The absence of the complainant at the pre-summoning stage cannot be a ground for dismissal of the complaint.

Nirmaljit Kaur, J.

1. This is a petition under Section 482 of Cr.P.C for setting aside the impugned order dated 15.01.2010, whereby, the Complaint No. 66/07 dated 11.08.2007 titled as Gurbachan Singh v. Amar Singh and another has been dismissed in default by the Additional Chief Judicial Magistrate, Hoshiarpur and also to set aside the impugned order dated 29.10.2010 passed by the Additional Sessions Judge (Ad hoc) Fast Track Court, Hoshiarpur thereby dismissing the revision filed by the petitioner.

2. Facts of the case are that the petitioner filed a complaint against the respondents under Sections 323, 324, 452, 506/34 IPC in the Court of Additional Chief Judicial Magistrate, Hoshiarpur on 11.08.2007 and levelled allegations as contained in the complaint. The petitioner examined two witnesses in his favour in preliminary evidence and the case was adjourned for the remaining PWs.

3. It is contended that the complaint was listed on 24.10.2009. The petitioner noted down the next date of hearing as 15.02.2010 and accordingly the counsel for the petitioner made entry in his Diary on 15.02.2010. On 15.02.2010, the counsel for the complainant having found that the case is not listed for hearing, he inquired into the matter and he came to know that in fact, the complaint, in question, was listed for hearing on 15.01.2010 and not on 15.02.2010 and as such since neither the complainant nor his counsel appeared before the Court, the Additional Chief Judicial Magistrate dismissed the complaint in default vide order dated 15.01.2010.

4. The petitioner filed the revision petition against the order dated 15.01.2010 which was also dismissed by the Additional Sessions Judge, Hoshiarpur vide order dated 29.10.2010.

5. Heard.

6. Notice need not be issued in the present case as the respondents have not been summoned as yet and are not appearing before the trial Court as on date.

7. Learned counsel for the petitioner has also relied on the judgment rendered by Delhi High Court in the case titled as Indocon Micro Engineers v. Pine Technology Pvt. Ltd., reported as 2003(3) RCR (Criminal) 695, wherein, in similar situation, the learned Single Bench allowed the revision petition against the order dismissing the complaint in default without issuing notice of the petition as the respondent had not been summoned as yet.

8. The issue involved in the present case is whether the private complaint could have been dismissed in default after pre-summoning evidence was recorded on account of non-appearance of the complainant. The said issue is covered by the judgment rendered in the case of Joga Singh v. State of Punjab, reported as 2007(1) RCR (Criminal) 770 which reads as under :-

"9. It is, thus, apparent that Sections 200 to 203 of the Code, which govern procedure to be adopted, at the pre-summoning stage, do not impose any statutory duty upon a complainant to appear, in person on each date. His absence, therefore, cannot be a ground to dismiss a complaint for non-prosecution. Where, a complainant fails to appear, whether in person or through counsel, at the pre-summoning stage, the Magistrate is required to appraise the pleadings, the evidence, if any, adduced in support thereof and thereafter proceed to either dismiss the complaint, in terms of Section 203 of the Code or issue process under Section 204 of the Code. At the pre-summoning stage, Magistrate cannot dismiss a complaint for failure of the complainant to enter appearance and for want of prosecution."

9. In view of the above, the impugned order dated 15.01.2010 passed by the Additional Chief Judicial Magistrate, Hoshiarpur is set aside. The criminal complaint is restored and it shall be proceeded with from the stage on the date the complaint was dismissed in default.

10. Parties shall appear before the trial Court on 01.02.2011.

11. Allowed as above.