Madras High Court
S. Nachimuthu vs Jawahar on 9 August, 2021
Crl.R.C.No.1128 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.08.2021
CORAM:
THE HONOURABLE MR. JUSTICE RMT.TEEKAA RAMAN
Crl.R.C.No.1128 of 2017
S. Nachimuthu .. Petitioner
Vs.
Jawahar .. Respondent
PRAYER : Petition filed under Section 397 read with 401 of the
Criminal Procedure Code, to set aside the order of discharge dated
21.03.2011 made in C.C.No.226 of 2011 on the file of the learned
Judicial Magistrate No.1, Udumalpet.
For Petitioner : Mr.D.R. Arun Kumar
For Respondent : Mr.N. Umapathi
ORDER
The matter is heard through "Video Conference".
2. This criminal revision case is filed against the order dated
21.03.2017 passed by the learned Judicial Magistrate No.1, Udumalpet,
in C.C.No.226 of 2011.
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Crl.R.C.No.1128 of 2017
3. Heard the learned counsel for the petitioner and the learned
counsel appearing for the respondent and perused the records.
4. In view of the judgment of a Full Bench of this Court in
S.Ganapathy Vs. N.Senthilvel [(2016) 3 MLJ (Crl.) 641], a complainant
(in a private complaint), who is not a victim has a remedy and can file an
appeal in the event of acquittal of the accused after obtaining leave to
appeal under Section 378(4) of Cr.P.C. Further, in a private complaint,
even if the victim is not a complainant, he has a right to file an appeal
under the proviso to Section 372 of Cr.P.C., but he has to seek leave as
held by the Hon'ble Supreme Court in the case of Satya Pal Singh Vs.
State of Madhya Pradesh and others, reported in (2015) 15 SCC 613.
5. The impugned order passed by the learned Judicial
Magistrate No.1, Udumalpet, reads as follows:-
"Accused present. Complainant not present. Trial not taken.
This court already sufficient time given. Till date complainant not taken
the trial. Accused continuously present. Today complainant side no
representation. Considering the above facts no use to adjourn the
matter. Hence, it is ordered to stop the proceedings. Accused to be
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Crl.R.C.No.1128 of 2017
discharged from this case."
6. On a perusal of the order passed by the learned Magistrate, it
is seen that for the continuous non appearance of the complainant, all
further proceedings was stopped and consequently, the accused was
discharged from the case. When the proceedings was stopped and
accused was discharged from the case, it has effect of acquittal and hence,
as held by the Full Bench of this Court in the judgment referred supra,
only appeal will lie.
7. In this case, since the criminal revision case is filed treating it
as a simple discharge, Registry is directed to issue notice to the learned
counsel for the petitioner on the point of limitation and permit him to
convert the above criminal revision case as criminal appeal, if it is within
the period of limitation.
09.08.2021
AT/jrl
Index :Yes/No
Internet :Yes/No
RMT.TEEKAA RAMAN,J.,
http://www.judis.nic.in
Crl.R.C.No.1128 of 2017
AT
To
1.The Judicial Magistrate No.1,
Udumalpet.
Crl.R.C.No.1128 of 2017
09.08.2021
http://www.judis.nic.in
