The distinction between appellate and revisional jurisdiction in the context of dismissing a complaint in default, and the applicability of Section 256 of Cr.P.C. in determining the appealability of trial court's orders.

1. In the above-captioned two petitions, quashing of impugned order of 13th September, 2011 (vide which respondent’s complaint, which was dismissed in default, has been restored for hearing) is sought. In the alternative, quashing of complaint No.1486/1 of 2007 under Sections 385/469/471/500/509/511/120-B and 34 of IPC and summoning order of 29th March, 2008 is sought on merits. However, during the course of hearing, aforesaid alternate prayer was not pressed and impugned order of 13th September, 2011 alone was assailed.

2. With the consent of learned counsel for parties, the above-captioned two petitions were heard together and are being disposed of by this common judgment as they are directed against the common impugned order of 13th September, 2011.

3. At the hearing, learned senior counsel for petitioners had contended that the impugned order takes note of precedents as noted in paragraph No.6 of the impugned order but fails to follow the precedents cited on strange reasoning as contained in paragraph No.13 of the impugned order, which reads as under: -

“Section 256 of Cr.P.C. deals with the non-appearance or death of the complainant. The opening word of the section 256 ‘if summons has been issued on complaint, and on day appointed for appearance of the accused’. Here in the present case, the accused persons have not appeared rather they sought exemption through their pleader Advocates. In these circumstances, instead of dismissing the complaint on account of non-appearance of the complainant, learned Magistrate ought to have adjourned the matter for appearance of the accused persons. Therefore, application filed by the respondent stands dismissed. Order passed by the learned Magistrate requires to be recalled as it was not proper. The revision petition is allowed. Order dismissing the complaint by the learned MM is recalled and set-aside. Trial court record be sent back alongwith a copy of this order. Parties are directed to appear before the trial court on 30.09.2011. Revision file be consigned to record room.”

4. Reliance was placed by learned senior counsel for petitioners upon decisions in Ravi Sharma v. State (NCT of Delhi) 2009 (113) DRJ 494 and Kalpana Tyagi v. Sneh Lata Sharma (2003) 104 DLT 127 to contend that when in the absence of complainant, complaint is dismissed in default, then statutory appeal under Section 378 (4) of Cr.P.C. lies and not a revision petition.

5. Learned counsel for second respondent had supported the impugned order and had relied upon Apex Court's decisions in Associated Cement Co. Ltd. V. Keshvanand (1998) 1 SCC 687 and Popular Muthiah v. State represented by Inspector of Police (2006) 7 SCC 296 to contend that it is trite law that power under Section 256 of Cr.P.C. is not unhindered and must be exercised with a judicial mind. Lastly, it was submitted that the impugned order does not suffer from any infirmity and so, inherent powers of this Court are not required to be exercised and thus, dismissal of above-captioned two petitions is sought by learned counsel for second respondent.

6. It needs no reiteration that where there is abuse of the process of the court or where interference is absolutely necessary for securing the ends of justice, inherent powers under Section 482 of Cr.P.C. ought to be exercised. After having gone through the decisions cited and upon hearing learned counsel for the parties and on perusal of impugned order as well the material on record, I find from trial court's order of 14th December, 2009 (vide which second respondent's complaint (Annexure-C) was dismissed) that default in appearance on behalf of respondent-complainant was viewed seriously by the trial court because on the last date of hearing, personal exemption from appearance was sought on behalf of respondent-complainant and it was granted. Since none had appeared on behalf of respondent-complainant on 14th December, 2009, so complaint (Annexure-C) was dismissed in default and the accused i.e. petitio