Court No. - 49 Case :- APPLICATION U/S 378 No. - 50 of 2010 Petitioner :- Narendra Handa Respondent :- State Of U.P. & Another Petitioner Counsel :- Sumit Daga Respondent Counsel :- Govt. Advocate Hon'ble Bala Krishna Narayana,J.
Heard learned counsel for the applicant and learned AGA for the State.
By means of this application, the applicant is seeking leave to file an appeal
under Section 378(4) against the order dated 17.5.2010 passed by learned
Judicial Magistrate-II, Saharanpur dismissing the criminal complaint case No.
542 of 2008 (Narendra Handa Vs. Rajesh Sharma) under Section 138 N.I. Act
by which the Trial Court dismissed the complaint by exercising its power
under Section 256 Cr.P.C. The stamp reporter has submitted the following
report on the leave application.
“The perusal of impugned order dated 17.5.2010 passed by learned Judicial
Magistrate, Saharanpur shows that the complaint case has been dismissed for
non-prosecution i.e. summon of complaint. No clear order indicating therein
that accused person has been acquitted and the bail bond are cancelled, have
been passed by the learned Magistrate in the order under challenged.
Section 378(3) Cr.P.C. provides an appeal lies against order of acquitted not
against the order dismissing the case for non-prosecution.
May the Hon’ble Court kindly see whether appeal under section 378(4)
Cr.P.C., is maintainable in view of the language of impugned order.”
Learned counsel for the applicant submitted that this Court in the case of
Vinay Kumar Vs. State of U.P. & anor reported in 2007 (2) JIC 572 (All.)
while considering an identical issue has held that where the Magistrate
dismissed the complaint for want of prosecution it amounted to acquittal of
the accused under Section 256(1) Cr.P.C., and the only remedy provided to
the complainant against such an order is by filing an appeal under Section 378
(4) for granting special appeal to appeal before the Court.
Per contra, learned AGA submitted that the report of the stamp reporter is
correct but he failed to cite any decision to the contrary.
After having considered the rival submissions and perused the material on
record and keeping in view of the case law cited by the learned counsel for the
applicant, I am of the view that an appeal under Section 378(4) Cr.P.C. Is
maintainable at the behest of the complainant against the order dismissing the
complaint for want of prosecution.
In view of the above, the stamp reporter’s report dated 17.5.2010 cannot be
sustained and the same is set aside.
Notice on behalf of opposite party No. 1 has been accepted by learned AGA.
Issue notice to respondent No. 2
Summon the lower Court record.
Order Date :- 22.7.2010
Pk