^p-'_-v^ iiy"11'' ^ :::% 1 --J^J ,-.€> ../!/-f1' -•\ HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench : Hon'ble Shri RaieshwaLLal Jhanwar, J. Criminal Appeal No. 1135 of 1992 Ghanshyam Das »w versus Dr.L.P.Rathore JUDGMENT Post for pronouncement of Judgment 31 -03-2010 Sd/- R.L. Jhatswar Judge ^,..»aai, '% ^' HI6H COURT OF CHHATTtSGARH AT BILASPUR Cr. ADD. No.1135/1992 SB: Hon'ble Shri Jystice R.L. Jhanwar APPELLANT RESPON&ENTS Shanshyam bas s/o Tarachand aged 50 years, R/o Kharsia Tahsil kharsia District Raigarh. Versus br. L.P. Rathore s/o not known aged about 45 years occupation 6ovt. Service at Government hospital Kharsia District Raigarh. APPLICATEON FOR GRANT OF LEAVE TO A6AINST ACQUITTAL UNDER SECTION 378 (4) OF THE CODE OF CRIMINAL PROCEbURE Appeargnce: Shri S.R.J. Jaiswal, counsel for the appellant. Smt. Somnath Verma, counsel for the respondent. JUbGMENT (Delivered on3|.03.2010) 1. This is a complaint case. Appellant/complainant has preferred this appeal against the order of acquittal dated 6.1.1992, passed by the Judicial Magistrate First Class, Raigarh in Cr. Case No. 184/91, whereby the learned trial Court had acquitted the respondent under Sections 294 of the IPC due to non-appearance of the appellant on 6.1.1992. 2. The case of th6-*comptainant in brief is that wife of the complainant fell down, due to which, she sustained fracture and injuries on her leg and the complainant also sustained injury on his left toe, left leg and one finger of left leg. The complainant was examined for the injuries and x-ray was taken. The complainant took 'SS.iaSs^ fj ^a. % S^-.i/ ^/w"" ^ the x-ray report to the respondent t)r. L.P.Rathore on 13.10.1990 and asked him to give advice what should be done. Dr. L.P. Rathore suggested him to go and show the x-ray to Dr. Choudhary. The complainant went and searched Dr. Choudhary, but Dr. Choudhary was not present in the hospital, therefore, he requested Dr. L.P. Rathore to see the x-ray plate, but in spite of seeing the x-ray plate, he got annoyed, abused the complainant by saying that sala madarchod get out and threw the x-ray plate on the face of the comptainant. After this incident, the complainant told the respondent that they are appointed in the hospital to serve the people and not to misbehave w/ith -the., patients. Then the respondent got annoyed and abused him, due to which he felt bad. The incident was seen by Jagdish, Bajranglal, fiovindram and Suresh Kumar. Thereafter, he lodged the report to the Police Station, but as the Police did not investigate the case, therefore, this complaint was lodged by him bsfore the Magistrate. 3. The complainant has given statement before the trial Court. Evidence of the complainant and other witnesses were examined and after that the Court below registered the case on 20.9.1991 against the respondent under Section 294 of the IPC and ordered to issue notice to the respondent to appear before the Court on 29.10.91. On 29.10.91 respondent could not appear then again the case was fixed for 26.11.91 and thereafter for 6.1.92. On 6.1.92, complainant qnd respondent both were absent; therefore, the Magistrate has dismissed the complaint and acquitted the respondent of the charge. Against th^ said order, complainant has preferred this appeal. 4. Now the only thing wHifch has to be seen by this Court is that whether the order dated 6.1.92 is illegat or not. 5. Learned counsel for the complainant argued that the learned trial Court ought to have given one more chance to the complainant qnd ought not to have dismissed the complaint case acquitting the .---T: •<frss?%».^ •.<%-.-. ^^a^^ respondent and thus the learned trial Court has committed irregularity. 6. On the other hand, learned counsel for the respondent argued that the order of acqujttal of the respondent is correct, as the complainant was not appearing before the learned trial Court, the trial Court is left with no option except to dismiss the complaint filed by the complainant. He submitted that the order is not perverse and illegal. 7. I have heard learned counsel for the parties at length. I have perused the record of the Court below. After perusal of record and orders annexed therewith, it is clear that the complainant had filed this complaint case 14.02.1991 and after taking evidence under Section 200 and 202 of the Cr.P.C. the case was registered on 20.09.1991 under Section 294 of the I.P.C. On 20.09.1991 the case was fixed for the appearance of non-applicant (respondent herein) on 29.10.1991. Thereafter, on 29.10.1991 again case was adjourned because the accused was not present and also the Presiding Officer was on leave and the case was fixed for 26.11.1991 and on 26.11.1991 again the case was fixed for 6.1.1992 for appearance of the accused and an order was also passed, to issue notice to the accused but that was not complied with. On 6.1.1992, since the complainant as well as the accused was not present, at 12.25 p.m. the learned Magistrate had dismissed the complaint case due to non-appearance of complainant and acquitted the respondent / accused. 