IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR. .Cr.M.P. 2,17 OF 2006, Applicant Accused Smt. Sudesh Lekhi (wrongly typed as Smt. SudeshiLekhi in the impugned order) aged about 59 years, W/o. Shri $udarshan Kumar, Proprietor Navbharat Enterprises, Dabka Takapar Khurd (Khadan) Village Tekapar Khurd Tahsil Khairagarh, District Rajnandgaon (C.G.). Respondent Complainant VERSUS Government of India through, a. Inspector of Mines, Office of the Director of Mines (Safety), Bilaspur Region, Bilaspur (C.G.) APPLICATION UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE HIGH COURT OF CHHATTISGARH AT BILASPU R (Hon. Mr. Justice Pritinker Diwaker Cr. P. No. 217 of 2006 ) M. Smt. Sudesh Lekhi VERSUS Government of lndia ‘ r NDENT RESPO I COMPLAINANT on2{.8.2010 Post for pronouncement of the judgmen APPLICANT t HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. JUstice Pritinker Diwaker) Cr. M. P. No. 217 of 2006 Smt Hamlda SIddIqUI counsel fer the apphcant Smt Fouzna Mlrza Assnstant Sol|Cltor General for the respondent \ l ‘ > ‘ \ i x ‘ \ ‘ I APPLIEATION UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE ‘ , “ u: g ’ o’R D E R (23.08.2010) ‘\ The present petition is directed against the order dated 16.110200 ‘6 I ‘I Annexure A—1 passed by Additional Sessions Judge Rajnandgaon in Criminal ReVISIon No 74/2005 allowmg the reVision as filed by the respondent assailing the order dated 15 O4 2005 Annexure A 3 by which the learned Magistrate has rejected the application as filed by the f respondent under section 256 of Cr.P.C. 2. Brief facts of the case are that on 20 12 2000 a complaint case No 15/2002 later on re numbered as Criminal Case No 405/2002 wa filed by the respondent/complainant Government of India before thj learned Chief JudICIal Magistrate Rainandgaon under various prowsmnd of Mines Act The said complaint was dismissed on 15 O4 2005 for want >. of prosecution as there was no representation on behalf of the respondent/Government of India On 15 O4 2005 itself an application was filed by the respondent under section 256 of the Code of Criminal e concerned officer had been transferred to .wul ‘i Procedure stating in it that th PerSIa and therefore the said officer could not remain present before the Court After conSidering the said application on 15 04 2005 itself the learned Magistrate has rejected the application as filed by the respondent ' { under section 256 of the Code of Criminal Procedure The said order of the Magistrate was assailed by the respondent by way of Criminal n before the Additional Sessmns Judge Rainandgaon and Vide ReviSio i j I I APPLICANT Smt. Sudesh Lekhi VERSUS RESPONDENT] Government of lndia COMPLAINANT I remediless and if so deSIre it may file a second complaint against the. applicant She submits that the order dismissmg the complaint in its veryf nature is a final order and the reVIsion against the same is not' maintainable and the only remedy which was available to the respondent/Union of india was to file a petition under section 378 (4) of I the Code of Criminal Procedufe. .~%’ impugned order dated 16.11.2006 the same has been allowed. Hence ‘ the present petition 3. Contention of the learned counsel for the applicant Is that once the complaint Itself ls dlsmlssed, it amounts to acqurttal of the accused/applicant and for which the remedy for the respondent/complainant was not to file a revision but to file a petitio under Section 378 (4) of the Code of Criminal Procedure before the Hig I j Court She submits that the moment the complaint is dismissed a righ was accrued in favour of applicant and therefore the Rewsronal Court below was not Justified in setting asrde the order of the Magistrate She further submits that the Revrsronal Court has further erred in law while Ving speCIal priVIIege to the Government of india and accepting its i submis5ions that on‘all the dates the Government of india cannot appear before the Magistrate ln support of her contention she placed reliance on the demsron of the Supreme Court in the matter of Ma] Genl A Si Gauraya and another v S N Thakur and another reported in AIR 198d SC page 1440 She submits that the respondent/complainant is not' I there is no infirmity in the same She submits that the ReVIsional Court is i fully justified in passmg the impugned order. She further submits that when the reVi5ion was filed before the Court below no objection “ whatsoever was raised by the applicant regarding the maintainability of , i the said reVISion othenNise the respondent could have filed a petition kunder Section 378 (4) of the Code of Criminal Procedure She submits a that if ultimately this Court comes to a conclu5ion that the Rewsronal‘ Court ought notvto have interfered With the order under challenge before -. . , ’ r '4. On the other hand it has been argued by the Assistant SolICitor General that the impugned order is strictly in accordance With law anal w I ;w } p» w n um wwwwuMA-“m‘w, wamrwm Jam u, @ _3~ it, this Court may grant liberty to the respondent to avail the remed available to it under the law. 5. Heard counsel for the parties and perused the material available o record. 6. A bare perusal of Section 256 of the Code of Criminal Procedure unambiguously contemplates that if the complainant fails to appear on the l date fixed for the appearance'of the accused or any subsequent date l thereto, the Magistrate shall, notwithstanding anything contained in thq‘ I' Code acquit the accused unless for some reason he thinks it proper td adjourn the hearing of the case to some other date ln this case thé complaint of the complainant has been dismissed by the Magistrate because of the absence of the complainant who was reqUired to give eVidence" on the date appomted for hearing. Thus by Virtue of the provisions ,of Section 256 of the Code of Criminal Procedure, for all " intents and purposes, the order of dismissal of complaint is an order of acquittal. 7. Section 378 (4) of the Code of Criminal Procedure provides that ' against an order of acquittal passed in any case instituted upon complaint the complainant after grant of special leave to appeal from th % . order of acquittal may present an appeal to the High Court Thus a, t 8. Thus since the remedy of the respondent/complainant was to file an appeal against the order of acquittal, therefore, there being specifiq *; 2 t provision in the Code for redressal- of his‘grievance, it could not be‘, permitted to file a revision against the order of dismissal of the cemplaint‘ and in this view of the matter the Revisional Court has exceeded its jurisdiction in setting aside the order passed by the Magistrate dismissing the complaint of the complainant. ;a emir «AH \ complainant has a right of appeal against an order of acqUittal ’ l , t i L 9. ln view of above, the petition is allowed. The order of the Revisional ' Court dated 16.1 1 .2006 is hereby set aside. The respondent herein would however be at liberty to avail the appropriate remedy available to it under l a—_._e~/i:"“‘“x the law. : 5d]- , f L ‘