, District Bhind in Criminal Case No.151/2016 is hereby set aside, as without jurisdiction. The second part of the order dated 14.3.2016, by which the matter was adjourned after dismissing the complaint in default, is also set aside. Needless to mention here that this order will not come in the way of the complainant to take recourse to legal remedies, which are available to her, in accordance with law. Accordingly, this application succeeds and is hereby allowed.