NISHA SHARMA Vs. VINOD KUMAR SHARMA

JUDGEMENT

(1.) -This revision petition is directed against the order of the Court of Shri Z.S. Solanki, Metropolitan Magistrate, dated June 1,1987 by which he dismissed the complaint of Smt. Nisha Sharma, petitioner, as pending in his court for the offence punishable under S. 406 of the Indian Penal Code. A police challan for the same offence punishable under S. 406 Indian Penal Code was already pending in the court of Shri Solanki against the same three accused persons relating to the same matter. The complaint case was earlier pending in the court of Mrs. Kanwal Inder, Additional Chief Metropolitan Magistrate, Delhi. By an order of the Additional Sessions Judge in a revision the complaint case was directed to be tried by the same learned Magistrate before whom the police challan was pending trial. The record of the complaint case of Smt. Nisha Sharma bad accordingly been directed to be transferred from the court of Mrs. Kanwal Inder to the court of Shri Solanki on March 17, 1987. On April 1. 1987 the complainant, Smt. Nisha Sharma, the present petitioner and the accused persons had appeared before the court of Shri Solanki in the complaint case. The complaint case was then adjourned to June 1, 1987 in order that the same may be heard and tried alongwith the police challan by the court of Shri Solanki. Both these cases namely, the police challan case as well as the complaint case were taken up by Shri Solanki on June 1, 1987 at different times. Sometime in between April 18, 1987 and June 1, 1987 the cases of police station Tilak Nagar, New Delhi were transferred from the court of Shri Solanki to the court of Ms. Urmila Rani Sharma. The police challan against the three accused was also accordingly transferred to the said court. Consequently, the police challan did not come up for consideration before the court of Shri Z.S. Solanki on June 1, 1987. The complaint case of Smt. Nisha Sharma, petitioner, was however taken up by Shri Solanki. On the complainant not having appeared before the court and all the three accused persons being present, the complaint was dismissed in default of appearance of the complainant and all the three accused were discharged in the case.

(2.) IT is against this order of Shri Solanki that the present revision petition has been preferred by Smt. Nisha Sharma, petitioner, praying for the setting aside of the order of dismissal of the complaint and for its restoration and being tried alongwith the said police challan. The complaint was admittedly transferred to the court of Shri Solanki under the provisions of S. 210(1) Cr. P.C. As per S. 210(2) Cr. P.C. the complaint case was also to be enquired into and tried alongwith the police challan case as if both these cases had been instituted on a police report. IT was thus not incumbent on the part of the complainant to be present in person before the trial court for prosecuting her complaint case which was to be enquired into and tried as a case instituted on a police report. That being so, the learned Magistrate was in error in having dismissed the complaint case of the petitioner on account of non-appearance of the complainant before him on the said date. Apart from that the complaint case purported to be one for the offence punishable under S. 406 Indian Penal Code which is a cognizable offence. Under S. 249 Cr. P.C. the proceedings instituted on a complaint for the offence may be lawfully compounded and is not a cognizable offence, the Magistrate may, in his discretion, dismiss the complaint and discharge the accused. The allegations in the complaint that were to be enquired into by the learned Magistrate made out a case of a cognizable offence. As such, the complaint could not have been dismissed on account of the nonappearance of the complainant. The impuged order of the learned Magistrate is thus illegal. I accordingly accept the revision petition, set aside the impugned order of the learned Magistrate dated June 1, 1987 and restore the complaint. I am informed that the next date fixed in the police challan case is July 19, 1988 before Mrs. Urmila Rani Sharma for recording of evidence of the prosecution. The record of the complaint case in question shall be forwarded by the court of Shri Solanki to the said court and the court of Mrs. Urmila Rani Sharma shall enquire into and try the complaint case alongwith the said police challan case in accordance with law. The parties are directed to appear before her in the said case on July 19,1988.