Though the Section referred to by the Magistrate, would not be
the decisive factor in deciding this appeal, the fact remains, that in
warrant cases, the termination of the proceedings on account of the
absence of the complainant, is contemplated only under Section 249
of the Code. Now, this consequence of the absence of complainant
might follow only in cases where the case relates to the offences which
can be lawfully compounded, or which are not cognizable offences.
Even in that case, the termination of the proceedings would be by way
of ‘discharge’ of the accused and not by way of an ‘acquittal’.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 1153 OF 2011
WITH
CRIMINAL APPEAL NO. ________ OF 2012
Sau Sudha Kashinath Bari ...Applicant/Appellant
Versus
Nirmala Magan Chavan and others ...Respondents
.....
CORAM : A.M. THIPSAY, J.
DATED : 9TH FEBRUARY, 2012
ORAL ORDER :-
1 Heard the learned advocates for the respective parties.
2. Leave granted.
3. By consent, the appeal is admitted and taken up for hearing
forthwith. Mr. Kulkarni, the learned advocate for respondent Nos. 1 to
4 and Mr. Shaikh, the learned APP for respondent No.5-State, waive
service of notice.
4. The appellant (hereinafter referred to as the "complainant" for
the sake of convenience and clarity), is the original complainant. She
had filed a complaint against the respondent Nos. 1 to 4 (hereinafter
referred to as the "accused" for the sake of convenience and clarity),
alleging commission of offences punishable under Sections 325, 323,
448, 504, 506 of the I.P.C. r.w. Section 34 of the I.P.C. by them, in the
Court of the learned Chief Judicial Magistrate, Dhule. The learned
Chief Judicial Magistrate, after examining the complainant on oath,
issued process against the accused persons requiring them to appear
and answer to the charge of offences punishable under Section 324,
323, 448, 504 and 506 of the I.P.C. r.w. Section 34 of the I.P.C. It is
seen from the record that the complaint was pending for a number of
years but no evidence was adduced. On 9.12.2010, which was a date
of hearing of the case before the Magistrate, the complainant was
absent. The learned Magistrate, therefore, passed an order
terminating the proceedings and acquitting the accused persons,
purportedly under Section 256 of the Code of Criminal procedure. It
would be appropriate to reproduce here the operative order passed by
the learned Magistrate :-
“1. The complaint is dismissed for default for want of
Prosecution.
2. The accused persons are Acquitted vide section 256 of
the Code of Criminal Procedure for the offence 325, 323, 448,
504, 506 r/w 34 of the Indian Penal Code.
3. The Bail Bonds of the accused are cancelled.”
6. The impugned order is patently illegal.
7. It is clear that the case was a warrant case, as defined in clause
(x) of Section 2 of the Code of Criminal Procedure, (hereinafter
referred to as ‘the Code’ for brevity). The procedure for trial of warrant
cases is found in Chapter XIX of the Code. This Chapter covers
warrant cases instituted on police report as well as the cases
instituted otherwise than on police report. The case before the
Magistrate fell in the second category.
8. A perusal of the provisions of Chapter XIX of the Code, makes it
clear that there is no provision permitting acquittal of the accused
persons, on account of absence of the complainant. Moreover, the
provisions also make it clear that before the stage of framing of
charge, any termination of proceedings can never amount to an
acquittal; and the proceedings before the stage of framing of charge
can be terminated only by way of discharge of the accused. The legal
concept, consequences and effect of 'discharge' are quite different
from that of the 'acquittal'.
9. The Magistrate has, referred to the provisions of Section 256 of
the Code, which applies only to summons cases. Therefore, the
Magistrate was not right in resorting to those provisions in the present
case.
10. Though the Section referred to by the Magistrate, would not be
the decisive factor in deciding this appeal, the fact remains, that in
warrant cases, the termination of the proceedings on account of the
absence of the complainant, is contemplated only under Section 249
of the Code. Now, this consequence of the absence of complainant
might follow only in cases where the case relates to the offences which
can be lawfully compounded, or which are not cognizable offences.
Even in that case, the termination of the proceedings would be by way
of ‘discharge’ of the accused and not by way of an ‘acquittal’.
11. Since the Magistrate has passed an order of acquittal in the
instant case, the order is not in accordance with the provisions of law.
The same therefore, needs to be interfered with.
12. Mr. Mukul Kulkarni pointed out that the learned Magistrate has
passed the impugned order on the assumption that the case before
him was a summons case. Indeed, in the very first sentence of the
impugned order, the observations of the Magistrate are as follows:-
" This is a summons case for the offence punishable
under sections 325, 323, 448, 504, 506 r/w 34 of the Indian
Penal Code. ...........”
13. This was factually wrong for two reasons. Firstly, the process
had been issued with respect to the offence punishable under Section
324 of the I.P.C. and not under Section 325 of the I.P.C. Thus, this
observation is factually incorrect. Further, whether the offence would
be punishable under Section 325 of the I.P.C. or 324 of the I.P.C., in
either case, it would be a warrant case requiring the procedure in
Chapter XIX of the Code, to be followed.
14. As a result of the aforesaid discussion, it follows that the appeal
should be allowed.
15. The appeal is accordingly allowed.
16. The impugned order is set aside.
17. The proceedings before the Magistrate are revived. The learned
Magistrate shall proceed further with the case in accordance with law.
18. The learned Magistrate shall endeavour to dispose of the case
as early as possible, and in any event, within a period of six months
from the date of this order.
19. The Record and Proceedings be sent back forthwith.
20. The appeal stands disposed of accordingly.
( A. M. THIPSAY, J.)
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