NAND LAL Vs. RAM DULAREY

JUDGEMENT

(1.) THE appellant had filed a complaint in the court of the Judicial Magistrate, Lucknow agailnst the respondent No. 1 for offences under Sections 448/380 IPC. THE respondent No. 1 had been summoned by the court and some evidence was also recorded. On the adjourned date fixed for further evidence, however, the appellant did not appear when the case was called out. His counsel also did Dot appear. THE respondent No. 1 and his counsel were, however, present and consequently the learned Special Judicial Magistrate before whom the case was pending passed an order on 4-12-80 to the effect that the complaint be dismissed under Section 256 CrPC and it would have the effect of acquittal of the accused. Feeling aggrieved, the complainant has preferred this appeal and it has been contended that he alongwith his witnesses had been throughout present outside the court but somehow could not hear the case, being called out and when within minutes he learnt that the case had been called out, he went to the court and made an application which is on record. THE learned Magistrate however, felt helpless and rightly so when he had already dismissed the case and consequently the order of dismissal of the complaint and acquittal of the respondent No. 1 stood.

(2.) I have heard the learned counsel for the appellant. Nobody has appeared on behalf of respondent No. 1 although the name of the learned counsel had been shown in the printed cause list. For the State the learned counsel is present. Having heard the learned counsel for the appellant and gone through the record I feel that it is a fit case in which the order of dismissal of the complaint and of acquittal of the respondent No. 1 should be set aside in the interest of justice. It. would appear that the case was called out in the early hours of the day because the application for recalling the order was itself made at 12.45 P. M. and the learned Magistrate had passed an order on the aforesaid application at 1.15 P. M. The contention put forward was that the applicant was present outside the court but could not hear the case being called. His witnesses Kishori Lal and Harbans Singh were also present outside the Court. The learned Magistrate in his order passed on the application itself observed that the facts stated could not be disputed but the applicant did not respond to the calls and hence the case was dismissed and he was not in a position to recall his order. Learned counsel has placed reliance on Ram Narain v. Moot Chand, 1960 AWR 597 where it was held that dismissal of a complaint in the early part of the day was not proper and such orders should normally be passed towards the end of the day. In that case, however, it was found that instead of appeal a revision had been filed which did not lie and even the provisions of Section 561-A of the old Code of Criminal Procedure would not be attracted because it was a trivial matter and did not result into grave injustice. That was a case under Child Marriage Restraint Act. In the instant case, however, charges levelled are of serious nature and dismissal of the complaint for the aforesaid reason is bound to result in failure of justice. Some of the evidence was also recorded and besides the complainant two witnesses were present on the day and the application for recalling the order was made within an hour or so of the dismissal. That being so, the order of dismissal deserves to be set aside. Even the power under Section 482 of the Code of Criminal Procedure can be invoked with justification.