UTTAM CHAND Vs. DESH RAJ AND OTHERS

JUDGEMENT

(1.) By way of this petition, the petitioner assails order dated 30.01.2017, passed by the Court of learned Chief Judicial Magistrate, Hamirpur, H.P. in Cr. MA No. 171-IV/16, vide which, an application filed by him under Section 156(3) of the Code of Criminal Procedure has been dismissed on account of non-presence of the applicant and non-prosecution of the case on the said date before the learned Trial Court.

(2.) Petitioner filed an application under Section 156(3) of the Code of Criminal Procedure for registration of a case under Sections 415, 420 and 120-B of the Indian Penal Code against the persons named in the said application. This application is dated 24th November, 2016. As per record, the application was presented before the learned Court below on 25th November, 2016. It appears that on 30th January, 2017, when the case was listed, neither the applicant appeared before the learned Court below nor he was represented by any counsel. Learned Court below dismissed the case for non-presence of the applicant as also for non-prosecution of the case. Feeling aggrieved, the petitioner has filed the present petition.

(3.) Learned counsel for the petitioner has argued that impugned order is harsh, as learned Court below has erred in dismissing the application on account of non-presence of the applicant/petitioner and non-prosecution of the case as on the date in issue, the petitioner personally was not in a position to appear before the learned Court below, as he was admitted in a hospital at Gurgaon on account of an eye surgery from 27.01.2017 to 30.01.2017. The reason as to why his counsel did not appear before the learned Court below was not within his control, as he himself was confined to a hospital. He submits that before dismissing the case for non-presence of the applicant or his counsel, in the interest of justice, learned Court below should have given at least one adjournment and/or issued summons to the applicant and had even thereafter, the applicant or his counsel not appeared before the Court below, then the application could have been dismissed for non-presence and non-prosecution. Accordingly, he prays that as the impugned order is harsh and not in consonance with the provisions of Section 256 of the Criminal Procedure Code, the same may be set aside and directions be issued to the learned Court below to decide the application filed by the petitioner under Section 156(3) of the Criminal Procedure Code on merit.