8. It is not in dispute that the complaint case was registered under's4ction 294 of the I.P.C. which comes under summons trial. Ultimately, the complaint case was dismissed for want of appearance of complainant resulting into acquittal of the respondent. The procedure which is to be followed in a case of non-appearance of complainant pr death of the complainant, has been provided under Section 256 of the Codeof Criminal Procedure, 1973 which reads as under; "256. Non-appearance or death of complainant.— (1)1f the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the 'complainant does not appear, the Magistrate shall, notuuithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day; Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the eomplainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death." 9. This section applies to summons cases only. If the summons has been issued on the complaint and on the date of hearing if the complainant does not appear, the Magistrate shall acquit the accused unless for some reasons he thinks it proper to adjourn the hearing of the case to some other day. A proviso has been inserted to this section and according to the said proviso, if the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. Under the aforesaid ^'ection, Magistrate has been given a discretion to dispense with the attendance of the complainant whether he be a public servant or not. If the Magistrate is of the opinion that his personal attendance is not necessary, in exercising his discretion, he can dispense with the personal attendance of the complainant. It is also true that-under this section, while exercising such discretion, 'i^C'S^^^; /'f%, ^ W's^. 1 1 • '^Vs^:.^',.^: ' ^ ^ ^-y.J ''^... ¥^""""" ..-;^' the Magistrate should act judicially and not arbitrarily. It is also not in dispute that the discretion under the provision may be exercised suo moto w on the application of the complainant. It is atso true that under the Code of Criminal Procedure, there is no provision for restoration, the Magistrate is also not having any power to review or recall any of the order and also cannot order for restoration of the case. 10. It has been held by the Supreme Court in the case of Major General A.S. Sauraya and another v. S.N.Thakur and another, reported in A.I.R. 1986 SC 1440, that the Magistrate has no inherent power to review his order of dismissal and restore the case. Such an order of dismissal of complaint and acquittal of the accused either can be set aside in revision or in appeal against acquittal. The revisional Court can also set aside the order and direct the case to proceed according to law. 11. In the present case, the complaint case was registered under Section 294 of the I.P.C. and cognizance has been taken by the lower Court under that Section. The learned lower Court had dismissed the case due to non-appearance of the complainant and he has no right restore the case as stated hereinabove. The present case is pending since 1991 i.e. more than 18 years have elapsed and the accused person was not to be blamed for the iltegality committed by the Magistrate, who failed to perform his duty of observing proper procedure in the conduct of the trial. There was no error pf technical nature to justify an order of re-trial. The /, ground that the Magistrate failed to perform his obligatory duty cannot be a ground to direct a re-trial, for justice has to be two sided. If it is incumbent to see that the guilty do not escape, it is everi more necessary to see that persons accused of crime are not kept under ifldefinite suspense. The nature and magnitude of the ' pffenee alleged against the accused persons is also not very serious. *llfB: Considerable difficulty may have to be also encountered in securing presence of witnesses in a case with respect to an incident said to have been taken place 18 years back. In these circumstances, I am of the view that this is-not a fit case in which a re-trial should be ordered. The termination of the proceedings should not be interfered with. It will not be just and proper to interfere with the acquittal, although wrongly done. __ 12. In the result, the appeal is dismissed. , ...- -rr— .- -.-....„—. R.L.Jhaswar Judge