IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.36960 of 2010 1.RAJIV SETHI son of Sri J.C. Sethi, Sr. Divisional Manager, North & West at Delco 2.Rajesh Nangia, son of Sri Arjun Dev Nangia, Director, A.C. Delco 3.Karl Slym, son of David James Slym, managing Director, AC Delco All working at Plot number 15, Sector, 32, Institutional Area, Gurgaon-122001……petitioner. Versus 1.THE STATE OF BIHAR 2.Mosahrraf usmani son of Ahazi Manzoor Alam, Zoya Enterprises Nagmatia Colony, P.S. Vivil Lines, Dist. Gaya….Respondents. ----------- 2 07.10.2010 Heard learned counsel appearing on behalf of the petitioners and learned A.P.P. appearing on behalf of the State of Bihar. The present petition has been filed for modification/clarification of the order dated 10.2.2009 passed in Cr. Misc. No. 3999 of 2008, whereby the petition filed on behalf of the petitioners under section 482 Cr.P.C. was disposed of with certain observations and directions. The petitioners are facing criminal prosecution under sections 417 and 504 of the Indian Penal Code based on a complaint petition filed by one Mosharraf Usmani. From the aforesaid order dated 10.2.2009 passed by a Bench of this Court, it appears that petitioners as also the complainant had entered into a compromise and they had filed a joint compromise petition in the court below itself and since both 2 the offences are compoundable as provided under section 320 Cr.P.C., parties were directed to appear in the court below and press their compromise petition. The learned court below was directed to pass order in accordance with law in the event the compromise petition is pressed by the parties. Learned counsel for the petitioners submits that despite filing compromise petition and despite the observations/directions of this Court vide order dated order 10.2.2009, the complainant has not been appearing in the court below for last several dates. Even though petitioners were present in the court below and a prayer was made on their behalf for deciding the case in terms of compromise petition, the learned Magistrate is not disposing of the criminal case only because of the reason that complainant was not appearing on the dates fixed. It is true, perhaps, for deciding the criminal case in terms of section 320 Cr.P.C. the presence of the complainant may be necessary, but despite filing of a compromise petition, if the complainant chooses not to appear before the court on several dates, the Magistrate is not powerless and should not sit tight over the matter 3 .The complaint case can be disposed of by exercising power in terms of section 249 Cr.P.C. From the statement made in paragraph 4 of the petition, I find that on several dates the complainant was absent though petitioners were physically present in the court along with their lawyers. In the aforesaid circumstances the order dated 10.2.2009 is modified to the extent that if on issuance of fresh notice the complainant chooses not to appear in the court below for disposal of the complaint case in terms of compromise under section 320 Cr.P.C. then the learned Magistrate may proceed in the matter and decide the complaint case by exercising his power under section 249 Cr.P.C. With the aforesaid observations and directions, the order dated 10.2.2009 passed in Cr. Misc. No. 3999 of 2008 stands modified. The application stands disposed of. M.Rahman ( Birendra Prasad Verma, J )