CRM No. M-17549 of 2009 1
IN THE HIGH COURT FOR THE STATES OF PUNJAB &
HARYANA AT CHANDIGARH.
CRM No. M-17549 of 2009 (O&M)
Date of decision: 6.7.2009
Suresh and others ...Petitioners
Versus
Rekha ...Respondent
CORAM: HON'BLE MR. JUSTICE RAJAN GUPTA
Present: Mr. Vikram Singh, Advocate, for the petitioners.
Rajan Gupta, J.
The petitioners have impugned the judgment dated 15th
May, 2009, passed by Additional Sessions Judge, Karnal, whereby he
upset the order, passed by Judicial Magistrate Ist Class, Karnal,
dismissing the complaint.
Learned counsel for the petitioners has argued that once the
complaint has been dismissed due to non-appearance of the
complainant, the same could not have been restored. According to the
counsel, there is no provision in the Act for restoration of the same.
I have heard learned counsel for the petitioners and given
careful thought to the facts of the case.
The complaint was lodged by one Rekha against the
petitioners under Sections 406, 498-A, 504, 506 read with Section 34
IPC. After recording the preliminary evidence, the petitioners were
CRM No. M-17549 of 2009 2
summoned to face trial for commission of offences under Sections
498-A/506 read with Section 34 IPC. They put in appearance and were
released on bail. Thereafter, an application under Section 245 (2)
Cr.P.C. was moved by the accused for discharge. On 17th April, 2006,
the complaint was, however, dismissed as the complainant was not
present. The complainant thereafter, on 27th May, 2006 moved an
application for restoration of the complaint on the ground that she could
not put in appearance on 17th April, 2006 as she had sustained injuries
and was confined to bed. The application was, however, dismissed by
the Magistrate on the ground that he could not restore the order
dismissing the complaint. The said order was challenged by the
complainant, respondent herein, on the ground that the case under
Sections 498-A/506 IPC was triable as a warrant case and in the absence
of the complainant, the same could not have dismissed for non-
prosecution. Reliance was placed on judgments reported as Shangara
Singh vs. Joginder Singh, 2001 (1) R.C.R. (Criminal) 123 and Shiv
Kumar vs. Mohd. Saghir, 1997 (1) R.C.R. 709. The revisional court
allowed the revision petition and restored the complaint to its original
number. He directed the parties to remain present before the Magistrate
on 27th May, 2009 for further proceedings.
During the course of arguments, learned counsel has not
been able to point out any legal infirmity with the impugned order,
passed by Additional Sessions Judge, Karnal. The only ground agitated
by him is that the order passed by the Magistrate could not be recalled
CRM No. M-17549 of 2009 3
by him as Criminal Procedure Code does not contemplate a review of an
order passed. He has relied upon the judgment in Adalat Prasad vs.
Rooplal Jindal, 2004 (4) R.C.R. (Criminal) 1 in support of his
contention.
However, I am of the considered view that ratio of the said
judgment is not applicable to the facts of the present case. Admittedly,
the Magistrate declined to review his own order and a revision petition
was preferred by the complainant against the same. The revisional court
allowed the prayer of complainant/petitioner. It restored the complaint
and remitted the case back to the trial court. The revisional court
observed that in view of Section 249 Cr.P.C., the complaint could not
have been dismissed in default. Learned counsel has not addressed any
argument to show that the impugned order is bad in law. He has only
reiterated that order dismissing the complaint in default could not be
recalled by the court. However, it is clear that the order dismissing the
complaint has been set-aside in revisional jurisdiction by the Additional
Sessions Judge, Karnal and has not been recalled by the same court
which dismissed it.
In my considered view, no interference is called for in the
impugned order in the revisional jurisdiction of this court. The petition
is dismissed being devoid of merits.
(RAJAN GUPTA)
JUDGE
July 06, 2009
‘rajpal’