Delhi High Court
M/S Bumpy Udyog vs M/S Sunder Enterprises & Ors on 23 October, 2009
Author: V. K. Jain
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.L.P. 124/2006
M/S BUMPY UDYOG ..... Petitioner
Through Mr. Inderjit Sharma, Advocate.
versus
M/S SUNDER ENTERPRISES & ORS. ..... Respondent
Through Mr.Parag Chawla, Advocate.
CORAM:
HON'BLE MR. JUSTICE V.K. JAIN
ORDER
% 23.10.2009
Leave granted. Heard.
A perusal of the proceedings dated 6th March, 2006 shows that on that
day, no-one appeared for the complainant and the respondents who were
present in the court informed the learned Magistrate that they had made
payment to the complainant in terms of the undertaking given earlier in the
court on 24th February, 2006. The learned Magistrate took the view that
the complainant, after accepting the money from the respondents had
stopped appearing without any legal basis and issued bailable warrant of
his arrest. On 13th March, 2006, the complainant was again not present
though the respondents were present. The learned Magistrate dismissed
the complaint on that date, and acquitted the respondents.
2. I am unable to appreciate how the learned Magistrate could have
issued bailable warrant of the arrest of the complainant only on account of
his absence on the date of hearing fixed by the learned Magistrate. There is
no provision in the Code of Criminal Procedure for issue of warrant against
a complainant on account of his absence in a summons case instituted
otherwise than on a police report. The appropriate course of action would
have been to dismiss the complaint in default if neither the complainant nor
his counsel was present as is provided in Section 256 of the Code. In fact,
that exactly was the course of action adopted by the Magistrate on 13 th
March, 2006.
3. It has been stated in para 6 of the petition that on 6 th March, 2006, the
Advocates were on strike in Tis Hazari Courts and the learned counsel for the
appellant, Sh. Ravi Sharma had undergone surgery at Safdarjung Hospital.
Being indisposed, the counsel could not contact the complainant.
Consequently, the complainant also could not appear before the learned
Magistrate on 6th March, 2006. Obviously, since no-one appeared on 6th March,
2006 on behalf of the complainant, the next date fixed by the learned
Magistrate also could not have been conveyed to him. It has been stated in
para 7 of the petition that when the learned counsel for the petitioner
attended the court, on inquiry, he came to know about dismissal of the
complaint and acquittal of the respondents. The complainant has also
taken the
plea that the statement made by the respondents before the learned
Magistrate was incorrect and in fact no payment was made by them to it.
I need not go into the question as to whether any payment was
actually made to the petitioner/complainant or not, as the complaint was
dismissed solely on account of absence of the complainant. I see no reason
to disbelieve the ground taken in the petition for the absence of the
complainant and his counsel on 6th March, 2006 and consequently on 13th
March, 2006. The petition is, therefore, allowed and the order passed by
the learned Magistrate on 13th March, 2006 is set aside. As a result, the
bail bonds furnished by the respondents stand revived. The parties are
directed to appear before the learned Magistrate at 10.00 A.M. on 16 th
November, 2009. Trial court record, if summoned, be sent back, alongwith
a copy of this order.
The petition stands disposed of.
V.K. JAIN,J
OCTOBER 23, 2009
sk
