MURARI LAL Vs. MADAN LAL

JUDGEMENT

(1.) PETITIONER -Murari Lal filed a complaint against the respondents herein (before the Chief Judicial Magistrate Gurgaon) under Sections 324, 325, 546 and 148 Indian Penal Code, and the Judicial Magistrate Ist Class Gurgaon after recording the preliminary evidence, by his order dated 1.5.1993, ordered the respondents to be summoned under Sections 324/325/34, Indian Penal Code, to appear on 14.6.1993. After some adjournments, the case was adjourned to 23.2.1995 on which date the learned Judicial Magistrate dismissed the complaint for default (vide Annexure P3) due to the non-appearance of the complainant. It is to quash the said order of dismissal that the petitioner has approached this Court under section 482, Cr.P.C., and prayed that the case may be remanded to the said Court for preceding further. The contention of the petitioner is that the non-appearance on 23.2.95 was unintentional since by over-sight, the petitioner had noted the date as 28.2.95 instead of 23.2.95. According to the petitioner he had been attending the Court on all dates and had even examined as many as five witnesses prior the summoning of the respondents. The petition is being opposed by the respondents on the ground that it is not maintainable under Section 482, Cr.P.C. The respondents also contend that the case was fixed for evidence on 15.3.94, 23.7.94, 10.9.94, 26.11.94 and then on 23.2.95, and that the petitioner and his counsel were not present on the last date of hearing and, therefore, the order of dismissal is perfectly valid. The respondents also contend that the allegation that the petitioner had noted a wrong date is only an excuse. 3. Therefore, the question that has to be considered is whether the order of the learned magistrate dismissing the complaint for default has to be set aside and whether the case be sent back to him for proceeding further with the case. 4. I have heard the counsel for both the sides. As rightly contended by the learned counsel for the petitioner, the fact that the petitioner was serious about the conduct of proceedings is apparent from the fact that he had examined five witnesses before the respondents were summoned, and it is also his allegation that he had been attending the court on all the hearings except the one when the case was dismissed for default. The case of the petitioner that he mistook the date as 28.2.95 instead of 23.2.95 is also probablised from the fact that he had applied on 28.2.1995 for copy of the order of learned Magistrate dismissing his complaint. Therefore, taking into consideration all these aspects I am the opinion that the contention of the petitioner that he had mistaken the date of hearing as 28.2.95 must be true and that his absence on 23.2.95 was due to a bona fide mistake. 5. The learned counsel for the respondents relied upon a decision of this Court in Gurjant Singh v. Shri Ranjodh Singh, (1977) 4 Cr. L.T. 305 to support his contention that the dismissal was only proper. What happened in that case was that neither the complainant nor his counsel was present on some of the adjourned dates, and, therefore, the accused moved a petition under Section 256(1) of the Code of Criminal Procedure for acquitting them (accused). But, the Magistrate instead of doing so, adjourned the case without recording any reason. The accused approached this Court under Section 482 Cr.P.C. for quashing the proceedings against them. It was in those circumstances held that when the complainant and his counsel were not present in Court (and since the Magistrate had adjourned the case without recording any reason) the Magistrate had no option but to acquit the accused. So, the proceedings were quashed. But, the Magistrate concerned in this case has not proceeded under Section 256(1) of the Cr.P.C. and acquitted the accused. He has dismissed the complaint for default. Therefore, I am of the opinion that this decision will not help the respondents. 6. In these circumstances, it cannot be stated this petition under section 482 Cr.P.C. is not maintainable. I feel that the order of dismissal of the complaint should be set aside and the case should be sent back to the trial Magistrate for proceeding further with the case. 7. In the result, the petition is allowed, setting aside the impugned order dismissing the complaint filed by the petitioner herein for default. The case is sent back to the Magistrate concerned for taking it back on file and for disposal according to law.