Jitendra Singh vs Jai Karan Singh & Ors
2013 Latest Caselaw 1571 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+         CRL. L.P. 179/2013

          JITENDRA SINGH                                   ..... Petitioner
                        Through:          Mr. M.L. Yadav, Adv.

                                         versus

          JAI KARAN SINGH & ORS.                       ..... Respondents
                        Through: Nemo.

          CORAM:
          HON'BLE MR. JUSTICE G.P.MITTAL
                         ORDER

% 08.04.2013

1. By virtue of this Petition, the Petitioner who was the complainant before the learned Additional Chief Metropolitan Magistrate (ACMM) seeks setting aside of the order dated 04.02.2013 whereby the Petitioner's complaint for the offence punishable under Section 500 of the Indian Penal Code (IPC) was dismissed for non appearance of the Petitioner (the Complainant) and the accused was acquitted.

2. The short ground submitted by the learned counsel for the Petitioner for setting aside of the impugned order is that the Petitioner's absence on the date the complaint was dismissed was not intentional and thus the learned ACMM erred in dismissing the complaint and acquitting the Respondents.

3. A perusal of the impugned order reveals that a complaint for the offence punishable under Section 500 IPC was preferred sometime in the year 2006. After recording pre-summoning evidence, the Respondents were

ordered to be summoned for the offence punishable under Section 500 IPC by an order dated 25.08.2008. The learned ACMM noticed that the complainant absented on large number of hearings compelling the learned ACMM to dismiss the complaint in terms of Section 256 of the Code of Criminal Procedure, 1973 (Cr.P.C.) by the impugned order. The relevant portion of the order is extracted hereunder:-

"As per the record, the complaint u/s 200 Cr.P.C. was filed by the complainant on 06.06.2006 and after completion of pre summoning evidence, vide order dt. 25.08.2008, cognizance of the offence u/s. 500 IPC was taken by Ld. Predecessor. Accursed Jai Karan Singh and Smt. Munesh were summoned. Both the accused persons appeared before the court and thereafter, vide order dt. 13.01.2010, notice u/s. 251 Cr.P.C. qua commission of offence u/s 500 IPC was given to both the accused persons to which they pleaded not guilty and claimed trial. The matter was accordingly adjourned to 03.03.2010 for Complainant Evidence. On 03.03.2010, the complainant was absent and the case was adjourned to 22.05.2010. Again on 22.05.2010, the complainant was absent and counsel for the complainant moved an exemption application on his behalf which was allowed. The case was thereafter adjourned to 21.08.2010. On 21.08.2010, nobody was present however, no adverse order was passed and the case was adjourned to 10.11.2010 for Complainant Evidence. Further perusal of the ordersheet reveals that despite sufficient opportunities, the complainant has not led any evidence so far and last & final opportunities were also given to the complainant on two occasions. Today also the complainant is not present and the counsel for complainant has moved an application on his behalf seeking exemption stating inter alia that the complainant cannot attend the court as he has gone to Hastinapur, U.P. to attend a marriage.

In these circumstances, I am of the considered opinion that the complainant is not diligent in proceeding further with the present case and is taking adjournment on filmsy grounds. Today also neither complainant is present not his main counsel is present.

Counsel Sh. Nitin Garg is present on his behalf who has no Vakalatnama in his favour.

In the entire facts and circumstances, I do not find any justifiable ground to grant exemption to the complainant. The application is dismissed.

Since the complainant is absent without justifiable ground, I deem it fit to dismiss the present complaint case u/s 256 Cr.PC due to non appearance of the complainant. The complaint is dismissed. Both the accused stands acquitted. Their bail bonds stands cancelled. Sureties stand discharged."

4. Thus, it is evident from the impugned order that the Petitioner (the complainant) absented himself on the date of hearing on so many occasions. The purpose of making the attendance of the complainant necessary on each date of hearing after summons to the accused have been issued is that an accused who has to attend the Court on all visiting days should not be put to unnecessary harassment by the complainant by absenting himself.

5. In Associated Cement Company Ltd. v. Keshvanand (1998) 1 SCC 687, the Supreme Court went into the purpose of including a provision like Section 256 Cr.P.C. and observed that the Section affords protection to an accused against the dilatory tactics of the complainant. At the same time, it was observed that the Magistrate has been vested with the discretion not to dismiss the complainant and can adjourn the case for the next date. The Magistrate can do so if the Magistrate finds it would not be justified to dismiss the complaint for non appearance of the complainant. Paras 16 and 17 of the report are extracted hereunder:-

"16. What was the purpose of including a provision like Section 247 in the old Code (or Section 256 in the new Code). It affords some deterrence against dilatory tactics on the part of a

complainant who set the law in motion through his complaint. An accused who is per force to attend the court on all posting days can be put to much harassment by a complainant if he does not turn up to the court on occasions when his presence is necessary. The section, therefore, affords protection to an accused against such tactics of the complainant. But that does not mean if the complainant is absent, the court has a duty to acquit the accused in invitum.

17. Reading the section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the section. The first is, if the court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. The second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the court notices that the complainant is absent on a particular day the court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must therefore be exercised judicially and fairly without impairing the cause of administration of criminal justice."

6. As stated above in the instant case there were several occasions on which the complainant absented without any justification so much so that on some of the dates the Petitioner and even his counsel were not present.

7. In this view of the matter, it cannot be said that the learned ACMM acted illegally or there was a material irregularity in dismissing the complaint and acquitting the Respondents. The learned ACMM exercised his discretion in not adjourning the case properly.

8. The impugned order cannot be faulted. The Petitioner is without any merit; the same is accordingly dismissed.

(G.P. MITTAL) JUDGE APRIL 08, 2013 vk