GURMEET SINGH DHALIWAL Vs. OM PARKASH

JUDGEMENT

(1.) GURMIT Singh petitioner filed a complaint under Sections 326/342 I.P.C. against Om Parkash respondent who was Station House Officer, Police Station, Sector-11, Chandigarh, in the Court of Judicial Magistrate Ist Class, Chandigarh. After preliminary evidence was recorded the respondent was summoned to face trial for offences under Sections 325 & 342 I.P.C vide order dated 27.4.1991. The case was fixed for pre-charge evidence on 15.7.1992 when the petitioner could not appear in Court and the complaint was dismissed for non-appearance of the complainant on that day although the counsel for the complainant was present. Gurmit Singh has assailed the order dated 15.7.1992 vide which the complaint was dismissed for want of prosecution, by way of present revision petition on the ground that the petitioner could not appear in Court due to untimely death of his elder brother Shri G.S. Dhaliwal, Advocate and his absence was not intentional.

(2.) NOTICE of the revision petition was given to the respondent but he did not appear despite service.

(3.) A perusal of the record shows that the respondent was summoned to face trial for offences under Sections 325 and 342 of Indian Penal Code which are cognizable offences. Under Section 249 of the Code of Criminal Procedure a Magistrate may in his discretion discharge the accused in the absence of the complainant before the charge is framed if the offence can be lawfully compounded or is not a cognizable offence. In the instant case the offences for which the respondent was facing trial were cognizable and the absence of the petitioner was not wilful. It was on account of untimely death of his brother that he could not appear in Court on the date fixed though his counsel was present. The petitioner could not file a second complaint on the same facts as that was permissible only if a special case was made out. The only remedy available to him is by way of the present revision petition for getting the impugned order set aside. Considering the fact that absence of the petitioner was not intentional, I allow this petition and set aside the impugned order. The trial Court will proceed with the case from the stage of pre-charge evidence. The petitioner through his counsel is directed to appear in the trial Court on 15.9.1993. Petition allowed.