1 (crim appln 726 of 2010)) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.726 OF 2010 S.R. Arun ...Petitioner Vs. A.R.A. Law Bangalore and Ors. ...Respondents ----- Mr.Prashant Gawali i/b. Renuka Laxmeshwar for Petitioner Mr. Sudeep Pasbola i/b. Trupti Shenoy for Respondent No.1 Mr.A.S. Shitole -APP for the State. ----- CORAM: V.M. KANADE J. DATED: 15TH SEPTEMBER, 2010 P.C. 1. Heard the learned Counsel for the Petitioner and the learned Counsel for the Respondents. 2. The Petitioner being aggrieved by the order passed by the Sessions Court in revision application filed by the Respondent No.1 herein, has preferred this writ petition under Article 227 of the Constitution of India. 2 (crim appln 726 of 2010)) 3. Brief facts are as under: The respondent No.1 filed a compliant before the learned Metropolitan Magistrate, 33 rd Court, Ballard Pier, Mumbai vide C.C. No. 140/SW/2005 which was thereafter transferred to 16 th Court, Ballard Pier, Mumbai. A compliant was filed for the offences punishable under sections 403, 406 of the Indian Penal Code. On 18.6.2008, the Learned Magistrate was pleased to dismiss the complaint since both the Complainant and his advocate were absent. Being aggrieved by the said order, the Respondent No.1 filed a revision application in the Sessions Court. The said revision application was allowed and the order of dismissal of the complaint was set aside and the complaint was restored to the file. Being aggrieved by the said order, the present writ petition has been filed. 4. The learned Counsel for the Petitioner submitted that as a result of dismissal of the complaint, the accused was acquitted and therefore, the remedy which 3 (crim appln 726 of 2010)) was available to the original complainant was to file an appeal against the acquittal in this Court. He submitted that the revision application was not maintainable since the Sessions Court did not have jurisdiction to try and hear the said revision application. In support of the said submission, he relied on a judgment of the Division Bench of this Court in the case of Gajanan Parshuram Chopade vs. Mahatma Jyotirao Phule Gramin Bigarsheti Sahakari Patsanstha Maryadit (2009 DGIS (Cri.)Soft 777). He submitted that since the Division Bench has held that an order passed under section 256 of Cr.P.C. amounted to acquittal of the accused and, therefore, the remedy available to the complainant was to file an appeal against the acquittal in this Court. 5. On the other hand, the learned counsel for the Respondent No.1 submitted that the ratio of the judgment would not apply to the facts of the present case. He submitted that the compliant was filed for 4 (crim appln 726 of 2010)) the offences punishable under sections 403 and 406 and, therefore, it was a warrant triable case and as such, the provisions of section 256 of Cr.P.C. would not be applicable. He submitted that dismissal of the complaint, therefore, on account of absence of the Complainant in the present case would fall under provisions of section 249 of Cr.P.C. and not under section 256 of Cr.P.C. He, therefore submitted that since under section 249 specifically lays down that on dismissal of the complaint the accused is discharged, the revision application was maintainable against the order of discharge passed by the Sessions Court. 6. After having heard both the Counsel at length, in my view, the ratio of the judgment in the case of Gajanan Parshuram Chopade (Supra) would not apply to the facts of the present case. In the present case, admittedly, the order was passed under section 256 acquitting the accused and, therefore, the Division Bench after taking into consideration number of 5 (crim appln 726 of 2010)) judgments of various High Courts and the Supreme Court had held that the remedy which was available to the Complainant was to file an appeal against acquittal. In the present case, admittedly, the complaint was filed for the offences punishable under sections 403 and 406 of the IPC. Both of which are cognizable offences and as such, the procedure under section 256 of Cr.P.C. would not apply to such a complaint which has to be tried as a warrant triable by the Magistrate. Section 249 empowers the Magistrate to hear the warrant triable case and to dismiss the complaint on account of absence of the Complainant and his advocate and discharged the accused. Section 249 reads as under: “249. Absence of complainant- When the proceedings have been instituted upon compliant, and on any day fixed for the hearing of the case, the complainant is absent, and the offence may be lawfully compounded or 6 (crim appln 726 of 2010)) is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused.” 7. It is apparent,therefore, that the said order appears to have been passed by the Learned Magistrate under section 249 and not under section 256 of Cr.P.C. and, therefore, ratio of the judgment in the case of Gajanan Parshuram Chopade (supra) would not apply to the facts of the present case. Since an order under section 249 dismissing the complaint results in discharge of the accused, a revision application would be maintainable against the said order. Therefore contentions raised by the learned Counsel for the Petitioner cannot be accepted. There is no reason, even otherwise, to interfere with the order passed by the Sessions Court. 7 (crim appln 726 of 2010)) 8. Writ petition is dismissed. Both the parties may appear before the Trial Court on 18 th October, 2010. (V.M. KANADE J.)