IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL. Crl. Misc. Application (C-482) No. 330 of 2010 Dara Singh S/o Sri Hari Singh R/o Gangori (Garampani), Tehsil Bhatwari District Uttarkashi. ……………….. Petitioner Versus 1. State of Uttaranchal through Secretary Home, Dehradun 2. Smt. Deveshwari Devi @ Kuka D/o Sri Sher Singh At present R/o Tiloth Power House, Patti Badagaddi, Tehsil Bhatwari, District Uttarkashi ………… Respondents Mr. Loendra Dobhal, Advocate for the petitioner. Mr. M.A. Khan, Brief Holder for the respondent No. 1 / State. Hon’ble Prafulla C. Pant, J. Heard learned counsel for the petitioner and learned Brief Holder for the respondent No. 1 / State. 2) By means of this petition, moved under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), the petitioner has sought quashing of order dated 01.06.2009, passed by Judicial Magistrate, Uttarkashi, in Criminal Complaint Case No. 80 of 2008; Dara Singh Vs. Smt. Deveshwari Devi, relating to offence punishable under Section 494 of I.P.C., whereby said Court has dismissed the criminal complaint for non- prosecution (in absence of the complainant). The petitioner has also challenged the order dated 27th of March 2010, passed by Sessions Judge, Uttarkashi, in Criminal Revision No. 19 of 2009, whereby revision against the order passed by the Magistrate, has been dismissed. 3) Brief facts of the case are that the petitioner filed Criminal Complaint Case No. 588 of 2007 (new No. 80 of 2008) before the Chief Judicial Magistrate, Uttarkashi, which was transferred to the court of Judicial Magistrate, Uttarkashi. In said criminal complaint the petitioner / complainant pleaded that his wife Deveshwari Devi got married to one Jaipal Singh, while the marriage with the petitioner was subsisting. The Magistrate appears to have summoned the respondent Deveshwari Devi to face the trial in respect of offence punishable under Section 494 of I.P.C. However, when the case was listed for prosecution evidence under Section 244 of Cr.P.C. (i.e. before framing of the charge) on 01.06.2009, the complainant did not appear, on which the Judicial Magistrate dismissed the criminal complaint for non- prosecution,a t 11:10 A.M. 4) It is pleaded on behalf of the petitioner / complainant that he could reach the court at 12:00 noon. It is pleaded that the trial court has committed error of law in dismissing the complaint in early hours of the court. It is also contended that revisional court has also erred in law in dismissing the revision. 5) The functioning of the civil courts in the State of Uttarakhand starts at 10:30 A.M. If the case is called out at 11:10 A.M. and the complainant was absent, in view of the provision contained in Section 249 of Cr.P.C., the Magistrate has committed no error of law in dismissing the criminal complaint for want of prosecution. The Magistrate was well within his powers under Section 249 of Cr.P.C. to dismiss the criminal complaint in absence of the complainant. Had it been a case of summons trial, the Magistrate could have passed similar order under Section 256 of Cr.P.C., in which case it would have amounted acquittal of the accused. But, if the power is exercised under Section 249 of Cr.P.C., before framing of the charge, it amounts only discharge of the accused, and such circumstance a fresh complaint can be filed by the complainant disclosing the dismissal of the criminal complaint filed earlier before framing of the charge. Situation would be different if after framing of the charge, at the stage of 246 of Cr.P.C., the complainant absents himself. In that case in respect of warrants trial, the accused stands acquitted, and there after, fresh criminal complaint gets barred by Section 300 of Cr.P.C. But, in the present case, the order dated 01.06.2009, appears to have been passed at the stage of 244 of Cr.P.C., and the proper course of action for the petitioner was to file fresh criminal complaint disclosing the dismissal of the earlier criminal complaint before framing of the charge. As such, this Court is of the view that neither the trial court, nor the revisional court has committed any error of law in passing the impugned orders challenged before this Court under Section 482 of Cr.P.C. 6) For the reasons as discussed above, this petition under Section 482 of Cr.P.C. is summarily dismissed with the observations, made above. (Prafulla C. Pant, J.) Dt. April 20, 2010 H. Negi