G K CHUGANI Vs. DHANWANTI

JUDGEMENT

(1.) The facts giving rise to this petition under Section 482 of the Code of Criminal Procedure (for short 'the Code') are that the petitioner-GK. Chugani is son-in-law of one Shri D.M. Waswani. The respondent-Smt. Dhanwanti claims to be the legally wedded wifs of Shri Waiwani. On 8th June 1982, the petitioner instituted a complaint against the respondent under Section 506(2) read with Section 507, Indian Penal Code (for short 'IPC'). It was contended that the respondent had been sending threatening calls on telephone and instigating her associates to make such threatening calls to him and members of his family for about a year. The motive for this was alleged to be the pendency of good deal of litigation between the family of the petitioner on the one hand and the respondent- Smt. Dhanwanti and her associates on the other. It wai pointed out that Smt. Kamla Chugani, wife of the petitioner and Maj. Baldev Chaman, son-in-law of the petitioner were cited as witnesses in some of the criminal cases.

(2.) The Metropolitan Magistrate passed an order under Section 156(3) of the Code directing the Station House Officer of the Police Station concerned to investigate the case and submit his report on or before 29th July 1982. On completion of investigation the SHO submitted a charge-sheet under Section 173 of the Code stating that a prima facie case under Section 507 Indian Penal Code was made out against her. Acting on the said report, the learned Magistrate directed vide order dated 7th September 1982 that summons beissued against the respondent to face trial for commission of an offence punishable under Section 507 Indian Penal Code However, on 10th January 1983, the learned Magistrate observed that he having taken cognizance of the offence under Section 190(c) of the Code upon an information received from a person other than a police officer the procedure laid down in Section 191 had to be followed. So, he informed the respondent that she was entitled to have the case enquired into or tried by another Magistrate. The respondent had earlier moved an application for the transfer of the case to some other court of competent jurisdiction on this very ground. Hence, the learned Magistrate referred the case to the Additional Chief Metropolitan Magistrate who transferred it to the court of Sn. T.D. Keshav and the parties were directed to appear before the transferee court. Admittedly, both the parties appeared in the traniferee court on 11th January 1983 ax per directions of the Additional Chief Metropolitan Magistrate but the Presiding Officer having gone for the purpose of identification parade, they were informed by the Reader of the court to appear on 12th January 1983. On that day, the petitioner failed to appear although the case was called thrice. However, the respondent appeared through her counsel and her personal appearance was exempted for that day. Eventually, therefore, the complaint was dismissed for non-prosecution by the petitioner.

(3.) Feeling aggrieved, the petitioner moved an application for restoration of the complaint but his application was rejected on the short ground that in view of the decision of the Supreme Court in Bindeshwari Praiad Singh v. Kali Singh, AIR 1977 SC 2432, he was not competent to restore the complaint as the order of dismissal amounted to a final order. Reliance was also placed in this context on a decision of a learned Single Judge of this Court in Cr. M. (M) 228/82, Mst. Shakkat Bano & Others v. Parveen Suri & Otheri, decided on 4th January 1983. The instant petition is directed against the aforesaid order dated 2nd August 1983 of the learned Metropolitan Magistrate rejecting the application of the petitioner for restoration.