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2024 Supreme(JK) 402
Item No. 37
Regular List
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
CRM(M) No.317/2021
CrlM No.1111/2021
FAIZAN NABI NATOO & ANR.
…Petitioner(s)
Through:
Ms. Mehreen Altaf, Advocate.
Vs.
ONEEB MUKHTAR NATHKHAN
…Respondent(s)
Through:
None.
CORAM: H ON’BLE MR. JUSTICE SANJAY DHA, JUDGE
Counsel must have explicit authority from clients to withdraw complaints; lack of consent invalidates withdrawal.
Headnote:(A) Code of Criminal Procedure, 1973 - Section 482 - Petitioners challenged orders dismissing their complaint as withdrawn, citing lack of authority by their counsel to withdraw the complaint based on an alleged out-of-court settlement - Court found merit in petitioners' claim that no settlement occurred and that the complaint was at an initial stage. (Paras 1-4)
(B) Authority of Counsel - Counsel exceeded authority by withdrawing complaint without proper consent from petitioners - Court emphasized the necessity of petitioners' consent in legal proceedings. (Paras 2-4)
Facts of the case:
Petitioners filed a petition challenging orders dismissing their complaint as withdrawn, claiming their counsel acted beyond authority by stating an out-of-court settlement existed when it did not.
Findings of Court:
The court found merit in the petitioners' claims and ruled that the withdrawal of the complaint would not bar them from pursuing legal remedies.
Issues: The main issues were whether the counsel had the authority to withdraw the complaint and the existence of an out-of-court settlement.
Ratio Decidendi: The court ruled that the withdrawal of the complaint was invalid as it lacked the petitioners' consent, and the dismissal would not prevent them from seeking other legal remedies.
Result: Petition allowed.
ORDER :
1. The petitioners, through the medium of present petition filed under Section 482 of the Code of Criminal of Criminal Procedure, challenged orders dated 23.04.2019 and 19.08.2021, passed by the learned Judicial Magistrate 1 Class (Judge Small Causes), Srinagar, in a complaint bearing File No.53/M, titled "M/S G. N. Natoo & sons vs. Oneeb Mukhtar Nathkhan". By virtue of the impugned order dated 23.04.2019, the complaint filed by the petitioner has been dismissed as withdrawn observing therein that there has been an out of court settlement between the petitioners and the respondent. In terms of order dated 19.08.2021, application of the petitioners for recalling/reviewing order dated 23.04.2019 has been dismissed.
2. Impugned orders have been assailed by the petitioners, primarily, on the ground that though they had instructed their advocate to withdraw the complaint with liberty to pursue the remedies available in civil law, but the learned counsel exceeded his authority and filed an application for withdrawal of the complaint simpliciter by pleading therein that there had been an out of court amicable settlement between the parties. It is submitted by learned counsel for the petitioners, that, as a matter of fact, there was no settlement arrived at between the parties and it was only a decision taken by the petitioners/complainants to pursue the civil remedies instead of pursuing the complaint which despite lapse of considerable time was not yielding any tangible results.
3. I have heard Ms. Mehreen Altaf, learned counsel for the petitioners, and perused the record.
4. From the material on record, it transpires that the application for seeking withdrawal of the the complaint bears signatures of the counsel for the petitioners and not the signatures of the petitioners. As a matter of fact, the court below has recorded the statement of learned counsel only without insisting on recording of statement of the petitioners. In these circumstances, there appears to be merit in the submission of the petitioners that they had not entered in a settlement with the respondents.
5. In view of the aforesaid position coupled with the fact that the respondent was yet to be served in the complaint and the complaint was at the initial stage, it would not be necessary to put the respondent to notice in this petition.
6. The petition is, accordingly, disposed of by providing that notwithstanding anything contrary contained in the order impugned, the dismissal of the complaint of the petitioners as withdrawn in terms of the order impugned dated 23.04.2019 shall not be a bar for the petitioners to avail of the remedies available to them in law including the remedies in civil law.
