NAFEES ALIAS BHUREY Vs. STATE OF U P

JUDGEMENT

(1.) HEARD Sri Mukul Tripathi, learned counsel for the revisionists and learned AGA in opposition.

(2.) A complaint case was instituted by Arif Ahmad against Nafees @ Bhurey and another as Complaint Case No. 1460 of 2008 before Additional Chief Judicial Magistrate, Court No. 4, Ghaziabad. After due formality and conducting an inquiry, the accused persons were summoned in the aforesaid complaint case to stand trial for offences under Sections 323, 324, 504, 506 IPC, out of aforesaid sections, Sections 324, 506 are punishable with more than two years of imprisonment, therefore, procedure which Magistrate was required to undertake was that of warrant case. Since the complainant was not interested in prosecuting the accused in the estimation of the trial Magistrate, hence the complaint was dismissed in default by the trial Judge mentioning Section 256 Cr.P.C. Trial Judge, however did not pass any order either of acquittal or discharge of the accused.

(3.) CONTENTION of the learned counsel for the revisionists is patently erroneous for following two reasons: (1) That mere mentioning of Section a wrong 256 Cr.P.C, the order of dismissal of complaint simplicitor in a warrant trial case will not change the character of the order and will not take it out side the purview of Section 256 Cr.P.C; (2) That Magistrate in fact exercised power under Section 249 Cr.P.C. but while dictating the order wrongly mentioned Section 256 Cr.P.C. Under Section 249 Cr.PC. in absence of the complainant, a complaint can be dismissed and the accused can only be discharged. Against such a dismissal and discharge, the complainant has got a right of revision because the right of discharge is not amenable or subjected to the appellate jurisdiction of higher Court.