Calcutta High Court (Appellete Side)
The New Indian Assurance Co. Ltd vs Unknown on 12 August, 2021
12
12.08.2021
Ct.35
AKG
CRR 794 of 2021
(Through Video Conference)
In Re: - An application under Section 401 read with Section 482 of
the Code of Criminal Procedure, 1973.
And
In the matter of: The New Indian Assurance Co. Ltd.
.... Petitioner
Mr. Sandipan Ganguly,
Mr. Karan Dudhwewala,
Mr. Avirup Mondal,
Mr. Soumalya Ganguli
... For the Petitioner
Mr. Debrup Bhattacharjee
...For the Opposite Party No. 2.
The petitioner, in this revisional application, has challenged an
order dated March 1, 2021, passed by the learned Chief Judge, City
Sessions Court, Calcutta, in Criminal Revision No.92 of 2020.
By the said order impugned, the learned Judge upheld the
order dated January 18, 2020, passed by the learned Metropolitan
Magistrate, 11th Court, Calcutta in a complaint case under Sections
465/468/120B of the Indian Penal Code.
By the said order, the learned Magistrate discharged the
accused invoking Section 249 of the Code of Criminal Procedure,
1973, as it was observed by the learned Magistrate that in spite of
repeated opportunities, the complainant did not appear before the
Court for long. The learned Magistrate was of the opinion that the
process was issued against the petitioner under the compoundable
Sections of the Indian Penal Code and, therefore, he discharged the
accused under Section 249 of the Code of Criminal Procedure, 1973.
Mr. Sandipan Ganguly, learned senior advocate, appearing for
the petitioner submits that the precondition invoking Section 249 is
that the alleged offence has to be non-cognizable and compoundable.
He further submits that the process, in this case, was issued
under Sections 465/468 read with Section 120B of the Indian Penal
Code, 1860. The offences committed under those aforesaid sections
are non-compoundable. The offence committed under Section 468 of
the Indian Penal Code is cognizable and, therefore, in this case the
offence committed allegedly under Section 120B is also cognizable.
The learned Magistrate in the Court below was, therefore, not justified
in discharging the accused by invoking Section 249 of the Code of
Criminal Procedure.
Mr. Ganguly submits that the learned Sessions Judge was not,
therefore, justified in upholding the order of the learned Magistrate.
Section 249 of the Criminal Procedure Code, 1973 is quoted
below:
"249. Absence of complainant.--When the proceedings
have been instituted upon complaint, and on any day fixed for
the hearing of the case, the complainant is absent, and the
offence may be lawfully compounded or is not a cognizable
offence, the Magistrate may, in his discretion, notwithstanding
anything hereinbefore contained, at any time before the charge
has been framed, discharge the accused."
The section authorises the Magistrate to discharge an accused
at any time before the charge is framed if, in any complaint case,
triable as a warrant case, on any day fixed for hearing, the
complainant remains absent. Such power is discretionary in nature,
and the learned Magistrate needs to use his discretion judiciously
having regard to the overall conduct of the complainant. The power
under this section should not be invoked in every case whenever the
complainant fails to appear before the charge is framed.
The learned Magistrate, however, cannot use such discretion
where the alleged offences are not compoundable or cognizable. In
other words, Section 249 of the Code can be invoked only when the
offences alleged are compoundable in terms of Section 320 of the
Code or non-cognizable in terms of Section 2(l) of the Code. The
alleged offence need not be compoundable as well as non-cognizable,
if either of the two conditions is satisfied the Section 249 of the Code
gets attracted.
In the case in hand, the petitioner was utterly negligent in
conducting its case before the learned Magistrate, and such indolence
prompted the learned Magistrate to invoke Section 249 of the Code,
but such exercise of power cannot be sustained in law since all
offences involved in the case are non-compoundable and barring
offence under Section 465 of the Code, all offences are cognizable. The
learned Magistrate in the Court below, therefore, could not discharge
the accused under Section 249 of the Code.
In view of the discussion above, the order of the learned
Magistrate as upheld by the learned Sessions Judge is liable to be set
aside.
It has been submitted by the learned advocate for the opposite
party no. 2 that this revisional application is not maintainable in view
of the judgement reported at (1993) 1 SCC 435 (Dharampal Vs.
Ramshri (SMT) ), wherein it has been held that second revisional
application, after the dismissal of the first one by Sessions Court,
cannot be entertained by the Hon'ble High Court under Section 482 of
the Code of Criminal Procedure, 1973.
On the other hand, Mr. Ganguly has relied upon a judgment
reported at (1997) 4 SCC 241 (Krishnan Vs. Krishnaveni) to urge
that this application is maintainable.
It seems that the judgment reported at (1993) 1 SCC 435
(Dharampal Vs. Ramshri (SMT) ) has been expressly overruled by
the judgment reported at (1997) 4 SCC 241. It was held that the
second revisional application before the High Court under sub section
(1) of Section 397 is prohibited by sub section (3) thereof, but the
inherent power of the High Court is still available under Section 482
of the Code of Criminal Procedure.
In that view of the above, the revisional application being CRR
794 of 2021 stands allowed.
Learned advocate for the opposite party no. 2, however,
suggests that the accused, in this case, is liable to be discharged
under Section 245 (3) of the Code of Criminal Procedure, 1973.
I need not go into that aspect in this revisional application. The
opposite party no. 2 will be at liberty to approach the learned
Magistrate seeking discharge under Section 245(3) of the Code, if it is
so advised.
All parties shall act upon the server copy of this order duly
downloaded from the official website of this Court.
(Kausik Chanda, J.)
