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2019 DIGILAW 369 (HP)

Uttam Chand v. Desh Raj

2019-04-03

AJAY MOHAN GOEL

body2019
JUDGMENT Ajay Mohan Goel, J. - By way of this petition, the petitioner assails order dated 30.01.2017, passed by the Court of learned Chief Judicial Magistrate, Hamirpur, H.P. in Cr. MA No. 171-IV/16, vide which, an application filed by him under Section 156(3) of the Code of Criminal Procedure has been dismissed on account of non-presence of the applicant and non-prosecution of the case on the said date before the learned Trial Court. 2. Petitioner filed an application under Section 156(3) of the Code of Criminal Procedure for registration of a case under Sections 415, 420 and 120-B of the Indian Penal Code against the persons named in the said application. This application is dated 24th November, 2016. As per record, the application was presented before the learned Court below on 25th November, 2016. It appears that on 30th January, 2017, when the case was listed, neither the applicant appeared before the learned Court below nor he was represented by any counsel. Learned Court below dismissed the case for non-presence of the applicant as also for non-prosecution of the case. Feeling aggrieved, the petitioner has filed the present petition. 3. Learned counsel for the petitioner has argued that impugned order is harsh, as learned Court below has erred in dismissing the application on account of non-presence of the applicant/petitioner and non-prosecution of the case as on the date in issue, the petitioner personally was not in a position to appear before the learned Court below, as he was admitted in a hospital at Gurgaon on account of an eye surgery from 27.01.2017 to 30.01.2017. The reason as to why his counsel did not appear before the learned Court below was not within his control, as he himself was confined to a hospital. He submits that before dismissing the case for non-presence of the applicant or his counsel, in the interest of justice, learned Court below should have given at least one adjournment and/or issued summons to the applicant and had even thereafter, the applicant or his counsel not appeared before the Court below, then the application could have been dismissed for non-presence and non-prosecution. Accordingly, he prays that as the impugned order is harsh and not in consonance with the provisions of Section 256 of the Criminal Procedure Code, the same may be set aside and directions be issued to the learned Court below to decide the application filed by the petitioner under Section 156(3) of the Criminal Procedure Code on merit. 4. I have heard learned counsel for the parties and have also gone through the impugned order as also the record appended with the petition. 5. On the basis of record, it cannot be disputed that on account of his eye surgery, the petitioner was admitted in an Eye Care Centre at Gurgaon, Haryana from 27.01.2017 up to 30.01.2017. This is evident from Annexure P-3. It is also not in dispute that as on the date when the application was dismissed by the learned Court, notice had not yet been issued to the respondents/accused. Record does not suggest that on previous date(s), applicant or his counsel had not appeared before the learned Trial Court, meaning thereby that non-presence of the applicant on 30.01.2017 was for the first time. In these circumstances, in my considered view, learned Trial Court rather than hastily dismissing the application for non-presence and non-prosecution of the case on behalf of the applicant for one solitary date, should have adjourned the case for another date and had the applicant and/or his counsel not appeared before the learned Court below on the said date also, then appropriate order should have been passed on the application. 6. This Court is not oblivious to the fact that learned counsel engaged by the petitioner had a duty to appear before the learned Court below, but as this Court is not aware as to whether the non appearance of learned counsel was bonafide or intentional, this Court is of the view that petitioner could not be made to suffer for the act of omission of learned counsel. Had the petitioner not been serious with regard to the application so filed by him, then he would not have had approached this Court under Section 482 of the Code of Criminal Procedure assailing the order passed by the learned Court below, vide which his application has been dismissed for non-presence of the applicant as also for non-prosecution of the case. 7. Accordingly, this petition is allowed. 7. Accordingly, this petition is allowed. Impugned order dated 30.01.2017 is set aside and the learned Court below is directed to decide the application under Section 156(3) of the Code of Criminal Procedure afresh in accordance with law. It is clarified that this Court has not expressed any view on merits of the case and the application shall be decided by the learned Court below completely uninfluenced by any observation made in this order. Registry is forthwith directed to return back the record of the case to the learned Court below. Petitioner is directed to appear before the learned Court below on 1st May, 2019. Learned Court below thereafter shall proceed with the matter in accordance with law. Petition stands disposed of in above terms. Miscellaneous applications, if any, also stand disposed of.